Brief for Urska Velikonja and Joseph Grundfest as Amici Curiae in Lucia v. SEC, No. 17-130 (U.S. Supreme Court)

Abstract

In Lucia v. SEC, the Supreme Court will consider whether administrative law judges of the Securities and Exchange Commission are Officers of the United States within the meaning of the Appointments Clause. Professors Velikonja and Grundfest write in support of neither party, taking no position on the merits of the case and expressing no view as to its resolution. Instead, the brief rejects two empirical claims advanced in the debate and relied upon in the briefing. The brief first summarizes existing empirical research rejecting the hypothesis that the Commission’s ALJs are biased in favor of the Commission, and extends those findings with newly collected data confirming that there is no statistically reliable evidence that ALJs systematically resolve cases in a manner that differs from the resolution of equivalent SEC actions filed in federal court. Second, we find no evidence that the Commission has steered a disproportionate share of contested proceedings to ALJs in order to capitalize on an alleged “home court” advantage. We urge that the Court address the question presented as a matter of constitutional interpretation as to which the available statistical evidence provides no meaningful insight.