by Gregory Morvillo

I find it fascinating when two people look at the same thing and come to completely different conclusions about it.  OK … maybe fascinating is too strong a word, but it is interesting that two people can see the exact same thing and disagree on what it means.  One might look at an impressionist painting and say “it’s a masterpiece” while another says “it’s garbage.”  One might read a book and believe it inspired them and another might say it inspired them to vomit.  And on it goes.  Mostly, I think these things boil down to personal preference, emotional connection, and other subjective ways of evaluating things.

But what about something that should be devoid of subjective viewpoints and emotional connections?  For example, what about caselaw?  Surely, judges, particularly circuit court judges, try to view things dispassionately and objectively.  And yet, we still have circuit splits.  Some of this can be explained if there is no definitive interpretation of a law floating around.  But what about when the Supreme Court has spoken on an issue? In that case, no circuit split should exist.  And yet, it happens.

One such issue is important to those who find themselves in front of one of the SEC’s administrative law judges (“ALJ”).  Now, before we go on, I must disclose that I find the whole ALJ process at the SEC to be one-sided and unfair.  The number of wins the SEC has on its home-court makes them harder to beat than the New England Patriots. The fact that the Commission, the same entity, that made the decision to charge a defendant, is the same body  that hears the initial appeal feels patently  unfair.  Continue reading →