Disgorging Emoluments

This Article is about unjust enrichment. It includes a theory of an unjust enrichment cause of action against executive actors who receive unlawful emoluments. Interpretations of the boundaries of unlawful emoluments range from receipt of a gift or benefit because of the position of power held to quid pro quo exchanges of a thing of value in exchange for government information or advantage. Wherever the proper line, the purpose of the law of unjust enrichment is to prevent and undo benefits one has no right to retain. It achieves those goals with the use of restitution remedies including disgorgement of unjust profits. Unjust enrichment is particularly suited to remedy wrongful emoluments because the goal is to undo improper gain rather than compensate for any plaintiff losses. Unjust enrichment law and restitution-based remedies law are experiencing a revival in the United States. This resurgence of interest in and use of unjust enrichment theory has led to increased application of restitutionary remedies. This Article proposes the restitutionary-based remedy of disgorgement of emoluments that constitute unjust gains. This cause of action and remedy already lie in American common law. Unjust enrichment provides a freestanding basis for disgorgement relief as well as restitution remedies to protect against fiduciary breaches and violations of other protected interests. Article III standing and other jurisdictional obstacles may pose a need for a cleaner, additional path. No existing statutes cover this field. Thus, I propose a statutory solution that operationalizes restitutionary disgorgement as the preferred remedy to undo unjust emoluments

Asymmetric World Jurisprudence

This article argues that the Supreme Court should reconsider its prudential justiciability doctrines and their underlying assumptions. As a global theory, this Article offers a judicial dynamism model. It then articulates the relevance of the political question doctrine and the need to view the doctrine as prudential rather than constitutional. First, I discuss the Supreme Court\u27s increased use of judicial minimalism and the political question doctrine to avoid important cases and reduce its docket. Second, I describe my model, in which the court takes a dynamic approach to such issues, dependent upon the political climate, to maintain its appropriate stature and the Constitution\u27s intended balance of powers. I use two recent cases to illustrate my prescription and how it is particularly relevant to the ongoing war on terror. Third, I examine the long-standing political question doctrine and show how dynamism would clarify that it is a prudential, not constitutional, limitation. Finally, I endorse a dynamic court, which takes up important constitutional questions when the balance of powers warrant that the federal judiciary assume its jurisdiction and speak boldly

Ratios, (Ir)rationality & Civil Rights Punitive Awards

This article will focus on the effect of the Court’s tightening of the ratio prong on federal civil rights cases. In particular, it addresses whether federal appellate courts feel constrained by State Farm’s stated preference for single-digit ratios, or instead, jettison the ratio strictures in favor of other prongs...The problems are two-fold in civil rights line of cases: (1) some federal circuit courts bar punitive damages if there are no compensatory damages; and (2) courts reviewing a punitive award where compensatory damages exist may feel compelled to apply rigidly a single-digit ratio to comport with State Farm. Barring or severely limiting punitive damages – whether on the basis of nonexistent compensatory damages or a dogmatic application of State Farm – does not comport with the typical world of civil rights violations. For many civil rights plaintiffs, immunity barriers may foreclose any recovery. For cases where the plaintiff survives an immunity barrier or where none applies, legal damages may still remain elusive. Despite the high dignitary interests at stake and high public interest in enunciation of standards and vindicating rights, civil rights cases often involve low provable compensatory harm

The Restitution Revival and the Ghosts of Equity

A restitution revival is underway. Restitution and unjust enrichment theory, born in the United States, fell out of favor here while surging in Commonwealth countries and beyond. The American Law Institute’s (ALI) Restatement (Third) of Restitution & Unjust Enrichment streamlines the law of unjust enrichment in a language the modern American lawyer can understand, but it may encounter unintended problems from the law-equity distinction. Restitution is often misinterpreted as always equitable given its focus on fairness. This blurs decision making on the constitutional right to a jury trial, which preserves the right to a jury in federal and state cases for suits at common law satisfying specified dollar amounts. Restitution originated in law, equity, and sometimes both. The Restatement notably attempts to untangle restitution from the law-equity labels, as well as natural justice roots. It explicitly eschews equity’s irreparable injury prerequisite, which historically commanded that no equitable remedy would lie if an adequate legal remedy existed. Can restitution law resist hearing equity’s call from the grave? Will it avoid the pitfalls of the Supreme Court’s recent injunction cases that return to historical, equitable principles and reanimate equity’s irreparable injury rule? Losing anachronistic, procedural remedy barriers is welcome, but the Restatement must be careful to maintain the soul of unjust enrichment, which includes flexibility, creativity, justice and morality underpinnings, and discretion. The project’s success depends on streamlining the language, unhinging from equity’s arcane procedures, and providing guidance for bounded discretion. I argue that the ALI’s groundbreaking restitution project will suffer because it adopts language of inadequacy and affirms the hierarchy of remedies, which prefers legal to equitable remedies. The Restatement notably liberates all restitutionary remedies, including those emanating from equity (e.g., constructive trusts), from demonstrating the inadequacy of available remedies at law. This shift moves in the right direction, but ultimately the project falls short in a provocative section that authorizes disgorgement of profits for opportunistic breaches of contract. The disgorgement remedy reallocates the breacher’s wrongful profit to the plaintiff if the breach is deliberate and profitable and the contractual entitlement inadequately protected. Disgorgement is an alternate remedy to traditional contract damages and, notably, would apply without the contractual breach rising to the level of a tort or breach of fiduciary duty. The inadequacy requirement may purposefully narrow a bold, and perhaps feared, disgorgement remedy, but it creates unnecessary confusion by taking the focus away from the breacher’s opportunism and redirecting the focus to the adequacy of plaintiff’s compensation. Even as the restitution revival garners traction, inadequacy haunts this important restitutionary remedy with equity’s ghosts

Remedies, Equity & \u3ci\u3eErie\u3c/i\u3e

This article addresses how a federal court sitting in diversity jurisdiction should approach remedies issues, particularly where the law-equity divide lingers. Treatment of remedies raises tricky problems for federal judges regarding what law to apply. It matters because of separation-of-powers, federalism, jury trial implications, forum shopping, and fairness to litigants. Because, after all, the choice of federal versus state forum should not dictate the outcome. Further, notwithstanding calls to eliminate vestiges of equity’s unique characteristics and requirements, the gravitational pull of equity remains. There is value in continuing to honor equitable principles. And there is value in federal judges cultivating the contours of equity through development of equitable remedies doctrines, assuming federal judges do so within the substantive bounds of the underlying state law. This delicate balance may well prove difficult to achieve in all instances, but the goal remains worthy. Another rationale supporting this view is greater alignment with federal courts’ treatment of equitable remedies doctrines for cases arising under federal law. Ultimately, the remedy should honor the underlying substantive state law claim. The remedy should be tied to the right, though a federal court may provide an equitable remedy where a state might not. What if the movant seeks an equitable remedy in federal court that requires discretion and gap-filling? Historical justifications exist for federal court grants a broader, more powerful equitable remedies than states might. This article examines federal court practices in other hybrid scenarios in which gap-filling occurred. For example, Supreme Court cases of original jurisdiction when the case implicates state law. Must the federal judge rely solely on state doctrines, federal standards, or both? This article offers insights into federal court jurisprudence, practices, and ideal paths when crafting equitable versus legal remedies. I propose a novel path for federal courts to maintain historical powers of equity to help shape remedies law but should do so with respect towards state law substantive principles though the federal remedy may be outcome determinative