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Liu and the New SEC Disgorgement Statute
No full textIn early 2021, Congress enacted a new statute for enforcement cases brought by the Securities and Exchange Commission. The new statute resolved important questions about the availability of disgorgement as a remedy in SEC enforcement cases, but it created other questions. The purpose of this Article is to discuss one interpretive issue that is already arising in the federal courts of appeals.
That interpretive issue is whether “disgorgement” as authorized by the new statute must abide by equitable limitations the Supreme Court imposed on disgorgement relief in SEC cases in Liu v. SEC, 140 S. Ct. 1936 (2020). The statute was passed about six months after the Liu decision, which had found that disgorgement in an SEC enforcement case is an equitable remedy when it complies with three longstanding principles of equity: a defendant\u27s gains should be returned to wronged investors for their benefit; the disgorgement order should not extend to several wrongdoers under a joint-and-several liability theory; and disgorgement should not exceed the net profits from wrongdoing after deducting legitimate expenses. Does the new statute incorporate the Liu decision and equitable principles?
Answering that question is not straightforward. A careful review of the text, context, and legislative history of the new statute does not provide a persuasive basis to conclude that the new statute is meant to adopt equitable principles and define disgorgement the way Liu did. Neither the text of the statute nor materials from Congress commented with approval or disapproval of Liu. Canons of statutory interpretation are largely not helpful either.
A better approach to understanding the new statute is to think separately about the different equitable principles found in Liu and to analyze the statute to reach an appropriate interpretation of each one. The statutory text defining disgorgement as unjust enrichment the defendant “received” supports the application of a strict form of the Liu limitation preventing one defendant from being ordered to disgorge profits a different person received. A part of a 2010 securities enactment provides a solid ground for rejecting the Liu limitation requiring the return of disgorgement amounts to injured investors. Finally, a canon of construction provides a basis for applying the Liu principle limiting an award to net profits from wrongdoing after deducting legitimate expenses
Charging Abortion
No full textAs long as Roe v. Wade remained good law, prosecutors could largely avoid the question of abortion. The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization has now placed prosecutors at the forefront of the abortion wars. Some chief prosecutors in antiabortion states have pledged to not enforce antiabortion laws, whereas others are targeting even out-of-state providers. This post-Dobbs reality, wherein the ability to obtain an abortion depends not only on the politics of one’s state but also the policies of one’s local district attorney, has received minimal scrutiny from legal scholars.
Prosecutors have broad charging discretion, but prevailing ethical rules and standards do not allow them to disregard laws that they regard as unjust. Nevertheless, since prosecutors do not have unlimited resources, and abortion cases are complex and sensitive, they should use their discretion to focus only on cases in which abortion care endangers women and in instances of coercion, as they did pre-Roe. Extraterritorial applications of antiabortion law are constitutionally suspect and are unlikely to further the public interest. Abortion is one of the most contentious issues in American life. In a morally pluralistic society, prosecutors must strive for neutrality in the abortion wars by relying on professional standards to guide their charging discretion rather than following public opinion and the dictates of individual conscience
RESTORING BALANCE TO QUALIFIED IMMUNITY: MODIFIED MANDATORY SEQUENCING
No full textQualified immunity continues to confound and frustrate judges, lawyers, law professors, law students, and even those outside the legal industry. Much of this frustration results from outcomes that shock the conscience, such as when government officials are granted qualified immunity despite stealing money while executing a search warrant or when government officials lock a prisoner in a highly unsanitary cell for a week.
Legal scholars have examined two main areas within the qualified immunity doctrine: the common law origins and the clearly established prong of qualified immunity analysis. The common law origins of qualified immunity have been thoroughly examined, and until recently, it was thought there was no common law basis for qualified immunity. What was once a one-sided criticism has become a debate. Further, the clearly established test has finally been addressed by the Supreme Court in a recent per curium opinion.
However, another issue within qualified immunity deserves attention. Specifically, how the current standard from Pearson v. Callahan disserves present and future plaintiffs in § 1983 suits. Pearson allows courts to pass on a constitutional inquiry into whether a constitutional right was violated if the case could be resolved on another ground. In not determining whether a constitutional right exists, future plaintiffs will be unable to defeat qualified immunity because a court chose not to determine whether a constitutional right exists.
This article critically analyzes mandatory sequencing in qualified immunity and the reasons behind the Saucier v. Katz and Pearson decisions. Assuming that there is a common law foundation to qualified immunity and considering the lightening of the clearly established standard, I offer a solution to the future plaintiff problem of Pearson. A modified, mandatory sequencing that attempts to find a better balance between the goals of qualified immunity: a damages remedy to protect the rights of citizens against the need to protect officials in their discretionary acts
War & IP
No full textOn February 24, 2022, war broke out between Russia and Ukraine, sparking concerns among government leaders, intergovernmental bodies and the public at large. A month later, the Russian government issued Decree 299, which reduced to zero the royalty rate for national security-based compulsory licenses to intellectual property rights held by individuals or entities originating from the United States or other unfriendly nations. Meanwhile, the United States and other members of the international community imposed sanctions on Russia, raising questions about whether those sanctions would prevent U.S. companies and individuals from engaging with Russian intellectual property agencies. Many multinational corporations also withdrew from the Russian market.The Russo-Ukrainian War has raised important questions that have been virtually unexplored in intellectual property literature. To fill this gap, the present article examines wartime and postwar protection of intellectual property rights. It begins by showing that armed conflicts are not new to the international intellectual property regime and that this regime already contains robust structural features and carefully drafted safeguards, limitations and flexibilities to protect intellectual property rights holders during wartime. This article then explores the international intellectual property obligations of countries that are parties to an armed conflict as well as those that are not directly involved but have imposed sanctions on belligerent states. To cover developments in areas relating to international trade, investment and intellectual property laws, this analysis focuses on the WTO TRIPS Agreement, bilateral investment agreements and regional or plurilateral trade agreements that include intellectual property and investment chapters.This article further outlines the different proactive measures that policymakers can introduce to help protect intellectual property rights holders during and in relation to an armed conflict. The discussion specifically explores the development of domestic measures, international mechanisms and academic and policy research. The article concludes by probing the deeper theoretical questions generated by wartime and postwar experiences in relation to innovation theory, intellectual property law and international law
We\u27re Gonna Need a Bigger Boat: The Importance of Increased Shark Conservation Across Countries, States, and the High Seas
No full textSharks serve invaluable roles as apex predators in the world\u27s ocean ecosystems. However, the rise of the shark fin trade and incidental bycatch have drastically eliminated shark populations so that several species are close to extinction. Without substantial upgrades to existing international frameworks including CITES, CMS, and IPOA-Sharks, and regulatory bodies such as RFMOs, shark populations may pass beyond recovery. However, strengthening those regulations, along with expanding the U.S.\u27s role as a leader in shark conservation carries significant potential in protecting shark populations. Lastly, governments and conservation entities must substantially increase research and public awareness regarding the issue to ensure that there is the data and political will to serve as the foundation for the new age of shark conservation
The Return of Three-Judge Constitutional Courts
No full textState courts wield the authority to elevate state constitutional protections above those afforded by the U.S. Constitution. That power is great—so great that some legislatures have intervened in constitutional adjudication, purportedly to undermine forum shopping and check a single judge’s influence. Accordingly, North Carolina and Tennessee require that three-judge trial courts hear constitutional challenges to state laws. These courts echo twentieth-century congressional efforts to trim federal courts’ equitable jurisdiction. They also present new and familiar drawbacks spawned by their federal ancestors.
This Note examines these new constitutional courts through several lenses: their historical context, political development, advantages, and drawbacks. Although both current forms of the three-judge state constitutional court are flawed, this Note argues that safeguarding state constitutional adjudication is a worthy endeavor. Indeed, several reforms to current three-judge courts—including random selection and efficiency measures—could maximize these courts’ advantages and mitigate their shortcomings. But, overall, these courts present a legitimate opportunity to balance the interests of legislatures and litigants in constitutional adjudication
The Illusion of Defendant Autonomy and the Moral Harm of Self-Incrimination in McCoy v. Louisiana
No full textIN EVENT OF AN (AI) EMERGENCY: INTERPRETING CONTINUITY OF GOVERNMENT PROVISIONS IN STATE CONSTITUTIONS
No full text“Of this I am certain: If we prepare ourselves so that a terrible attack—although it might hurt us—could not destroy us, then such an attack will never come.” - Edward Teller, the “Father of the Hydrogen Bomb,” in an interview with Allen Brown of This Week Magazine in 1957.
Bad actors have already used or may soon use AI to disrupt critical infrastructure, influence elections, and upend economies. Those most concerned about the risks posed by AI argue that it is a matter of when and not if state governments will have to respond to threatened or realized acts of AI aggression. Though a litany of scholars have examined the powers governors may use in emergency situations, less attention has been paid to the role of state legislatures in responding to destabilizing events.
Scholars have justified their focus on governors for practical reasons—the executive branch of state governments has been deemed the “the center of governmental response[s]” to public emergencies. Two trends caution against perpetuating neglect of state legislatures. First, the legal and social bases for governors to take sweeping action in response to emergencies eroded in many states during COVID-19. In turn, many state legislatures, by law, by popular support, or both, have amassed more authority to respond in worst-case scenarios. Second, the likelihood of states being thrown into disarray will only increase as AI evolves and spreads; thus, warranting a closer analysis of what powers state legislatures may exercise to restore normalcy.
Thirty-five state constitutions contain variants of a template “Continuity of Government” (CoG) provision promulgated by the federal government at the height of the Cold War. What events may trigger these provisions, as well as what powers they afford to state legislatures, has evaded judicial scrutiny as a result of state legislatures rarely invoking the relevant provision. It follows that the scholarly analysis of how best to interpret these important provisions should occur in the relative tranquility of the present rather than at the height of a calamity. This preemptive analysis may improve the ability of state legislatures to respond to disorder by clarifying the likely scope and duration of their powers and, ideally, by spurring amendments to clarify the provisions in advance of any such event.
This paper serves as one (and, likely, the first) entry in an inquiry that merits immediate and robust scholarly attention. Relying on the framework set forth by the New Haven School of Jurisprudence, this paper resolves one of the most consequential ambiguities contained in CoG provisions. This framework deserves special consideration given its inclusion of myriad disciplines and its characterization as an “explicitly policy-oriented jurisprudence.”
Scholars from across the legal profession have a role in contributing to this inquiry. The incorporation of AI into legal practice imposes a responsibility on scholars to anticipate how the technology may require new doctrines, laws, and methods of interpretation. Though this paper focuses on the continuation of state governments in the wake of an AI emergency, related inquiries such as how to rethink contract law, property law, and the like upon such an emergency demand more scholarly attention. The exploration of those topics can, in turn, inform what sorts of powers state legislatures may need to exercise and for how long
DEI Newsletter 2024 Issue 2
No full textUpcoming Events Summer Celebrations In the Spotlight: RHRC in Mexico 2.0 BLSA Highlights from Black History Month Women’s History at Maine Law Events Around Town Living Room Libraryhttps://digitalcommons.mainelaw.maine.edu/dei-newsletter/1003/thumbnail.jp