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Recent analyses of proprietary remedies have overwhelmingly focused on the constructive trust. This article investigates a less prominent proprietary remedy: the equitable lien. Though the lien is not as intrusive a remedy as the trust, because it insulates a creditor from the consequences of his/her debtor's insolvency, it raises many of the same questions. If a lien is to be justified, there must be some compelling reason for preferring the claims of some general creditors at the expense of others. This article argues that it is very difficult to demonstrate why some creditors are more deserving than others. Excepting a small number of anomalous instances in which the lien can be justified on instrumental grounds, the effect of the equitable lien is to discriminate between creditors whose claims are, in all material respects, indistinguishable.

Important recent scholarship has come to question the origins and legitimacy of the Ex parte Young proceeding, a cornerstone of modern constitutional litigation. Deploying a historically inflected methodology that we call equitable originalism, scholars and jurists have sought to confine federal equity power to the forms of equitable intervention common in the English High Court of Chancery at the time judicial power was first conferred on the lower federal courts in 1789. Such limits have led some to question the power of federal courts to grant affirmative Ex parte Young relief and to issue national or universal injunctions. This Article explores the Ex parte Young action and the power of federal courts to issue affirmative constitutional remedies in its name. It shows that equity’s traditional reluctance to intervene in public law matters reflected the perceived adequacy of the common law writs—mandamus, certiorari, and prohibition—as tools for oversight of the administrative state. Over time, equity adapted. Ex parte Young confirms a nineteenth-century transition in which the injunction absorbed the lessons of the common law writs and evolved into the primary mode of judicial control of administrative action. Equitable originalism could reverse such adaptation, returning equity to its private law eighteenth-century form and undermining modern constitutional remediation.

On April 22, 2021, the Supreme Court unanimously ruled that the Federal Trade Commission cannot continue to seek monetary relief from wrongdoers through § 13(b) of the Federal Trade Commission (FTC) Act—the authority predominantly relied on to challenge lawbreaking in federal court. This news followed a string of mounting criticisms in recent years that have undermined public confidence in the Agency. A decade ago, after the FTC largely stood idle against abuses by subprime lenders, Congress stripped the Agency of key authorities over the financial sector. Today, concerns about the adequacy of the FTC's antitrust enforcement and about its effectiveness as a privacy and data protection watchdog are once again raising questions about whether the FTC can protect the public from digital abuses. Today's crisis of confidence can be traced back to the 1980s. During that decade, Chairman James C. Miller III and his lieutenants took control of the Commission, and professed faith in the idea that markets could be trusted to regulate themselves. They supported crippling cuts to the Agency's budget and headcount, while shifting the Commission's focus away from combating corporate abuse. They also shelved the Commission's strongest tools to deter lawbreaking, turning instead to § 13(b), the authority now limited by the Supreme Court. While § 13(b) was an important tool, it did not allow the Commission to actually seek penalties against wrongdoing, and it is best suited to one-off enforcement rather than ensuring compliance market-wide. This has meant that for large firms and other established corporate actors, breaking the law can be a good bet. In this Article, we detail why the Agency should resurrect one of the key authorities abandoned in the 1980s: § 5(m)(1)(B) of the FTC Act, the Penalty Offense Authority. The Penalty Offense Authority is a unique tool in commercial regulation. Typically, first-time offenses involving unfair or deceptive practices do not lead to civil penalties. However, if the Commission formally condemns these practices in a cease-and-desist order, they can become what we call \"Penalty Offenses.\" Other parties that commit these offenses with knowledge that they have been condemned by the Commission face financial penalties that can add up to a multiple of their illegal profits, rather than a fraction. Using this authority, the Commission can substantially increase deterrence and reduce litigation risk by noticing whole industries of Penalty Offenses, exposing violators to significant civil penalties, while helping to ensure fairness for honest firms. This would dramatically improve the FTC's effectiveness relative to relying exclusively on equitable monetary relief and no-money cease and desist orders. We demonstrate in this Article that in a number of key areas, including urgent concerns like online disinformation, the Commission can deploy the Penalty Offense Authority immediately. This can increase deterrence, since firms will pay a significant price for engaging in unfair or deceptive practices previously condemned by the Commission. We also outline how the Commission can deploy this authority to combat emerging harms, including illegal targeted marketing and deceptive data harvesting. We close with a call for a broader rethinking of the Commission's approach to combatting corporate misconduct. By inventorying its existing tools and deploying them strategically, the Commission can begin to turn the page on its checkered record and regain the public's confidence.

When victims of systemic rights violations in state criminal proceedings seek federal court relief, governmental defendants often ask federal courts to abstain for reasons of federalism. These arguments frequently disregard the Supreme Court’s emphasis that abstention is a narrow exception to federal courts’ duty to exercise jurisdiction. Lower federal courts are increasingly employing a form of “free-floating federalism,” diverging from the Supreme Court’s careful balance between comity and individual rights. This has led to lower courts’ significant expansion of criminal abstention doctrine, leaving severe irreparable harm unaddressed in an increasingly broad range of settings, such as pretrial detention and child welfare proceedings. Given the federal judiciary’s increased emphasis on tradition in interpreting contemporary equitable remedies, this Article contrasts these novel expansions with historical equitable practices. While the doctrine of criminal abstention is now known as “Younger abstention” after the 1971 case Younger v. Harris, criminal abstention and its core exceptions originate from centuries-old equitable proceedings in both the United States and England. Historically, courts of equity intervened in ongoing criminal proceedings when those proceedings were inadequate to redress harm or irreparable harm would otherwise result. Similarly, in the decades after the Fourteenth Amendment, federal courts balanced federal constitutional rights against state interests in ways that accounted for a federal judicial role in ending great irreparable harm. The most recent lower court expansions of the doctrine are in severe tension with that tradition.

This Article examines a critical but largely unexplored issue in contract law: whether secondary defaults--that is, relatively minor or technical defaults not involving debt repayment--should justify enforcing severe contractual remedies. In the context of lending, this issue concerns whether those types of defaults should justify terminating financing commitments, accelerating the maturity of outstanding debt, and foreclosing on collateral, any of which can cause a firm's failure. Although this issue arises constantly and its resolution can be critical to a firm's survival, judges and lawyers lack clear answers. This Article analyzes and seeks to provide answers both under existing law and from a normative standpoint. It also investigates meaningful alternative secondary-default remedies--some that could be instituted by courts, others recommended to parties in contract design--that would not impose undue hardships on borrowers and third parties, including the public.

Author's Synopsis: In the law of charitable trusts, courts wield exceptional power with respect to two equitable remedies: cy pres and the closely related doctrine of deviation. Courts can grant these equitable remedies for trusts that have purposes or terms rendered ineffectual, and either doctrine allows the court to prolong the trust's life, perhaps forever. Historically, the invocation of these remedies was anathema to American courts. But increasingly, they have contemplated the possibility of extending the life of charitable trusts through application of these doctrines. In many ways, the evolution of these doctrines is owing to the jurisprudence involving trusts created for the benefit of a religious congregation or charity. Yet, this connection and the implications of judicial decisions regarding the right to these remedies has not garnered much attention until now.

Abstract How do we reconcile the all-embracing remedy of the account of profits with the willingness to grant an equitable allowance to an errant fiduciary? Once again, the Court of Appeal in Recovery Partners GP Ltd v Rukhadze was confronted with the challenge of squaring this circle, ostensibly confining the equitable allowance to exceptional circumstances. However, a close analysis of Recovery Partners suggests that the Court is simultaneously emphasising the deterrent effect of the account of profits, whilst developing principles which operate to substantively limit the amount which a principal/beneficiary can recover from a defaulting fiduciary/trustee.

Private merger enforcement is a thorny corner of antitrust law. In Part I I provide a brief overview of the relevant antitrust laws — in particular, the 'Clayton Act' and the Celler-Kefauver Amendments. In Part II I explore the standing requirements for private litigants under section 16 of the 'Clayton Act' in merger challenges. I then provide a summary of the Supreme Court’s opinion in 'California v American Stores Co', in which the Court confirmed that states and other private plaintiffs can seek divestiture and the full range of equitable remedies under section 16 of the 'Clayton Act'. Lastly, I undergo a substantive analysis of the 2021 Fourth Circuit 'JELD-WEN' case. In Part III I explore the implications of granting equitable remedies under section 16 to private litigants in merger challenges. I acknowledge that private merger enforcement is part of the overall antitrust enforcement schema designed by Congress, and that the importance of private plaintiffs in the overall system has been echoed by the Supreme Court. I then detail counterbalancing concerns unique to private merger enforcement under section 16 of the 'Clayton Act'. Ultimately, I argue that despite the 'JELD-WEN' ruling, courts should continue to review these suits with a critical eye. When evaluating private merger challenges, courts ought to consistently apply the antitrust injury doctrine, give preference to consumer plaintiffs over competitor plaintiffs, and be wary of unrecoverable waste resulting from divestiture in post-merger consummation challenges.

Courts have widely adopted a heightened standard for recognizing third-party beneficiaries of government contracts. But the justifications offered for the heightened standard do not withstand scrutiny. Instead, courts should apply a series of equitable factors to produce results consistent with the concern for “manifest justice” that animates third-party beneficiary doctrine. Governments make contracts frequently, often to address issues of huge importance to their citizens, including housing, economic development, and healthcare. In each of these areas, third-party beneficiary doctrine may be an important avenue of relief to citizens harmed by broken promises and may encourage the government and its contracting partners to more seriously include citizens in their decisionmaking. This Note proposes reforms to third-party beneficiary doctrine necessary for that to happen and applies those reforms to a pair of government contracts made in Detroit.