Digital Commons Network^™

Remedies Symposium: The Brand V. The Man: Considering A Constructive Trust As A Remedy For President Trump's Alleged Violations Of The Foreign Emoluments Clause, Kimberly Breedon, A. Christopher Bryant

ConLawNOW

When the Framers of our national Constitution included the Foreign Emoluments Clause, they did so as a prophylactic against government corruption, but they provided no specified remedy for violations the clause. In this brief essay, we evaluate the viability of an equitable remedy borrowed from the private law of trusts—specifically, the constructive trust—as a potential retrospective remedy for such violations by a President. We first provide context by reviewing the legal claims and requests for relief in three lawsuits currently pending against Donald J. Trump alleging multiple and ongoing Emoluments Clause violations. We then turn to the doctrines governing the …

Remedies Symposium: Article Iii, Remedies, And Representation, Andrew Coan, David Marcus

ConLawNOW

As articulated by the United States Supreme Court, the principal purpose of Article III standing is to force decisions affecting large numbers of people into the democratic process where all affected parties are represented. The logical implication of this “representation-centered theory” for the proper scope of injunctive relief is straightforward. That relief must not exceed what is reasonably necessary to remedy the particularized injury that sets the plaintiff or plaintiffs apart from the general population. The Supreme Court has repeatedly reaffirmed this logic. Yet courts and commentators, including the Court itself, routinely ignore it. The most prominent recent examples are …

Remedies Symposium: Reexamining Bivens After Ziglar V. Abbasi, Bernard W. Bell

ConLawNOW

In Ziglar v. Abbasi, the U.S. Supreme Court revisited Bivens doctrine, suggesting that courts recognize constitutional tort actions only in cases closely analogous to one of the cases comprising the 1970s/1980s era Bivens trilogy, namely Bivens v. Six Unknown Named Agents, Davis v. Passman, and Carlson v. Green. In doing so the Court set forth several factors that might make a case distinguishable from those 1970s/1980s cases. This essay argues that the key to Ziglar v. Abbasi is not the analogical exercise the Court imposed, but the Court’s concern that Bivens actions could become a mechanism for …

Remedies Symposium: Remedies And The Government's Constitutionally Harmful Speech, Helen Norton

ConLawNOW

Although governments have engaged in expression from their inception, only recently have we begun to consider the ways in which the government’s speech sometimes threatens our constitutional rights. In my contribution to this symposium, I seek to show that although the search for constitutional remedies for the government’s harmful expression is challenging, it is far from futile. This search is also increasingly important at a time when the government’s expressive powers continue to grow—along with its willingness to use these powers for disturbing purposes and with troubling consequences.

More specifically, in certain circumstances, injunctive relief, declaratory relief, or damages can …

Remedies Symposium: Remedial Discretion In Constitutional Adjudication: A Codicil, John M. Greabe

ConLawNOW

This symposium paper elaborates on two questions raised by the author’s prior work, Remedial Discretion in Constitutional Adjudication. That paper disagreed with calls for a revival of non-retroactive judicial rulings to facilitate more constitutional innovation and argued that the Supreme Court’s practice of developing doctrines that withhold remedies for constitutional violations—e.g., qualified immunity, exceptions to the exclusionary rule, and harmless-error rules— is both sufficient to facilitate constitutional innovation and preferable to reviving non-retroactivity. Of necessity, the paper also developed a theory of when courts may withhold remedies for constitutional violations and when they may not: courts may withhold remedies responsive …