This Note explores the relationship between equitable remedies and agency enforcement powers, arguing that federal courts are increasingly distinguishing between law and equity in remedies to impose limits on agency enforcement powers. Part I tracks factors driving the FTC’s broad reading of section 13(b) until AMG Capital. Part II analyzes developments in the SEC with a focus on Liu and suggest that federal courts are returning to traditional categories of equitable remedies. Part III concludes with two trends in determining the scope of agency enforcement powers. First, federal courts are requiring agencies to show that their use of equitable remedies conforms with traditional principles of equity. And second, the reading of statutes in light of traditional equitable principles restrains agency overreach while preserving the administrative state, reflecting a “neoclassical” approach to administrative law.
Updating the Federal Agency Enforcement Playbook,
Notre Dame L. Rev.
Available at: https://scholarship.law.nd.edu/ndlr/vol96/iss5/12