72 Am. U. L. Rev. 1 (2022).

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Abstract

This Article was inspired by two recent Supreme Court decisions dealing with the ability of the Securities and Exchange Commission to seek disgorgement of unlawfully obtained profits. The topic, however, is not disgorgement. That is a different article, published by the author in the Cornell Law Review in 2020, on which this one builds. This Article focuses instead on jurisprudential methodology. The Court has begun to exhibit an unfortunate penchant for jurisprudence by soundbite—the functional equivalent of Googling its own precedents for pithy quotes taken out of context from inapt cases. The results are, to put it politely, mischievous.

This Article makes its point by unpacking a proposition the Court has articulated flatly and succinctly. That proposition is that deterrence (evidently all deterrence) is a form of punishment. After providing necessary background, the Article examines the definition of “punishment” and its variants. Both commonsense arguments and the work of legal philosophers are considered before critiquing the Court’s most recent forays into the area.

As it turns out, using the “soundbite approach” (rather than legal reasoning) to decide a case leads a court—or at least one of them—to treat precedents as mix-and-match and renders both common sense and context irrelevant. This is demonstrated when the Article introduces soundbites that the Court could have used but did not—soundbites that would have pointed to a conclusion diametrically opposed to the one suggested by the soundbites the Court actually chose. The Article then mines the precedents generating the quotes relied upon by the Court and rejects them in favor of a more structured examination of the different possible contexts invoking the concept of punishment.

* Lyle T. Alverson Professor of Law, The George Washington University School of Law. J.D. Harvard University; B.S. University of Arizona. The author acknowledges with gratitude the inspiration and insights of Robert L. Palmer and William T. Palmer, as well as the research assistance of Douglas (Jason) Kelly and Nicholas Moayad. Portions of the background of this Article rely on the author’s earlier work, more specifically cited below.