Justice Thomas cites Professor Samuel Bray in securities case

Justice Clarence Thomas cited Notre Dame Law School Professor Samuel L. Bray four times in his dissent to the Supreme Court’s June 22 decision in Liu v. SEC, No. 18-1501.

Thomas’s opinion contended that the Securities and Exchange Commission should not be able to obtain “disgorgement” of profits from unlawful activity as an equitable remedy in securities actions brought in federal court. He reasoned that the governing statute authorizes federal courts only to order traditional equitable remedies, and that disgorgement is not such a remedy.

Three of Justice Thomas’s citations were to Bray’s “Fiduciary Remedies” chapter in The Oxford Handbook of Fiduciary Law (E. Criddle, P. Miller, & R. Sitkoff eds. 2019). One editor of that book is another Notre Dame Law School faculty member, Professor Paul B. Miller.

The other citation was to an amicus brief Bray filed in the case along with Professor Henry E. Smith of Harvard Law School.

More important than citations, the substance of both the majority and dissenting opinions was largely consistent with the brief filed by Professors Bray and Smith.