Notre Dame Law Professor Paul B. Miller's Scholarship Cited by Justice Clarence Thomas in Supreme Court Concurring Opinion

Notre Dame Law Professor Paul B. Miller's scholarship was cited by Justice Clarence Thomas in his concurring opinion in Sripetch v. Securities and Exchange Commission, issued on June 4.

The case examined whether the Securities and Exchange Commission (SEC) may obtain disgorgement—a remedy requiring wrongdoers to surrender profits gained through unlawful conduct—without proving that investors suffered financial losses. The Supreme Court held that the SEC is not required to show pecuniary harm to investors before seeking disgorgement. In a concurring opinion, Justice Thomas agreed with the Court's decision but argued that disgorgement should be understood as a legal, rather than equitable, remedy under the relevant statute. In support of his analysis, Justice Thomas cited “Getting Into Equity,” a paper co-authored by Miller and Professor Samuel Bray of the University of Chicago Law School that examines the nature of equity and how litigants plead for equitable relief given that it is exceptional in nature relative to legal redress.

In “Getting Into Equity,” Miller and Bray argue that equity is organized around petitions for relief rather than causes of action. Justice Thomas cited the paper in his discussion of the distinction between legal and equitable remedies.

Miller is the Robert and Marion Short Professor of Law and Associate Dean for International & Graduate Programs at Notre Dame Law School, where he also serves as director of the Notre Dame Program on Private Law. He is a private law theorist whose work focuses on general jurisprudence as well as philosophical questions in equity, fiduciary law, trust law, agency, and corporate law.