Disgorging Emoluments

Abstract

This Article is about unjust enrichment. It includes a theory of an unjust

enrichment cause of action against executive actors who receive unlawful

emoluments. Interpretations of the boundaries of unlawful emoluments range

from receipt of a gift or benefit because of the position of power held to quid

pro quo exchanges of a thing of value in exchange for government information

or advantage. Wherever the proper line, the purpose of the law of unjust

enrichment is to prevent and undo benefits one has no right to retain. It

achieves those goals with the use of restitution remedies including

disgorgement of unjust profits.

Unjust enrichment is particularly suited to remedy wrongful emoluments

because the goal is to undo improper gain rather than compensate for any

plaintiff losses. Unjust enrichment law and restitution-based remedies law are

experiencing a revival in the United States. This resurgence of interest in and

use of unjust enrichment theory has led to increased application of

restitutionary remedies. This Article proposes the restitutionary-based remedy

of disgorgement of emoluments that constitute unjust gains. This cause of

action and remedy already lie in American common law. Unjust enrichment

provides a freestanding basis for disgorgement relief as well as restitution

remedies to protect against fiduciary breaches and violations of other protected

interests. Article III standing and other jurisdictional obstacles may pose a

need for a cleaner, additional path. No existing statutes cover this field. Thus,

I propose a statutory solution that operationalizes restitutionary disgorgement

as the preferred remedy to undo unjust emoluments.

Caprice L. Roberts, Disgorging Emoluments, 103 Marq. L. Rev. 1 (2019).
Available at: https://scholarship.law.marquette.edu/mulr/vol103/iss1/3

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