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31 posts from October 2021

10/31/2021

David Kopel on Corpus Linguistics in the Public Carry Case
Michael Ramsey

At Volokh Conspiracy, David Kopel: Corpus Linguistics and the Second Amendment. From the introduction:

Corpus linguistics is the scholarly technique of searching historic databases to gather information on the use of important words or phrases. In the pending U.S. Supreme Court on the Second Amendment to right to bear arms, New York State Rifle & Pistol Association v. Bruen, a pair of amicus brief purport to apply corpus linguistics to the Second Amendment. The briefs say that they prove that individuals have no right to bear arms, and that even if such a right exists, it is tiny. This post examines the claims in the briefs.

This post is co-authored by Campbell University law professor Gregory Wallace....

One of the amicus briefs is on behalf of three professors of linguistics—Dennis Baron (U. Illinois), Stefan Th. Gries (U. Cal. Santa Barbara), and Jason Merchant (U. Chicago)—and one law professor, Alison LaCroix (U. Chicago), who has written about corpus linguistics and founding era documents. It was filed by attorneys for Morrison & Foerster. The other brief is by and for Washington, D.C., attorney Neal Goldfarb. Goldfarb describes himself as "an attorney with an interest and expertise in linguistics, and in applying the insights and methodologies of linguistics to legal interpretation." His brief asks the Supreme Court to call for supplemental briefing on the corpus linguistics issues and to hold the Bruen case over to the next Term for argument on those issues. The arguments in both briefs are similar.

To be clear, we do not criticize corpus linguistics as a methodology. ... The persuasiveness of corpus linguistics claims depends on understanding words in context, considering all relevant sources, and classifying usages accurately. Some corpus linguists do so better than others.

Extensive analysis follow, leading to this conclusion:

Corpus linguistics can be a valuable tool for legal scholars. Future scholars intending to employ corpus linguistics can usefully study the New York State Rifle & Pistol Association amicus briefs as models of errors to avoid: ignoring usages that don't support an author's theory, failure to understand that a words can have multiple meanings at once, separating phrases from context that clearly shows their meaning, not considering the most precisely relevant context (here, the use of words in constitutions), and imposing twenty-first century usage (e.g., "war" is national defense but not personal defense) on earlier generations who used words differently from how modern Americans do.

RELATED:  At the National Constitution Center, a podcast debate Is There a Constitutional Right to Concealed Carry? featuring Professor Kopel and former judge J. Michael Luttig, with Jeffery Rosen moderating.  Professor Kopel comments here: Luttig versus Kopel on the right to bear arms.

ALSO RELATED, as noted earlierCorpus Linguistics and Heller by James Cleith Phillips (Chapman University, Dale E. Fowler School of Law) and Josh Blackman (South Texas College of Law Houston).

The New York Rifle & Pistol case is potentially one of the most important cases for originalist methodology since, well, Heller.  I remain uneasy, however, about the Court's ability to engage the question presented (whether the Second Amendment protects the right to carry concealed weapons in public) without also considering the question (not presented) whether the Second Amendment protects the right to carry non-concealed weapons in public.

10/30/2021

Samuel Bray & Paul Miller: Getting Into Equity
Michael Ramsey

Samuel L. Bray (Notre Dame Law School) and Paul B. Miller (Notre Dame Law School) have posted Getting Into Equity (Notre Dame Law Review, forthcoming) (41 pages) on SSRN.  Here is the abstract:

For two centuries, common lawyers have frequently talked about a “cause of action.” But “cause of action” is not an organizing principle for equity. This Article shows how a plaintiff gets into equity, and it shows equity is shaped by the interplay of its remedial, procedural, and substantive law. Equity is adjectival, related to law rather than the other way around. Remedies, not rights, are what give it power. And for getting into equity, it is the grievance that is central. To insist on an equitable cause of action is to work a fundamental change in how a plaintiff gets into equity.

At Volokh Conspiracy, Professor Bray notes that the paper has implications for United States v. Texas, which it discusses briefly.

10/29/2021

The Constitution and the Minimum Corporate Tax Agreement (Part 1)
Michael Ramsey

Earlier I posted (here and here) some general thoughts about the idea of a global minimum corporate tax.  Some objections have been raised to its constitutionality (see here from the Wall Street Journal editors).  Having taken a closer look at the agreement (such as it is) released by the participating countries earlier this month, I have some more specific thoughts.

The "agreement" in my view is at this point just a nonbinding statement of the general common parameters under which the participating countries are negotiating.  Its title is "Statement on a Two-Pillar Solution to Address the Tax Challenges Arising from the Digitalisation of the Economy."  It does not describe itself as an "agreement", "convention", or any other term commonly used in international law to indicate a binding instrument, nor does it make any reference to it being a binding commitment.  It is not signed on behalf of any participating government.  Throughout, it uses the word "will" (e.g., "There will be a new special purpose nexus rule ...") rather than "shall" or some similar word customarily used to indicate a binding agreement.  And it is light on details, making it evident that large amounts of the "agreement" will be filled in later.

All of this points to the "agreement" (as it is being called in the press, although the instrument itself is labelled only a "statement") being only a political commitment -- that is, a nonbinding expression of a common diplomatic interest or goal among the parties that is not understood as a legal undertaking in international law.  In that form, in my view it is entirely constitutional.  As argued in Evading the Treaty Power, a nonbinding political commitment does not infringe the treaty power because the essence of  treaty is its binding nature.  A nonbinding statement is, by definition, not a treaty:

The word “treaty” in the Constitution indicates a binding agreement under international law. Vattel, the leading international law writer of the eighteenth century, wrote: “He who violates his treaties, violates at the same time the law of nations; for, he disregards the faith of treaties,—that faith which the law of nations declares sacred.” Americans of the founding era were concerned that treaty violations would impugn the nation’s honor (an important consideration at the time) and more practically would give cause for war at a time when the United States was a weak nation militarily. In discussing the importance of treaties, members of the founding generation consistently referred to treaties’ binding nature. For constitutional purposes, therefore, an essential element of a treaty is that it is binding as a matter of international law.

Nonbinding agreements are necessarily not treaties, because (by definition) they lack the essential characteristic of bindingness and therefore lack the corresponding implications for preserving honor and not giving offense. A nonbinding agreement is in effect a statement of policy (or rather multiple parallel statements of policy) which the relevant parties understand can be changed unilaterally in any party’s discretion. Because a nonbinding agreement is not a treaty and does not implicate the concerns of a binding commitment, the treaty-making clause is not relevant to its constitutional status. Put precisely, the treaty-making clause does not preclude the President from making nonbinding agreements.

Of course, the President still needs a source of constitutional power to enter into political commitments with other countries.  In my view, that power is supplied by Article II, Section 1's vesting of executive power in the President.  As argued many times (but originally here, with Saikrishna Prakash), the original meaning of that clause is best read to include foreign affairs powers not allocated elsewhere by the Constitution -- especially diplomatic power.  (In this particular case, the authority might come from the President's power to negotiate treaties, a point to be discussed later.)

This conclusion is reinforced by the Statement's treatment of the two "pillars" of the "solution."  As described by the Journal in the editorial linked above,

The deal comes in two “pillars” in the argot. Pillar one introduces a new method for determining which governments get to tax the revenues of the world’s 100 or so largest companies. Pillar two is a global minimum corporate profits tax with a rate of 15%.

As to the first pillar, it is principally concerned with what it calls "Amount A" (basically, the allocation of taxing authority for multinationals).  And it states directly that "Amount A will be implemented through a Multilateral Convention (MLC), and where necessary by way of correlative changes to domestic law, with a view to allowing it to come into effect in 2023."    Further:

In order to facilitate swift and consistent implementation, an MLC will be developed to introduce a multilateral framework for all jurisdictions that join ... Following its signature, jurisdictions will be expected to ratify the MLC as soon as possible, with the objective of enabling it to enter into force and effect in 2023 once a critical mass of jurisdictions as defined by the MLC have ratified it.

Thus, pillar one contemplates that its terms will be incorporated into a binding international agreement which the participating countries will then sign and ratify (or not).  It is, then, in the nature of a term sheet or memorandum of understanding in commercial law.  Reinforcing the point made above, participation in such an enterprise seems well within the President's diplomatic power -- the key, for constitutional purposes, is how the MLC is adopted.

Pillar two, in contrast, appears not to contemplate a binding agreement at all.  This is the part containing the minimum tax, which the Statement calls "the Global anti-Base Erosion Rules (GLoBe)."  [Ed.: wow, that is quite a strained fake acronym.] The Statement goes on to say that:

The GLoBE rules will have the status of a common approach.  This means that [participating countries] ... are not required to adopt the GLoBE rules, but, if they choose to do so, they will implement and administer the rules in a way that is consistent with the outcomes provided for under Pillar Two...

And further:

Model rules to give effect to the GLoBE rules will be developed by the end of November 2021.  These model rules will define the scope and set out the mechanics of the GLoBE rules.

Though not as clear as it might be, that sounds like implementation through a proposed model law that will be adopted (or not) by each of the participating countries at its discretion (like the proposed uniform laws, such as the Uniform Commercial Code, in U.S. domestic law).  Again, that seems to be an enterprise well within the President's diplomatic power, with the key being the treatment of the model rules once they are announced.

In sum, I don't see any constitutional problems so far.  It all seems in the nature of a diplomatic project either to produce a future international agreement or to produce guidelines for parallel domestic law approaches.  The question for constitutional purposes is how all this is implemented.  I will turn to that in the next post.

10/28/2021

Aaron Nielson & Christopher Walker: Congress's Anti-Removal Power
Michael Ramsey

Aaron L. Nielson (Brigham Young University - J. Reuben Clark Law School) and Christopher J. Walker (Ohio State University - Michael E. Moritz College of Law) have posted Congress's Anti-Removal Power (71 pages) on SSRN.  Here is the abstract:

Statutory restrictions on presidential removal of agency leadership enable agencies to act independently from the White House. Yet since 2020, the U.S. Supreme Court has held two times that such restrictions are unconstitutional precisely because they prevent the president from controlling policymaking within the executive branch. Recognizing that a supermajority of the justices now appear to reject the principle from Humphrey’s Executor that Congress may prevent the president from removing agency officials based on policy disagreement, scholars increasingly predict that the Court will soon jettison agency independence altogether.

This Article challenges that conventional wisdom. True, the Court is skeptical of statutory restrictions on the president’s removal power. But statutory removal restrictions are not the only tool to achieve agency independence. Instead, the Constitution provides Congress with what we dub the anti-removal power—i.e., the power to discourage the White House from using its removal power. For example, because the Senate has plenary authority under the Appointments Clause to withhold its consent for executive branch nominees there is no guarantee that the Senate will confirm a replacement if the president removes the incumbent for a poor reason. As Alexander Hamilton explained, the “silent operation” of that uncertainty often allows Congress to prevent removal in the first place. Similarly, James Madison acknowledged during the Decision of 1789 that although the Constitution (in his view) forbids statutory removal restrictions, Congress has means to make removal costly for the president, which prospect should “excite serious reflections beforehand in the mind of any man who may fill the presidential chair.”

Importantly, moreover, Congress can strengthen its anti-removal power by, among other things, enacting reason-giving requirements, raising cloture thresholds, and preventing presidential evasion of the Appointments Clause. Using history, real-world examples, and game theory, we demonstrate how Congress can create a level of agency independence without the use of statutory removal restrictions. We also explain why Congress’s anti-removal power has advantages over statutory removal restrictions, including a surer constitutional footing and enhanced accountability: both the president and Congress face political consequences for how they exercise their removal and anti-removal powers. Finally, we offer Congress a path forward to restore some agency independence, strengthen perceived decisional independence in agency adjudication, and limit judicial challenges to agency structures.

10/27/2021

James Cleith Phillips & Josh Blackman: Corpus Linguistics and Heller
Michael Ramsey

James Cleith Phillips (Chapman University, Dale E. Fowler School of Law) and Josh Blackman (South Texas College of Law Houston) have posted Corpus Linguistics and Heller (Wake Forest Law Review, Vol. 56, No. 609, 2021) (77 pages) on SSRN.  Here is the abstract:

In District of Columbia v. Heller, the Supreme Court sharply divided over the meaning of the twenty-seven words in the Second Amendment. Justice Scalia wrote the majority opinion. He concluded that the Second Amendment “protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.” In short, an “individual” right. Justice Stevens, in his dissent, contended that the Second Amendment “is most naturally read to secure to the people a right to use and possess arms in conjunction with service in a well-regulated militia.” That is, a “collective” right.

Justice Scalia and Justice Stevens both made linguistic claims about four elements of the Second Amendment: “right of the people,” “keep and bear arms,” “keep arms,” and “bear arms.” Both the majority and the dissent used various textualist approaches to consider these four phrases, but their toolkit in 2008 was limited. They considered only a fairly narrow range of sources to interpret the text. Today, we can do better. In this Article, we will grade the four linguistic claims made in the Heller case using corpus linguistics.

We rely on the Corpus of Founding Era American English (“COFEA”). In 2015, one of us conceptualized and oversaw the initial development of COFEA. We performed five queries with COFEA. First, we queried right of the people. Second, we queried keep and bear arms (and synonyms). Third, we queried the word right within six words of arms. Fourth, we queried the word keep, and variants of keep, within six words of arms. Fifth, we queried the word bear, and variants of bear, within six words of arms. We used multiple coders who independently coded their results using a type of double-blind methodology.

Both the majority and the dissenting opinions erred with respect to some of their linguistic claims. Justices Scalia and Stevens should have expressed far more caution when reaching their textualist conclusions based on the narrow subset of founding-era sources they reviewed. Additionally, corpus linguistic theory reveals that there are inconsistencies in both Justice Scalia’s and Stevens’s descriptions of the Second Amendment’s original public meaning.

The authors presented an earlier version of the article at the 2019 Originalism Works-in-Progress conference in San Diego.

10/26/2021

Glenn Reynolds on Peter Canellos on John Marshall Harlan
Michael Ramsey

At Law and Liberty, Glenn Reynolds (Tennessee/Instapundit) reviews Peter Canellos' The Great Dissenter: The Story of John Marshall Harlan, America’s Judicial Hero (Simon & Schuster 2021): Remembering the Great Dissenter.  From the introduction: 

... As Canellos’ biography illustrates, Harlan (the first justice by that name, not to be confused with his grandson John Marshall Harlan, who also served on the Court) was both a very interesting man and a great justice with a connection between the two. Compared to his colleagues, Canellos writes, Harlan was different: He saw things they did not, and he acted on impulses they didn’t share. He was different because his life was different. “Among jurists, he alone expressed the view that when rights are denied to one group, it endangers the protections of all. He alone believed that sowing ‘the seeds of race hate’ in the law would cripple the nation for generations to come.”

And from later on:

Harlan’s dissent in the Civil Rights Cases was actually written with the pen used by Chief Justice Taney to write the infamous Dred Scott opinion and called out his colleagues for abandoning the spirit and letter of the Fourteenth Amendment. “The supreme law of the land,” he wrote, “has decreed that no authority shall be exercised upon the basis of discrimination, in respect of civil rights, against freemen and citizens because of their race, color, or previous condition of servitude.” 

Still more famous, of course, is his dissent in the 1896 “separate but equal” case of Plessy v. Ferguson. Homer Plessy, a man of part-African descent, sat in the “Whites Only” car created by a new Louisiana statute mandating segregated rail facilities. After being removed pursuant to the law, he sued, charging among other things a violation of his Equal Protection rights under the Fourteenth Amendment. The majority famously found no violation of equal protection so long as the facilities, separated by race, were (allegedly) equal.

Harlan’s blistering dissent in  Plessy was widely read in the pulpits of black churches around the nation and its focus on racial equality and the color-blind nature of the Fourteenth Amendment became the foundation for the winning argument in Brown v. Board of Education, which undid Plessy over a half-century later.

Harlan wrote: “In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott Case” (He was right about that).  He added,  

In view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved. It is therefore to be regretted that this high tribunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a state to regulate the enjoyment by citizens of their civil rights solely upon the basis of race.

This ringing statement of racial and social equality was radical at the time, when it was taken for granted by many, if not most, that the races were too different to live together, and must have their relations closely managed by the hand of government.

I'd add as well that Harlan dissented from the key decisions in the Insular Cases that denied full constitutional rights to persons in the territories acquired after the Spanish-American War.  (See my discussion here, Part II.A..)  No one gets them all right though -- Harlan also dissented (inexplicably, to me) in United States v. Wong Kim Ark, which established birthright citizenship for U.S.-born children of Chinese immigrants.

Also, I think Harlan is fairly described as a textualist originalist (most of the time).  His dissents in Plessy, the Civil Rights Cases and the Insular Cases rely strongly on constitutional text and reject the majority's ventures into racist policy considerations.  This is why I find his vote in Wong Kim Ark especially mysterious, because in that case (as I argue in the article linked above, Part II.B.) the majority had the better textualist/originalist argument.  Chief Justice Fuller's dissent, which Harlan joined, was largely policy driven. (But three out of four is pretty good).

10/25/2021

Donald Drakeman on Garrett Snedeker on Donald Drakeman on Originalism
Michael Ramsey

At Starting Points, Donald Drakeman: What Were the Framers Views on Natural Law in Constitutional Interpretation? (responding to this review by Garrett Snedeker of Professor Drakeman's book The Hollow Core of Constitutional Theory: Why We Need the Framers).  From the introduction:

Garrett Snedeker’s thoughtful review of my book, The Hollow Core of Constitutional Theory: Why We Need the Framers, concludes by requesting a follow-up essay. In particular, he asks how my call to bring the Framers’ intentions back into the core of constitutional interpretation relates to what Snedeker, Hadley Arkes, and their James Wilson Institute colleagues call “A Better Originalism.” They argue that today’s “timid, positivist originalism” must boldly embrace the “influence of natural law on our nation’s founding.” Whether their approach is a more-faithful-to-the-founding method of constitutional interpretation by the Supreme Court will depend on the answers to a series of important historical questions.

Their arguments begin on solid historical ground. There is no shortage of references to self-evident truths and natural rights in the founding era. Citing James Wilson’s law lectures, Arkes has pointed out that the “founders recognized that there could . . .  be unjust laws.” Since Wilson was a sitting justice of the Supreme Court at that time, we might have expected him to follow that comment with something along the lines of what “A Better Originalism” urges, which is that the justices must “test the underlying moral justification for why a law exists.” But, instead of pointing to the Court, Wilson said that the people will assess the morality of a law. This presents an important research question.

Do we have strong evidence that the Framers believed that judges would generally be responsible for conforming constitutional meaning to the demands of justice? One answer has been provided by distinguished legal historian R.H. Helmholz, who has shown that the “then-current British and European jurisprudence . . .  held that laws . . .  deemed ‘odious’ because they were unjust or at odds with principles founded upon the law of nature” would be construed narrowly and not extended beyond their terms. Nevertheless, the terms themselves would be enforced as written, despite being in conflict with the law of nature. ...

And in conclusion:

In short, to make the case advanced by “A Better Originalism” regarding the proper role of the Supreme Court in constitutional decision making, there is a great deal of historical work to be done: sources identified and double checked, footnotes written, and assumptions tested. I look forward to reading the results.

10/24/2021

Cass Sunstein: Analogical Reasoning
Michael Ramsey

Cass R. Sunstein (Harvard Law School) has posted Analogical Reasoning (64 pages) on SSRN.  Here is the abstract: 

In law, the process of analogical reasoning appears to work in five simple steps. (1) Some fact pattern A—the “source” case—has certain characteristics; call them x, y, and z. (2) Fact pattern B—the “target” case—has characteristics x, y, and q, or characteristics x, y, z, and q. (3) A is treated a certain way in law. (4) Some principle or rule, announced, created, or discovered in the process of thinking through A, B, and their interrelations, explains why A is treated the way that it is. (5) Because of what it shares in common with A, B should be treated the same way. It is covered by the same principle. It should be clear that the crucial step, and the most difficult, is (4). Often analogical reasoning works through the use of incompletely theorized agreements, making (4) tractable. Some of the disputes about analogical reasoning reflect contests between Burkean and Benthamite conceptions of law.

(Via Larry Solum at Legal Theory Blog, who says "Highly recommended.  Download it while it's hot!")

I'm skeptical that (most) analogical reasoning is anything more than moral/policy analysis.  Not that there's anything wrong with that -- but in most cases it cannot be elevated to a logical imperative that provides a distinctly legal solution (as opposed to a moral/policy solution).  In Professor Sunstein's step (4), how is a "principle or rule, announced, created, or discovered"?  And why that "principle or rule" and not a broader or narrower one?  True, sometimes the "A" and the "B" are so close -- distinguished by differences that all would agree are immaterial -- that the treatment of B does follow as a logical matter from the treatment of A.  But usually not, or at least not necessarily.

10/23/2021

More from Renee Lerner on the Second and Seventh Amendments
Michael Ramsey

Renee Lettow Lerner has concluded her guest-blogging on the Second and Seventh Amendments at Volokh Conspiracy (initial post noted here).  The posts are:

The Second Amendment vs. the Seventh Amendment: Substantive vs. Procedural Rights; Part 1: Similarities and Differences

The Second Amendment vs. the Seventh Amendment: Accountability and Understanding of Gun Owners and Civil Jurors

The Second Amendment vs. the Seventh Amendment: The Distinction Between Substantive and Procedural Rights

The Second Amendment vs. the Seventh Amendment: Procedural Rights and the Problem of Incorporation

The Second Amendment vs. the Seventh Amendment: The Terminal Decay of the Seventh Amendment and the Revival of the Second Amendment

The discussion is based on her article The Resilience of Substantive Rights and the False Hope of Procedural Rights: The Case of the Second Amendment and the Seventh Amendment, 116 Northwestern Law Review 275 (2021).

10/22/2021

Samuel Bray on Equity and U.S. v. Texas
Michael Ramsey

Apparently it turns on a Scalia opinion from the 1990s called Grupo Mexicano (that I had not heard of until quite recently) (but then I don't teach Federal Courts).  At Volokh Conspiracy, Professor Bray explains

I've begun a series of posts on equity in United States v. Texas. (The first post was here, and if you need a quick primer on what equity is, go here.) This will be the first of several posts on Grupo Mexicano. It's a Supreme Court case from the 1990s that says that the equitable jurisdiction of the federal courts is the jurisdiction of the English Court of Chancery (because of the Judiciary Act of 1789). Therefore, the Court concluded, the remedy requested by the plaintiff—a preliminary injunction to freeze the defendant's assets, sometimes called a Mareva injunction—could not be issued by federal courts.

That decision was bitterly contested, with Scalia writing for the five-justice majority and Ginsburg writing a vigorous dissent. The Scalia opinion isn't perfect. Among other things, it takes a legislature-first approach to equity that is a bit mind-boggling given that the equity is not a creature of statute (nor—this is an understatement—is it an area of particular legislative expertise). And there are passages in the majority opinion that could be read as saying that equity was fixed in 1789 and there can't be new developments.

But that's not the best reading of the majority opinion in Grupo Mexicano. Rather, the Court says that the equitable jurisdiction of the federal courts is the power to do what the Court of Chancery could do in 1789—and analogous things. So some development is allowed, but it has to be tied to the tradition of equity. And in taking this position, the Court in Grupo Mexicano was aligning with many other cases from the Supreme Court in the preceding century. Grupo Mexicano was a surprise to scholars who were done with the law/equity distinction, but its principles were not novel. (I work through Grupo Mexicano in my article The Supreme Court and the New Equity.)

The dissent in Grupo Mexicano by Justice Ginsburg captured some of the freedom of movement in equity. But the real problem was that she identified no limiting principles. If equity was just "flexibility," then there was nothing a federal court couldn't do.

The next post applies this to U.S. v. Texas

[T[he district court rejects—and rightly so—the argument that equity is limited to "the exact claims" that were historically available. That would be a too-rigid reading of Grupo Mexicano. [Ed.: Well, I'm not so sure ... it was a Scalia opinion, after all.] But the district court goes further and gives three arguments for distinguishing Grupo Mexicano, and none of them work....

...

In effect, the district court opinion treats Grupo Mexicano as if the dissent had prevailed, with federal courts having an undefined power, subject to no strict limitations, to right all wrongs, subject only to congressional limitations. This is not a plausible reading of Grupo Mexicano. Indeed, on the district court's reading of that case, it would almost certainly have come out the other way. But the district court was right to call attention to the fact that the United States is suing in equity, and to the importance in equity of assessing whether there is an adequate remedy at law.

Also a Big Lebowski reference.

And some related thoughts on Grupo Mexicano from Josh Blackman here, with an excellent twist at the end.