The Freedom of Information Act (FOIA) requires federal agencies to disclose records upon request from the public, subject to statutory exemptions. Increasingly, agencies have relied on a nonstatutory mechanism, known as the Glomar response, to avoid disclosure. This mechanism, which allows agencies to refuse to confirm or deny the very existence of records, prevents courts and FOIA requesters from receiving even the basic information necessary for judicial review. As courts attempt to adapt FOIA's review framework to the increased evidentiary constraints of Glomar responses, they are divided over whether to consider disclosures from outside the agency responding to the FOIA request. This Note argues that the apparent circuit split on the consideration of these external disclosures reflects a broader doctrinal instability, rather than a clean division of approaches. To resolve the unsettled state of the law, this Note proposes statutory and judicial guidance to standardize Glomar review and prevent agencies from exercising unfettered discretion when refusing to confirm or deny.
American law on foreign judgments is at an inflection point. For over a century, the doctrine has been shaped by concerns about outgoing U.S. judgments seeking asset collection in the civil law countries of continental Europe. But shifting trade flows and changing litigation tactics have carved a new landscape, demanding a return to foreign judgments law's conceptual and doctrinal underpinnings. This Article first maps the new landscape, in which China is rapidly rising as a foremost foreign judgments interlocutor. Meanwhile, litigants are increasingly pursuing parallel litigation in multiple countries. The impact of incoming judgments and the interactions between related litigations are more important than ever. Next, this Article presents the most comprehensive study to date of the relationship at the center of the new landscape-that between the United States and China. It shows that there are two types of foreign judgments that existing doctrine fails to adequately distinguish: (1) those in the absence of parallel litigation that seek judicial assistance to collect on a judgment debtor's U.S.-based assets and (2) those stemming from parallel litigation that seek judicial yielding to short-circuit ongoing adjudication in U.S. courts through preclusion. Each type has distinctive patterns in political economy, comity implications, and sovereignty costs that are not unique to the U.S.-China dyad but reflect inherent differences. Finally, this Article argues that modern foreign judgments law should account for these differences. Asset collection needs to be fully decoupled from international preclusion; references to sister-state
Disgorgement is the U.S. Securities and Exchange Commission's (SEC) most powerful enforcement tool and among its most controversial. For decades, federal courts treated disgorgement in securities enforcement actions as an equitable remedy, a view that the U.S. Supreme Court confirmed in Liu v. SEC. Months after Liu, Congress passed the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021, which codified disgorgement in SEC enforcement actions. The codification of disgorgement sparked a circuit split between the U.S. Courts of Appeals for the Fifth and Second Circuits over whether Congress created a new statutory form of the remedy. This split, however, has focused exclusively on wrongdoers, leaving unresolved how the codified remedy affects relief defendants, who are traditionally required to disgorge only funds that satisfy a two-part equitable test. This Note fills that doctrinal gap by extending both circuit interpretations to relief defendants. Extending the Fifth Circuit's expansionist view could displace the two-part test and convert disgorgement into a forfeiture tool that reaches nonwrongdoers. Extending the Second Circuit's continuity view would preserve the two-part test but may leave enforcement gaps that allow wrongdoers to dissipate funds before SEC recovery. This Note argues that courts should not extend the expansionist view to relief defendants for two reasons. First, the relief-defendant doctrine cannot be severed from its equitable foundation without undermining the principles that justify compelling recovery from nonwrongdoers. Second, absent clear statutory authority, extending broad disgorgement to parties who have not violated securities laws would raise due process concerns. Courts should, therefore, preserve the equitable two-part test absent a clear congressional mandate.
Beginning in the 1930s, Congress enacted a series of statutes granting presidents the authority to initiate reorganizations of the administrative state. Under these reorganization statutes, the president determined any necessary changes in agency organization and submitted a reorganization proposal to Congress, which could approve or reject the plan. Over the next fifty years, the president and Congress worked cooperatively to promote the effective and efficient functioning of the administrative state. Despite the successful reorganization initiatives undertaken pursuant to these statutes, Congress has not conferred reorganization authority on any president in the last four decades. As a result, the organization of the administrative state has largely stagnated. Ultimately, in his second term, President Donald J. Trump attempted to reorganize the administrative state unilaterally, leading to significant separation-of-powers violations and harm in various sectors. This issue prompts consideration of the salience of interbranch reorganization procedures in American government and society. This Note proposes a permanent reorganization statute that incorporates both the executive and legislative branches in reorganization procedures. The advocated approach seeks to expand congressional authority and provide meaningful guidance for judicial review, thereby ensuring greater participation and oversight by each branch in the operation of the administrative state and empowering the government to more effectively serve its people.
The U.S. Supreme Court's 2013 decision in American Express v. Italian Colors Restaurant was widely seen as the death knell for the "effective vindication of rights" doctrine-a judicially created rule that arbitration agreements are enforceable only "so long as the prospective litigant effectively may vindicate its statutory cause of action in the arbitral forum." By upholding a class action-banning arbitration provision that rendered arbitration economically irrational, Italian Colors appeared to extinguish any meaningful limits on the enforcement of arbitration agreements. But reports of the doctrine's demise were premature. This Article uncovers how, in the decade since Italian Colors, lower courts have quietly retooled the effective vindication doctrine. To do so, they have drawn on overlooked passages in Justice Antonin Scalia's opinion that preserved challenges to arbitration clauses that prohibit the assertion of federal rights or render the arbitral forum practically inaccessible. These footholds are becoming foundations, as courts in recent years have invalidated arbitration terms that strip remedies, suppress injunctive relief, impose prohibitive costs, or distort procedural fairness in ways that frustrate Congress's statutory design. Far from being a relic, effective vindication has reemerged as a potent, if underappreciated, constraint on arbitration's expansion. Its quiet revival reveals a deeper judicial reckoning with the limits of privatization and signals the possibility of an arbitration jurisprudence that once again takes statutory enforcement seriously.
