Kokesh Footnote Three Notwithstanding: The Future of the Disgorgement Penalty in SEC Cases

This article, by Professor William D. Warren of UCLA School of Law, analyzes Kokesh v. SEC where the Supreme Court held that disgorgement – a tool used by the SEC to recover ill-gotten gains through the courts – was a penalty rather than a remedy for the purposes of determining the appropriate statute of limitations. Warren contends that Kokesh raises questions about the validity of disgorgement as a sanction, especially considering issues of SEC authority, judicial power, and interstitial lawmaking.