David A. Case has posted Article I Courts, Substantive Rights, and Remedies for Government Misconduct (forthcoming, Northern Illinois University Law Review) on SSRN.  Here is the abstract:

So-called Article I courts (namely the Tax Court, Court of Federal Claims, and Court of Appeals for Veterans Claims) can provide petitioners with remedies for illegitimate conduct by government attorneys, in the form of more favorable decisions. While the debate regarding whether Article I Courts possess inherent powers, or can base their decisions on equitable concepts is ongoing, using the history of the doctrine of sovereign immunity, the history of these courts, and Professors Hart and Sacks’ analysis of rights and remedies, the paper concludes that, when faced with government attorney misconduct these courts may provide litigants with a remedy. This issue is particularly important in light of Dixon v. CIR, 316 F.3d 1041 (9th Cir. 2003), in which the Ninth Circuit split with other circuits, and determined that the remedy for what resembled a Mary Carter agreement between the IRS and certain cooperating petitioners in a test case was to order the Tax Court to apply the favorable settlement arrangements to the injured petitioners. Thus, the Tax Court, effectively was told that it could and must apply the equitable doctrine of quasi-contract, in a court that other Courts of Appeals have held has no equitable powers.

This paper argues that this view is incorrect. In fact Article I Courts have equitable powers, and although equity cannot be used to vitiate a statutory regime, it can be used to provide litigants with remedies for abusive litigation behavior.

To reach this conclusion, this paper traces this history of claims against the government and sovereign immunity, as well as the effect of the petition clause, case or controversy clause and the Fifth Amendment’s just compensation clause upon the adjudication of rights created by statute. This view is then applied to Hart and Sacks’ rights and remedies dichotomy, to conclude that th Ninth Circuit was correct in ordering the Tax Court to impose, what amounts to an equitable remedy upon the Internal Revenue Service.