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Sender:
Lionel Smith
Date:
Thu, 27 Mar 2003 09:40:15 -0500
Re:
Disgorgement

 

I register my disagreement with the proposition stated by a number of people who have posted, that disgorgement (or full disgorgement) can only be justified on the basis of deterrence. There is a perfectly good argument that the profits must be surrendered as a matter of corrective justice. Then there is a second order issue, whether this is appropriate for all wrongs or only some wrongs.

I thank Jamie for his kind words, although I note that one implication of my position to which he refers is this. If there has been a transfer which is normatively untenable, it must be reversed whether or not the defendant has done anything wrong. Hence the category 'restitution (in the narrow sense that excludes disgorgement) for wrongs' may be otiose, inasmuch as the wrong is not doing any normative work to explain restitution. Looking at it from the other direction, if the wrong is one which supports disgorgement, then the defendant must give up any gain; any deprivation of the plaintiff becomes immaterial, and so again the category 'restitution (in the narrow sense that excludes disgorgement) for wrongs' looks unnecessary.

 

Lionel


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