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RDG
online Restitution Discussion Group Archives |
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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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