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Dear all:

I feel that I have taken way too much space in the conversation in the past few days, so I will only briefly respond to Lionel's invocation of corrective justice. I think that the question is not whether corrective justice is relevant to the justification of full disgorgement. Rather, the ultimate question is whether such a justification can be fully articulated without any reference to the normative question of whether the plaintiff's entitlement is (or should be) libertarian, as opposed to utilitarian. Choosing the former (but not the latter) implies a right to exclusive control which, in turn, can only be fully vindicated with a set of remedial rules that effectively deter potential infringers. I discuss these issues in much more detail in my critique of Weinrib in 98 Michigan L. Rev. 138 (1999).

Hanoch

At 09:40 AM 3/27/03 -0500, Lionel Smith wrote:

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.