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I have been waffling on this since I wrote the e-mail yesterday and I see the great force in Lionel's and Daniel's explanations. With that said, does it not still seem that there is an inconsistency in the cocaine situation-- by allowing recovery, the court is saying that my right to property (money or whatever) includes the right to make a profit by deploying it in an illegal manner. Is this not the same inconsistency that worried the court in Hall v. Hebert?

If Lionel is right there would be no inconsistency if the tortfeasor was forced to pay lost wages to the bookie, so long as those damages were recognized to have disabilities (i.e. being subject to confiscation by the government in a separate action). If it is just complicity in the wrong that distinguishes the situations of tort and restitution, thinking aloud, why could one not say that I become complicit in the wrong by accepting the profits from it, especially in a situation where everyone is disbarred from using property in that way?

In response to Daniel, could not a difference between the Reading v. Att-Gen. situation and the cocaine situation be that in Reading, the plaintiff could sell the right to allow officers to travel around (it was not illegal for them to use their property in that way) but that in the cocaine situation it would have been illegal for both the plaintiff and the defendant to sell the cocaine? Hence, no inconsistency in one, but an inconsistency in the other; recovery in one, no recovery in another.

I more I think about it, the less sure I am.

Jason

Just trying to wrap my head around some of the issues.

Daniel Friedmann wrote:

Lionel Smith is right. Where the plaintiff is entitled to recover in restitution the defendant's profits, his right of recovery includes the defendant's ill-gotten gains. The fact that the defendant acted illegally will not shield him from liability provided of course that the plaintiff was not involved in the illegality. See e.g. Reading v. Att-Gen. Another example is discussed in 80 Columbia L. Rev. 504, 555-56. The same approach should apply in the context of tracing.

Daniel Friedmann