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Lionel Smith
Thu, 20 Feb 1997 11:25:47
Restitution for Wrongs


Nicola Shaw wrote:

The successful civil proceedings against OJ Simpson raise an interesting issue with regard to restitution for wrongdoing. Following his acquittal in the criminal trial, OJ has made significant profits from the sale of his book and from interviews on (primarily) the murder trial. If we accept a wider basis for giving restitution for torts and prima facie allow recovery for such a wrong, could the estates of the victims claim restitution for these profits?

The unusual feature is that the profits are derived from his acquittal for a wrong which on a reduced standard of proof he was found liable for. Is there any theory of remoteness in restitution for wrongdoing which might exclude such recovery - ie. does the fact that the profits stem from a previous trial and acquittal on those facts sever the connection between them and the wrongdoing as established by the subsequent civil suit?

I am sure there are remoteness limitations in restitution for wrongdoing, but I am not sure that they are of this sort. The tort having been proved, it seems to me that there could be a claim to the profits even if there had been a failed criminal prosecution. Remoteness and causation issues would be more along the lines of: causation: how much of the profit from the book derived from the writer's skill as opposed to the wrong? remoteness: what about the gains from a profitable investment made with the profits from the book?

It is also interesting to speculate what would have happened if he had been convicted. In this particular case there would be statutory provisions covering the profits of crime which might or might not make provision for victims, as opposed to state confiscation. In the absence of such, are there two wrongs and hence two claimants for disgorgement of profits? How would we divide or apportion the gains?

Lionel Smith
St. Hugh's College
Oxford, U.K.
Tel (0)1865 274 966; Fax (0)1865 274 912

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