Date: Thu, 2 Nov 2006 06:50:41 -0600

From: John Goldberg

Subject: Defamation and compensation for enrichment

Jason:

Do the concepts of theft and conversion really work here? Or is this just metaphor? And if it is metaphor, is it apt? I find it awkward to think of reputation as a thing that can be "owned," "stolen," "cashed-in on," etc. If one owns one's reputation, doesn't this mean that, in some literal sense, one is claiming ownership other people's thoughts about oneself? This seems a disturbing thought. Isn't it cleaner to treat defamation not as akin to theft but as a straightforward personal injury tort, with damages not for the conversion of one's property, but to make amends for the wronging of the victim and the losses attending that wrong (plus perhaps 'aggravated' (punitive) damages where warranted)?

John G

-------------------------------------------------------------------------
From: Jason Neyers
Sent: Thursday, November 02, 2006 6:26 AM
To: KA Oliphant
Cc: Mårten Schultz
Subject: Re: ODG: Defamation and compensation for enrichment

Dear Mårten:

At the level of principle, I would think that the plaintiff should get gain-based damages as outlined in Rookes, but the reason for it is not punishment. Rather it is due to the fact that the defendant has stolen the plaintiff's reputation and converted it into cash. As between the two, the plaintiff has the entitlement to this gain (it was his reputation) and therefore he is entitled to the cash, as a matter of compensation not punishment. There is an interesting article that deals with these issues called "Restitutionary Damages as Corrective Justice by Weinrib (in Theoretical Inquiries in Law journal) and a book by Edelman called Gain-based Damages.

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