Dear Colleagues;

While this list is not about criminal law issues, there is a very interesting decision from the US Supreme Court which has just been handed down, PAROLINE v. UNITED STATES et al. No. 12-8561;  April 23, 2014 http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=12-8561 which in the course of discussing causation under a statute, makes some comments about causation in tort law. The dreadful facts involve a girl whose images have been circulated on the internet as child pornography, and the defendant who was identified as having some of those images on his computer. The statute requires “full restitution” to be made for damage “proximately caused”. The issue (which divided the court three ways) is whether the harm caused by the circulation of these images to millions of people on the internet can be fully sheeted home to the one defendant. It involves the well-known causation conundrum of whether, when “but for” causation can’t be established (it was not possible to say that the emotional and other harm caused by wide circulation of the photos would have been removed “but for” the actions of this particular defendant), some form of liability for “aggregate” causation can be used, and if so the appropriate measure of damages. The majority say, the whole amount can’t be ordered against this one defendant, but the court should order a “non-trivial” damages award as a notional representation of the contribution he made to the harm. One combined dissent says, the statute just doesn’t say this and we can’t award any damages of this sort. Sottomayor J in a separate dissent says, the statute says “full restitution” and that is what should be ordered. 

Regards

Neil