Commercial Bribery: Choice and Measurement Within a Remedies Smorgasbord

Abstract

Searching for the most suitable money remedy for a simple commercial bribe promptly lands a lawyer, judge, professor, student, or researcher in a remedial smorgasbord. De-emphasizing injunctions, commercial bribery offers a spectrum of monetary remedies.

The plaintiff has two defendants, the briber and the bribee. He has two major remedies, damages and restitution. The overlapping policies consist of compensating the plaintiff, preventing the defendants’ unjust enrichment, deterring the defendants and others, and punishing the defendants. Courts implement these policies with compensatory damages, restitution, and punitive damages. A bribe can be returned as damages or restitution, a significant distinction. Punishment points the court’s remedial compass at punitive damages. The law distinguishes between legal restitution and equitable restitution. Equitable restitution distinguishes between constructive trust and accounting-disgorgement; if a defendant has other creditors, the distinction takes center stage. Recovery from the briber adds the possibility of duplication. The possibilities of confusion and excess lurk in the wings.

Bribery is a private law-public law hybrid; commercial bribery is on the private law side. Commercial bribery plays a role in three recent Restatements; Employment, Restitution, and Agency. Courts in the United States cite persuasive authority from other common-law jurisdictions to fill gaps in local positive law. Domestic courts may learn from others about alternative solutions to shared problems. Some differences, for example, in jury trial, statutes, punitive damages and equitable restitution, frustrate complete unification.

Stating the courts’ choice and measurement alternatives proves to be a daunting task. In addition, this Article is generous with advice about the routes lawyers and courts should take. This Article adduces legal theory in an effort to clarify the better choices. Plaintiffs’ lawyers have a wide range of possibilities. The courts’ demanding duty is to align policies, remedies rules, and solutions. The results turn out to be challenging at best, often problematic. The risk of inaccuracy and over-correction is pervasive. The search has not found a substitute for human judgment. Principles of confinement, understanding of alternatives, and careful contextual analysis will improve courts’ decision making.

Keywords: bribes, gifts, remedies, torts, contracts, employment, fiduciary, damages, restitution, disgorgement, unjust enrichment, constructive trust, accounting, punitive damages, compensation, deterrence, punishment, agency, law and economics, comparative law, corrective justice, distributive justice

JEL Classification: K10, K13, K20, K30, K40