Category Archives: Unjust enrichment
Steven Feldman, ‘Rescission, Restitution and the Principle of Fair Redress: A Response to Professors Brooks and Stremitzer’
Abstract: Brooks and Stremitzer write that a limited rescission model is “excessive” and based on a “misunderstanding” of the economic effects of these remedies.Their key premise is that legal authorities have exaggerated the threat to contract stability and other normative values posed by liberal access to rescission. Therefore, the authors posit that rational parties from [...]
Just published: Mitchell and Swadling (eds), The Restatement Third: Restitution and Unjust Enrichment
“The publication of the Restatement Third: Unjust Enrichment and Restitution by the American Law Institute in July 2010 was an event of major importance, not only for the development of the law of unjust enrichment in the US, but also for global scholarship relating to this area of private law. The Restatement First appeared in [...]
C Scott Pryor, ‘Third Time’s the Charm: The Coming Impact of the Restatement (Third), Restitution and Unjust Enrichment in Bankruptcy’
Abstract: Bankruptcy courts have frequently been characterized as courts of equity. Often this characterization has accompanied unusually relaxed interpretation or application of a provision of the Bankruptcy Code. However, this understanding does not exhaust the meaning of equity in bankruptcy. Historically, equity covered a large range of topics–trusts and estates, injunction, contracts, specific performance, unjust [...]
Peter Jaffey, ‘Restitutionary Remedies in the Contractual Context’
Abstract: Contracting parties sometimes have a claim to recover money paid in advance, or for reasonable payment for work done under the contract, commonly described as restitutionary remedies. This claim arising out of a contract is nowadays generally regarded as a non-contractual, unjust enrichment claim governed by the modern law of unjust enrichment, by contrast [...]
Caprice Roberts, ‘Teaching Remedies from Theory to Practice’
Abstract: Remedies is about how different, disparate things fit together. The Remedies course provides an analytical framework to explore the varied goals of substantive doctrinal courses, showing how discreet bodies of law connect. At the same time, Remedies presents its own doctrines and goals, which may run parallel or in contrast to the goals of [...]
Jonathan DeBlois, ‘Restitutionary Recovery: The Appropriate Standard of Care for Emergency Rescue Reimbursement by Hikers’
“During the fiscal year ending in June 2009, there were 131 emergency rescues in New Hampshire at a total cost of about $175,000. Traditionally, in New Hampshire and elsewhere in the United States, the cost of these rescues would be borne by the government. The reasoning behind not charging individuals for rescue services was based [...]
Dan Priel, ‘The Law and Politics of Unjust Enrichment’
Abstract: One of the marked differences between American private law and the private law of the rest of the common law world is the relative lack of interest in restitution in the former compared with the enthusiasm for the subject in the latter. It has recently been suggested that this difference has to do with [...]
Rebecca Tushnet, ‘Judges as Bad Reviewers: Fair Use and Epistemological Humility’
Abstract: The future of fair use depends on whether judges act like bad reviewers, or whether they behave differently in interpreting challenged works than they do in almost every other aspect of judging. Ordinarily, judges are asked to produce definitive answers about the meanings of texts. But when it comes to literary judgments, the bad [...]
Stephen Smith, ‘A Duty to Make Restitution’
Abstract: The rules governing impaired transfers are widely thought to lie at the core of unjust enrichment law. This essay defends two propositions about these rules. First, there is no duty, in the common law, to make restitution of benefits obtained as the result of an impaired transfer (for example, a transfer made by mistake [...]
Peter Jaffey, ‘The Unjust Enrichment Fallacy and Private Law’
Abstract: The theory of unjust enrichment – the theory supporting the recognition of a doctrinal category of unjust enrichment – has been accepted across much of the common law world. The recognition of a doctrinal category is not just a matter of presentation. It has a role in legal reasoning that reflects the fact that [...]
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