That's the Restatement Third, Restitution and Unjust Enrichment for the non-legal cognoscenti out there. Both insiders and everyone else might be interested to know that the American Law Institute has approved the final text of the R3RUE The ALI and Washington & Lee School of Law sponsored a symposium about the product of this 12+ years drafting endeavor on Friday. Lots of folks presented papers. Most were excellent (read: I thought they were interesting).
I've been interested in the topic of restitution in my teaching because the moral issues are closer to the surface than they are in, say, sales law. Restoring "unjust enrichment" to the title of the R3RUE makes this even more clear. It is especially helpful to contrast the overt morality of restitution/unjust enrichment with the utilitarianism that dominates contract theory (an issue to which I've alluded here and here).
Notwithstanding the excellent papers and the open-ended invitation to flesh out the contours of a moral theory that could justify a body of law called unjust enrichment, only one presenter took full advantage of the opportunity. Louis Wolcher's paper began by pointing out the failure of the Restatement itself to provide an account of justice (an omission I don't begrudge, given the nature of the document). He went on to observe, however, that for the opening to "justice" in its title, the text of the Restatement itself as well as its comments want to stay as far away as possible from justice as a norm. Instead, justice is a shorthand for policies derived from already-stated law. Justice, then, is a gap-filler, not a rule or even a principle.
In a different legal setting, I suggested here that this might be the best we can hope for in contemporary secular legal systems. But that was in a quite different context, one in which there was a rule. One might hope in this setting that legal academics might be able to articulate an account of justice by which to evaluate the success of courts when it comes to remedying unjust enrichment. After all, that's what the courts claim they are doing.
Perhaps another symposium is in order.
I've been interested in the topic of restitution in my teaching because the moral issues are closer to the surface than they are in, say, sales law. Restoring "unjust enrichment" to the title of the R3RUE makes this even more clear. It is especially helpful to contrast the overt morality of restitution/unjust enrichment with the utilitarianism that dominates contract theory (an issue to which I've alluded here and here).
Notwithstanding the excellent papers and the open-ended invitation to flesh out the contours of a moral theory that could justify a body of law called unjust enrichment, only one presenter took full advantage of the opportunity. Louis Wolcher's paper began by pointing out the failure of the Restatement itself to provide an account of justice (an omission I don't begrudge, given the nature of the document). He went on to observe, however, that for the opening to "justice" in its title, the text of the Restatement itself as well as its comments want to stay as far away as possible from justice as a norm. Instead, justice is a shorthand for policies derived from already-stated law. Justice, then, is a gap-filler, not a rule or even a principle.
In a different legal setting, I suggested here that this might be the best we can hope for in contemporary secular legal systems. But that was in a quite different context, one in which there was a rule. One might hope in this setting that legal academics might be able to articulate an account of justice by which to evaluate the success of courts when it comes to remedying unjust enrichment. After all, that's what the courts claim they are doing.
Perhaps another symposium is in order.
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