This should be right up the alley for those who've wondered when I'll get back to the law. Enough theology and politics, some might think; let's get to something both more this-worldly and down to earth. I have, of course, blogged on the Restatement (Third) Restitution and Unjust Enrichment (R3RUE) before (see here, here, and here).
Since last spring I've been working my way through not only the substance of equity--unjust enrichment--but also the so-called proprietary remedies for equitable claims--constructive trust, equitable lien, subrogation, and rescission & restitution. Sounds exciting, eh?
For various reasons the substance of equity is no longer taught in American law schools. The proprietary remedies are covered, if at all, as part of a larger course on remedies that by its nature must cover all legal and equitable remedies, which leaves little time for what I find most interesting. The quartet of remedies are called proprietary for a reason: in addition to the common law of property there with which folks are generally familiar, there is an equity of property that, if properly applied, give an equitable owner every bit as much right to the "bundle of sticks" of property as a legal owner.
What makes the proprietary remedies sexy is their intersection with bankruptcy. (Boy meets girl. Girl dumps boy. Years later boy tries to reignite the romance. Will he succeed? Turn to the Bankruptcy Reports in about 10 years and find out.) Bankruptcy courts have always been assiduous to protect legal ownership of third parties from the claims of a bankruptcy debtor's creditors. Not so with equitable ownership. Reaching its nadir with the 1994 decision of Omegas Group, 16 F.3d 1443, the Sixth Circuit rejected out of hand even the possibility of ownership arising from an equitable proprietary remedy. Since then the American Law Institute has labored to restate the substance of unjust enrichment as well as all of the equitable remedies with what has culminated in the R3RUE. If it proves persuasive, the R3RUE should clarify the place of the proprietary remedies in the American legal landscape and will, I expect, have a noticeable impact in the world of bankruptcy law.
Take a look at the abstract of my working draft, Third Time's the Charm: The Coming Impact of the Restatement (Third) Restitution and Unjust Enrichment in Bankruptcy by clicking here. Go ahead and download it and give it a read. Because it's a working draft, there are more than a few gaps. However, I would be very grateful for any additions, corrections, or suggestions of any sort.
Since last spring I've been working my way through not only the substance of equity--unjust enrichment--but also the so-called proprietary remedies for equitable claims--constructive trust, equitable lien, subrogation, and rescission & restitution. Sounds exciting, eh?
For various reasons the substance of equity is no longer taught in American law schools. The proprietary remedies are covered, if at all, as part of a larger course on remedies that by its nature must cover all legal and equitable remedies, which leaves little time for what I find most interesting. The quartet of remedies are called proprietary for a reason: in addition to the common law of property there with which folks are generally familiar, there is an equity of property that, if properly applied, give an equitable owner every bit as much right to the "bundle of sticks" of property as a legal owner.
What makes the proprietary remedies sexy is their intersection with bankruptcy. (Boy meets girl. Girl dumps boy. Years later boy tries to reignite the romance. Will he succeed? Turn to the Bankruptcy Reports in about 10 years and find out.) Bankruptcy courts have always been assiduous to protect legal ownership of third parties from the claims of a bankruptcy debtor's creditors. Not so with equitable ownership. Reaching its nadir with the 1994 decision of Omegas Group, 16 F.3d 1443, the Sixth Circuit rejected out of hand even the possibility of ownership arising from an equitable proprietary remedy. Since then the American Law Institute has labored to restate the substance of unjust enrichment as well as all of the equitable remedies with what has culminated in the R3RUE. If it proves persuasive, the R3RUE should clarify the place of the proprietary remedies in the American legal landscape and will, I expect, have a noticeable impact in the world of bankruptcy law.
Take a look at the abstract of my working draft, Third Time's the Charm: The Coming Impact of the Restatement (Third) Restitution and Unjust Enrichment in Bankruptcy by clicking here. Go ahead and download it and give it a read. Because it's a working draft, there are more than a few gaps. However, I would be very grateful for any additions, corrections, or suggestions of any sort.
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