Some long-time readers my recall my posts here and here on the (then) new Restatement Third Restitution and Unjust Enrichment. I went on to publish an article about what I thought would be the useful impact of the R3RUE in bankruptcy: Third Time's the Charm: The Coming Impact of the R3RUE in Bankruptcy (download here or here).
Even though my article did not examine the history and place of the law of restitution in the common law of America, I nonetheless wish that I had read Chaim Saiman's piece, Restitution in America: Why the US Refuses to Join the Global Restitution Party (download here) before I wrote mine. Quoting from Saiman's abstract:
Read Saiman's article for yourself and see if you concur with his evaluation.
Even though my article did not examine the history and place of the law of restitution in the common law of America, I nonetheless wish that I had read Chaim Saiman's piece, Restitution in America: Why the US Refuses to Join the Global Restitution Party (download here) before I wrote mine. Quoting from Saiman's abstract:
In the past generation, restitution law has emerged as a global phenomenon. From its Oxbridge home, restitution migrated to the rest of the Commonwealth, and ongoing Europeanization projects have brought the common law of restitution into contact with the Romanist concept of unjust enrichment, further internationalizing this movement. In contrast, in the United States, scholarly interest in restitution, in terms of books, articles, treatises, symposia and courses on restitution, is meager. ... I argue that the Commonwealth restitution discourse is largely a product of pre- or anti-realist legal thought which generates scepticism within the American academic-legal establishment. The article identifies the two dominant camps in American private law thought—left-leaning redistributionalists and the centre-right legal economists—and shows that neither has any use for the Commonwealth’s discourse. (Emphasis added.)Just so (the italicized portion). The article is worth reading in its entirety but I can confirm that the pervasive legal "realism" that passes for deep insight in US law schools found little traction when I have taught in India, a Commonwealth nation. Most of the world apart from the US legal academy believes there are transcendent principles of justice that (should) norm both the substantive law and practice of judging. Alternatively, non-American academics believe that it is possible to find within the acts of judgment a consistent analytic framework. In other words, most legal scholars in the rest of the world believe that the law is something more than a judge's predilections.
Read Saiman's article for yourself and see if you concur with his evaluation.
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