Academic journal article Michigan Law Review

Restoring Restitution to the Canon

Academic journal article Michigan Law Review

Restoring Restitution to the Canon

Article excerpt

RESTORING RESTITUTION TO THE CANON Restatement (Third) of Restitution and Unjust Enrichment. Andrew Kull, Reporter. St. Paul: American Law Institute Publishers. 2011. Volume One. Pp. xxxviii, 670. Volume Two. Pp. xxxii, 745. $262.


The Restatement (Third) of Restitution and Unjust Enrichment brings clarity and light to an area of law long shrouded in fogs that linger from an earlier era of the legal system. It makes an important body of law once again accessible to lawyers and judges. This new Restatement should be on every litigator's bookshelf, and a broad set of transactional lawyers and legal academics would also do well to become familiar with it.

Credit for this Restatement goes to its Reporter, Professor Andrew Kull.1 Of course his work benefited from the elaborate processes of the American Law Institute, with every draft reviewed by a Members' Consultative Group, a committee of Advisers, the Council, and the Membership.2 I was an active part of that consultative process; I know this project well.3 But Professor Kull controlled the word processor and did the work, and only he had the breadth and depth of understanding to complete this project. No one else in the American legal academy could have done it since John Dawson and George Palmer, the two great Michigan restitution scholars of the mid- twentieth century.4 And at least for contemporary legal audiences, Dawson and Palmer would not have done it nearly as well. They were too much a part of the earlier era that American lawyers no longer understand.

I. Academic Neglect

By the later stages of Dawson's and Palmer's careers, restitution and unjust enrichment was becoming a neglected field. But restitution's importance to the law is greatly disproportionate to the amount of systematic attention it has received over the last generation. The law of restitution and unjust enrichment creates distinctive causes of action with many and diverse applications-to mistake, to joint owners and joint obligors, to unenforceable contracts, to disrupted transactions of all kinds. And it creates distinctive remedies with applications to all sorts of causes of action-to claims in contract, tort, and unjust enrichment, and to claims for equitable wrongs and for violation of statutes. The cases continue to arise, as attested by the many recent citations in the Reporter's Notes in the new Restatement. But few lawyers or judges come to these cases with any systematic understanding of the field, and until now, most of them have found the available reference books difficult to use.

The restitutionary causes of action dropped out of the curriculum of American law schools in the third quarter of the twentieth century, largely by accident. Innovative law teachers created the modern remedies course by combining separate courses in damages, equity, and restitution, and the idea spread rapidly after about 1960.5 This change led to a great improvement in the teaching of remedies, including restitutionary remedies. But combining three courses into one left many things on the cutting room floor, including the restitutionary causes of action. And no one picked them up.

The result is that hardly anyone who graduated from law school in the last forty years has taken a restitution course, and at least by 1989 (probably a good bit earlier), there was no restitution casebook in print.6 When a lawyer or judge encounters a restitution problem today, there is a substantial risk that she will view it as an isolated problem, only dimly aware that there is a large body of law on restitution and unjust enrichment and that arguments about her particular problem can be tested and refined in light of larger principles.

Before this new Restatement, she might also have found it hard to investigate either that larger body of law or her particular problem within it. Contemporary lawyers do not find the other available reference books very user friendly. The first Restatement of the Law of Restitution,7 and Palmer's four-volume treatise,8 each give substantial weight to the historic division between law and equity and to the historic scope of quasi-contract. …

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