Encroachments: Between Private and Public

Abstract:     
This article analyzes three areas of restitution in encroachment settings: restitution of benefits gained through the misappropriation of another's resource (such as trespass, conversion, or infringement of the plaintiff's intellectual property rights); restitutionary damages following a profitable breach of contract; and restitution of gains secured by breaching a fiduciary duty. The article highlights the normative choices which are implicit in the seemingly technical question of prescribing the pecuniary remedy in these types of cases, showing how the values of autonomy, utility and community shape the specific doctrinal details. The inevitable normative choices the law of restitution must render the corrective justice account of this (or any other) body of law - as a realm in and of itself, with an internal logic that is isolated from social values - impossible. However, because the normative choices discussed in these article shape the parties' ex ante entitlements, they do not deprive restitutionary cases of their nature as encounters between a particular plaintiff and a particular defendant. Thus, the restitutionary doctrine governing encroachments lies between private and public.

Number of Pages in PDF File: 30

Accepted Paper Series