The Reemergence of Restitution: Theory and Practice in the Restatement (Third) of Restitution

Abstract:     
The ALI's Restatement (Third) of Restitution provides one of the most interesting expressions of contemporary legal conceptualism. This paper explores the theory and practice of post-realist conceptualism through a review and critique of the Restatement. At the theoretical level, the paper develops a typology of different forms of conceptualism, and shows that the Restatement has more in common with the high formalism of the nineteenth century than with contemporary modes of private law discourse. At the level of substantive doctrine, the paper explains why labels in fact make a difference, and assesses which recoveries are more (and less) likely under the Restatement's scheme. The final section returns to consider why the Restatement reprises the jurisprudence of classical formalism. I suggest that the mythos of legal conceptualism is necessary for introducing a new field that claims to reflect foundational principles of the common law's system of private ordering. Further this mode of discourse helps overcome the dissonance of creating a new field of law in a work that purports to restate existing doctrine.

Keywords: restitution, unjust enrichment, Restatement (Third) of Restitution, Neoformalism, conceptualism

Accepted Paper Series