Restitution in America: Why the U.S. Refuses to Join the Global Restitution Party

Abstract:     
In the past generation, restitution law has emerged as 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 sharp contrast to the Commonwealth, in the United States, scholarly interest in restitution, in terms of books, articles, treatises, symposia and courses on restitution is meager, at best. Similarly, while restitution, equity and tracing cases receive considerable treatment at the highest levels of the English judiciary, U.S. courts do not seem interested in these issues, and unlike Commonwealth courts, rarely produce theory-laden opinions that attract scholarly attention. The situation is particularly curious because restitution is thought to be the invention of late nineteenth century American scholars. Moreover, as late as the 1970's, the vitality of American restitution was favorably contrasted with the dearth of such law and scholarship in England.

This article explains this divergence. I argue that the Commonwealth restitution discourse is largely a product of pre- or anti-realist legal thought which generates skepticism within the American academic-legal establishment. The paper identifies the two dominant camps in American private law thought - the left-leaning redistributionalists and the center-right law and economics movement - and shows that neither has any use for the Commonwealth's discourse. I conclude by analyzing the emerging drafts of the Restatement of Restitution and forecast the future of American restitution law.

Keywords: restitution, unjust enrichment, Peter Birks, private law, legal realism, comparative law, Commonwealth law, Anglo-American Law

Accepted Paper Series