29 Pages Posted: 16 Jun 2008
In exploring the most fundamental question in restitution theory of what separates just from unjust enrichments, this essay undertakes three interconnected missions. The first is to situate the types of cases that prompt liability in restitution within a wider universe of enrichments, including those that trigger taxation as well as those deemed benevolent. My second mission is to defend the view that the concept of property cannot serve as the baseline for distinguishing just from unjust enrichments, and we should instead resort to the normative guidance of the foundational liberal values of autonomy, utility, and community. My third task is to show that this orientation need not generate legal indeterminacy or strip the law of restitution from its constitutive characteristics as one part of our private law. Rather, I argue that my approach to restitution theory can yield a happy doctrine, composed of sharp rules and not vague standards, and responsive to the properly interpreted injunction of correlativity that underlies the legitimacy of private law.
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