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Brief of Reporter and Advisers to Restatement (Third) Restitution and Unjust Enrichment, as Amici Curiae in Support of Respondent

46 Pages Posted: 22 Nov 2011  

Doug Rendleman

Washington and Lee University - School of Law

Douglas Laycock

University of Virginia School of Law

Date Written: November 17, 2011

Abstract

Restitution may be a casualty in a collision with the constitutional law of standing. Article III is traditionally said to require an “injury in fact” for standing to be a plaintiff in federal court. Edwards, who alleges that First American paid a bribe or kickback in violation of the federal Real Estate Settlement Procedures Act, seeks to recover the statutory penalty. Defendant argues that even if it violated the Act, Edwards suffered no “injury in fact.” Our amicus brief in support of Edwards alerts the Supreme Court to the many restitutionary claims either for a wrongdoer’s profits or to set aside transactions tainted by wrongdoing that do not involve any “injury” to plaintiff that would qualify as an “injury in fact” under First American’s apparent definition of that term. Our brief argues that just as a plaintiff’s standing to sue for damages differs from her standing to sue for an injunction, her standing to sue for restitution must be different from either. The Court must base a plaintiff’s standing to sue for each remedy or form of relief on the nature of that relief and on the substantive-law premises that underlie the plaintiff’s cause of action. The Court should not, perhaps inadvertently, bar from federal court plaintiffs suing for restitution of a defendant’s unjust enrichment. Such a development would be particularly unfortunate in light of the 2011 publication of the American Law Institute’s Restatement (Third) of Restitution and Unjust Enrichment.

Keywords: Restitution, Constitutional Law, Standing, Federal Court, Real Estate Settlement Procedures Act, Damages, Remedy, Unjust Enrichment

JEL Classification: K10, K20

Suggested Citation

Rendleman, Doug and Laycock, Douglas, Brief of Reporter and Advisers to Restatement (Third) Restitution and Unjust Enrichment, as Amici Curiae in Support of Respondent (November 17, 2011). Washington & Lee Legal Studies Paper No. 2011-20. Available at SSRN: https://ssrn.com/abstract=1961261 or http://dx.doi.org/10.2139/ssrn.1961261

Doug Rendleman (Contact Author)

Washington and Lee University - School of Law ( email )

Lexington, VA 24450
United States

Douglas Laycock

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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