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Legal Epistemology in the Restatement (3d) of Restitution and Unjust Enrichment

16 Pages Posted: 3 Apr 2012  

Lionel Smith

McGill University, Faculty of Law, Paul-André Crépeau Centre for Private and Comparative Law

Date Written: April 2, 2012

Abstract

The publication of the Restatement (3d) of Restitution and Unjust Enrichment is an important accomplishment, on at least two levels. Its contribution, actual and potential, to the development of the law is beyond question. Equally important is the legal epistemology adopted in R3RUE. In the law of unjust enrichment, even more so than in other fields of private law, legal realism has been associated with the decline of respect in the U.S. for doctrinal scholarship. However, like most publications in the Restatement project, R3RUE stands against this rejection of doctrine. It situates itself in the interpretive tradition that has been a hallmark of the development not only of the common law, but of the civil law as well.

In this text, I have three aims. The first is to explore some of the characteristics of the traditional Western epistemology of private law, in order to understand its default position of respect for elaborated doctrine. The second goal is to assess the approach in R3RUE to the important topic of constructive trusts. My argument will be that in this field, R3RUE is ambivalent. It combines traditional epistemology with, in some respects, the law-skeptical approach that arose in the wake of American legal realism. My argument will be that the attempt to draw on these incongruent epistemologies — these different ways of knowing what the law is — leads to tension and inconsistency in the positions taken in R3RUE. The third goal is to evaluate whether and to what extent this matters. Is there any particular reason why we should adopt a single way of knowing what the law is?

Keywords: restitution, unjust enrichment, legal doctrinal scholarship, restatement, american legal realism

JEL Classification: K1

Suggested Citation

Smith, Lionel, Legal Epistemology in the Restatement (3d) of Restitution and Unjust Enrichment (April 2, 2012). Boston University Law Review, Vol. 92, 2012. Available at SSRN: https://ssrn.com/abstract=2033226

Lionel Smith (Contact Author)

McGill University, Faculty of Law, Paul-André Crépeau Centre for Private and Comparative Law ( email )

3690 Peel Street
Montreal, Quebec H3A 1W9
Canada
514-398-4670 (Phone)
514-398-4659 (Fax)

HOME PAGE: http://www.mcgill.ca/law/about/profs/smith-lionel

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