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Revaluing Restitution: From the Talmud to Postsocialism (Reviewing Hanoch Dagan's Unjust Enrichment)

Posted: 28 Feb 2000  

Michael Heller

Columbia University - Columbia Law School

Christopher Serkin

Vanderbilt Law School

Abstract

Whatever happened to the study of restitution? Once a core private law subject along with property, torts and contracts, restitution has receded from American legal scholarship. Hanoch Dagan's book "Unjust Enrichment: A Study of Private Law and Public Values" threatens to reverse the tide and make restitution interesting again. The book shows how we can examine commonplace words such as "value" and "gain" to extract the core social values embedded in the private law. The technicalities of unjust enrichment reveal compelling stories about property, personhood, and national ethos. In our review, we put Dagan's jurisprudential approach to the practical test of explaining restitution in postsocialist societies. We focus on Eastern Europe, where the Czechs put elderly people back in their childhood apartments, while the Hungarians offered compensation coupons for use in privatization auctions. Dagan's theory provides some order for the hodgepodge of national mythmaking, political accident, and cultural posturing that has surrounded the postsocialist restitution frenzy. His framework suggests some surprising insights, for example, that more aggressive restitution may prove less protective of private property rights. In turn, the Eastern European experience challenges Dagan's portrayal of the feel-good ethos of sharing by suggesting a more troubling take on the meaning of community.

JEL Classification: K10, K11, K33, P26, P30

Suggested Citation

Heller, Michael and Serkin, Christopher, Revaluing Restitution: From the Talmud to Postsocialism (Reviewing Hanoch Dagan's Unjust Enrichment). Michigan Law Review, Vol. 97, No. 6, Pp. 1385-1412, 1999. Available at SSRN: https://ssrn.com/abstract=210348

Michael Heller (Contact Author)

Columbia University - Columbia Law School ( email )

435 West 116th Street
New York, NY 10025
United States

Christopher Serkin

Vanderbilt Law School ( email )

131 21st Avenue South
Nashville, TN 37203
United States
615-343-6131 (Phone)

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