The Law and Politics of Unjust Enrichment

Abstract

One of the marked differences between American private law and the private law of the rest of the common law world is the relative lack of interest in restitution in the former compared with the enthusiasm for the subject in the latter. It has recently been suggested that this difference has to do with the impact of legal realism on American law. It was realism’s disdain for doctrinal analysis, it is said, which explains why American scholars did not find the largely doctrinally-driven work on restitution very interesting. In this essay I reject this argument as it fails to explain why American scholars did not turn to non-doctrinal restitution scholarship in the same way they have in areas like contract or tort. I offer a different explanation instead, one that derives from the different understanding of the relationship between law and politics among (mainstream) American and Commonwealth lawyers. I argue that it is this difference that explains both why Commonwealth lawyers felt the need to develop restitution as a solution to outstanding problems in other areas of private law, and why American lawyers, in their different political tradition, had little need for restitution to perform this role. I further argue that legal realism does not explain the difference between the U.S. and the Commonwealth on this matter. On the contrary, I argue that the very different fates of legal realism in the U.S. and in other parts of the common law world are explained by the very same underlying differences between law and politics the essay identifies.

Keywords: restitution, unjust enrichment, comparative law, legal realism, formalism