The Law and Politics of Unjust Enrichment

University of Toronto Law Journal, Volume 63, number 4 (2013), Forthcoming

Osgoode CLPE Research Paper No. 15/2013

41 Pages Posted: 16 Mar 2013 Last revised: 18 Mar 2013

See all articles by Dan Priel

Dan Priel

York University - Osgoode Hall Law School

Date Written: March 15, 2013

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

Suggested Citation

Priel, Dan, The Law and Politics of Unjust Enrichment (March 15, 2013). Osgoode CLPE Research Paper No. 15/2013. Available at SSRN: https://ssrn.com/abstract=2234202

Dan Priel (Contact Author)

York University - Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada

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