The Mistake About Mistakes: Rethinking Partial Restitution
25 Pages Posted: 16 May 2018
Date Written: May 2, 2018
This Essay offers a critique of the conventional analysis of restitutionary claims. Currently, restitutionary claims are mostly analyzed under a tort-style framework; we show that this framework offers a distorted perspective, not fully capturing the unique characteristics of claims in restitution. Most importantly, the prevailing mode of analysis generates inaccurate results – by scholars and courts alike. In particular, the tort-style analysis supports limited restitution as a superior regime, compared to the option of full restitution. We demonstrate that this prevailing conclusion is unfounded. In fact, and contrary to conventional wisdom, the regime of full restitution can be preferable to the regime of limited restitution. The Essay highlights the significance of this conclusion for current policy debates.
Keywords: restitution, remedies, mistaken payments, economic analysis, change of position
JEL Classification: K11, K12, K13, K22
Suggested Citation: Suggested Citation