Loser Takes All: Multiple Claimants & Probabilistic Restitution

33 Pages Posted: 8 Aug 2019 Last revised: 9 Aug 2019

See all articles by Maytal Gilboa

Maytal Gilboa

University of Toronto

Yotam Kaplan

Bar-Ilan University - Faculty of Law

Date Written: August 5, 2019


Consider these two seemingly unrelated recent scandals: The publicized fall from grace of cyclist Lance Armstrong, and the truly ruinous Madoff pyramid scheme. These cases (as well as a plethora of more mundane scenarios discussed throughout this article) share a common feature, hitherto scantly discussed by courts and legal scholars: causal ambiguity in restitution claims involving multiple claimants. In such cases, a wrongdoer was enriched at the expense of others – sometimes a great many others – and it is therefore difficult to determine exactly which possible victim is indeed the source of the wrongdoer’s enrichment. In such cases, it can be near impossible to preponderantly prove the identity of the claimant at whose expense the wrongdoer was enriched. This article is the first to identify this problem as a reoccurring pattern in restitutionary claims.

By making this novel contribution, the article fills an important gap in the literature and identifies a new paradigm within the law of restitution, that of causal ambiguity in multiple-claimant cases. This vacuum in the literature on restitutionary claims is especially striking, considering the vast scholarship on a closely related topic, namely causal ambiguity in multiple-defendant tort cases.

The article argues and demonstrates that the existing rules of the law of restitution do not provide appropriate solutions in multiple-claimant cases. Under existing law, many deserving claimants – sometimes all of them – can be left with no remedy, thereby denied of their rights and not compensated for harms they suffered at the hands of a wrongdoer. Drawing on the more developed literature on causal ambiguity in tort law, we propose a solution for this injustice by presenting, for the first time, a new concept of probabilistic restitution. The article shows that the proposed regime can lead to just and efficient outcomes, serving the goals of both interpersonal justice and deterrence.

Suggested Citation

Gilboa, Maytal and Kaplan, Yotam, Loser Takes All: Multiple Claimants & Probabilistic Restitution (August 5, 2019). Available at SSRN: https://ssrn.com/abstract=3432330 or http://dx.doi.org/10.2139/ssrn.3432330

Maytal Gilboa

University of Toronto ( email )

Toronto, Ontario M5S 3G8

Yotam Kaplan (Contact Author)

Bar-Ilan University - Faculty of Law ( email )

Faculty of Law
Ramat Gan, 52900

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