Interpreting Tort Law,
2011
Cornell Law School
Interpreting Tort Law, Emily Sherwin
Cornell Law Faculty Publications
No abstract provided.
Introduction: Mission Accomplished,
2011
Washington and Lee University School of Law
Introduction: Mission Accomplished, Brandon Hasbrouck
Washington and Lee Law Review
No abstract provided.
Three Restatements Of Restitution,
2011
Washington and Lee University School of Law
Three Restatements Of Restitution, Andrew Kull
Washington and Lee Law Review
No abstract provided.
Moses V. Macferlan 250 Years On,
2011
Washington and Lee University School of Law
Moses V. Macferlan 250 Years On, W. M. C. Gummow
Washington and Lee Law Review
The continued influence of this decision of Lord Mansfield upon the scope of the action for money had and received is apparent in the Restatement (Third) of Restitution & Unjust Enrichment, recently adopted by the American Law Institute. The basic proposition that the action lies where the money was received in such circumstances that retention would offend equity and good conscience informs the Restatement. In particular, over definition and dissection of the defence of "change of position" by reference to "good faith" of the recipient diverts attention from the question whether in the circumstances of the case it would be …
Intent To Charge For Unsolicited Benefits Conferred In An Emergency: A Case Study In The Meaning Of "Unjust" In The Restatement (Third) Of Restitution & Unjust Enrichment,
2011
Washington and Lee University School of Law
Intent To Charge For Unsolicited Benefits Conferred In An Emergency: A Case Study In The Meaning Of "Unjust" In The Restatement (Third) Of Restitution & Unjust Enrichment, Louis E. Wolcher
Washington and Lee Law Review
This Article is a legal and jurisprudential case study that attempts to shed light on the use of the word "unjust" in the law of restitution as it has been reinterpreted by the new Restatement (Third) of Restitution & Unjust Enrichment. The particular case studied is the legal meaning of the term "intent to charge" in the law’s treatment of claims for unsolicited benefits conferred in emergencies. The author conducts a thought experiment involving the use of a sworn "Declaration of Intent to Charge for Benefits Conferred" to illustrate certain ambiguities and difficulties in the way the new Restatement deals …
Unjust Impoverishment: Using Restitution Reasoning In Today’S Mortgage Crisis,
2011
Washington and Lee University School of Law
Unjust Impoverishment: Using Restitution Reasoning In Today’S Mortgage Crisis, Peter Linzer, Donna L. Huffman
Washington and Lee Law Review
No abstract provided.
Restitution In A Contractual Context And The Restatement (Third) Of Restitution & Unjust Enrichment,
2011
Washington and Lee University School of Law
Restitution In A Contractual Context And The Restatement (Third) Of Restitution & Unjust Enrichment, Joseph M. C. Perillo
Washington and Lee Law Review
No abstract provided.
The Restitution Revival And The Ghosts Of Equity,
2011
Washington and Lee University School of Law
The Restitution Revival And The Ghosts Of Equity, Caprice L. Roberts
Washington and Lee Law Review
A restitution revival is underway. Restitution and unjust enrichment theory, born in the United States, fell out of favor here while surging in Commonwealth countries and beyond. The American Law Institute’s (ALI) Restatement (Third) of Restitution & Unjust Enrichment streamlines the law of unjust enrichment in a language the modern American lawyer can understand, but it may encounter unintended problems from the law-equity distinction. Restitution is often misinterpreted as always equitable given its focus on fairness. This blurs decision making on the constitutional right to a jury trial, which "preserves" the right to a jury in federal and state cases …
A Relational Critique Of The Third Restatement Of Restitution § 39,
2011
Washington and Lee University School of Law
A Relational Critique Of The Third Restatement Of Restitution § 39, David Campbell
Washington and Lee Law Review
In the Restatement (Third) of Restitution and Unjust Enrichment, breach of contract is regarded as a "wrong," and, in response to the perceived shortcomings of the current law of remedies based on compensatory damages, the proposed Section 39 seeks to provide for disgorgement of profit as an alternative remedy for "opportunistic" breach. In so doing, the Restatement is substantially repeating the argument for the extension of restitutionary remedies for breach of contract which recently has had great success in the Commonwealth. The restitutionary criticism of compensatory damages is, at root, that those damages are unable to prevent important forms of …
Beyond Ex Post Expediency—An Ex Ante View Of Rescission And Restitution,
2011
Washington and Lee University School of Law
Beyond Ex Post Expediency—An Ex Ante View Of Rescission And Restitution, Richard R.W. Brooks, Alexander Stremitzer
Washington and Lee Law Review
It is commonly held that if getting a contractual remedy was costless and fully compensatory, rescission followed by restitution would not exist as a remedy for breach of contract. This claim, we will demonstrate, is not correct. Rescission and restitution offer more than remedial convenience. Rational parties, we argue, would often desire a right of rescission followed by restitution even if damages were fully compensatory and costless to enforce. The mere presence of a threat to rescind, even if not carried out, exerts an effect on the behavior of parties. Parties can enlist this effect to increase the value of …
Common Law And Equity In R3rue,
2011
Washington and Lee University School of Law
Common Law And Equity In R3rue, Lionel Smith
Washington and Lee Law Review
One of the most remarked-upon achievements of the first Restatement of the Law of Restitution was the consolidation into a single treatment of all of the law that concerned the Reporters, whether it came from common law or Equity. In the Restatement (Third) of Restitution & Unjust Enrichment (R3RUE), there was initially an even more dramatic idea: to restate the law without even any reference to the historical distinction between common law and Equity. In the final product, however, there are several references to the peculiarly Equitable origins of certain juridical solutions to the problems addressed by this Restatement. The …
A Sin Of Admission: Why Section 62 Should Have Been Omitted From The Restatement (Third) Of Restitution & Unjust Enrichment,
2011
Washington and Lee University School of Law
A Sin Of Admission: Why Section 62 Should Have Been Omitted From The Restatement (Third) Of Restitution & Unjust Enrichment, Adam Rigoni
Washington and Lee Law Review
No abstract provided.
Proprietary Remedies In Insolvency: A Comparison Of The Restatement (Third) Of Restitution & Unjust Enrichment With English And Commonwealth Law,
2011
Washington and Lee University School of Law
Proprietary Remedies In Insolvency: A Comparison Of The Restatement (Third) Of Restitution & Unjust Enrichment With English And Commonwealth Law, Anthony Duggan
Washington and Lee Law Review
This Article deals with proprietary remedies, in particular the constructive trust, and their application in the defendant’s bankruptcy. The Article offers a comparative analysis of English and Commonwealth law with the relevant parts of the recently completed Restatement (Third) of Restitution & Unjust Enrichment. The discussion is organized around five simple hypotheticals, each representing issues which courts in England and other parts of the Commonwealth have found particularly troubling: mistaken payments; misrepresentation in the context of land dealings; misrepresentation in other contexts; breach of fiduciary obligation; and specific performance. The aim is to identify the likely outcome in each case …
Translocations And Inertia,
2011
Washington and Lee University School of Law
Translocations And Inertia, W. F. Young
Washington and Lee Law Review
No abstract provided.
Bp Oil Spill: Compensation, Agency Costs,And Restitution,
2011
Washington and Lee University School of Law
Bp Oil Spill: Compensation, Agency Costs,And Restitution, David F. Partlett, Russell L. Weaver
Washington and Lee Law Review
No abstract provided.
Indeterminacy And The Law Of Restitution,
2011
Washington and Lee University School of Law
Indeterminacy And The Law Of Restitution, James Steven Rogers
Washington and Lee Law Review
No abstract provided.
Cohabitation And The Restatement (Third) Of Restitution & Unjust Enrichment,
2011
Washington and Lee University School of Law
Cohabitation And The Restatement (Third) Of Restitution & Unjust Enrichment, Candace Saari Kovacic-Fleischer
Washington and Lee Law Review
The Restatement (Third) of Restitution & Unjust Enrichment clarified and modernized a field that had become muddled since the publication of the Restatement (First) in 1937. One area of modernization relates to the changes in law towards women, particularly changes in law toward female cohabitants. Published in 2011, the Restatement (Third) added a new Section 28, which rejected the view that it would be immoral for one cohabitant to bring suit against the other, and relaxed the restriction on recovery in unjust enrichment for “gratuitous” contributions. This Article reviews societal and legal changes for women since 1937 and notes that, …
When The Bezzle Bursts: Restitutionary Distribution Of Assets After Ponzi Schemes Enter Bankruptcy,
2011
Washington and Lee University School of Law
When The Bezzle Bursts: Restitutionary Distribution Of Assets After Ponzi Schemes Enter Bankruptcy, Mallory A. Sullivan
Washington and Lee Law Review
No abstract provided.
Measurement Of Restitution: Coordinating Restitution With Compensatory Damages And Punitive Damages,
2011
Washington and Lee University School of Law
Measurement Of Restitution: Coordinating Restitution With Compensatory Damages And Punitive Damages, Doug Rendleman
Washington and Lee Law Review
No abstract provided.
The Restatement (Third) Of Restitution & Unjust Enrichment: Some Introductory Suggestions,
2011
Washington and Lee University School of Law
The Restatement (Third) Of Restitution & Unjust Enrichment: Some Introductory Suggestions, Michael Traynor
Washington and Lee Law Review
No abstract provided.
