Restitution and Unjust Enrichment
Unjust enrichment is a source of civil liability parallel to tort and contract. That is, you can be civilly liable without having done anything wrong, simply because you have received a thing of value that rightly belongs to someone else. People pay the same money twice, or pay it once to the wrong person; they build houses on the wrong lot; they perform contracts that turn out to be unenforceable; they act unilaterally in emergencies and plan to sort it out later — there are an amazing variety of circumstances that put assets in the wrong hands without anything that looks like either tort or breach of contract.
Restitution also provides an attractive set of remedies for profitable wrongdoing — remedies that recover the defendant’s profits rather than the plaintiff’s loss, and that sometimes get the plaintiff paid while all the defendant’s other creditors go unpaid.
This seminar will examine the law of restitution using drafts of the proposed Restatement (Third) of Restitution and Unjust Enrichment as a resource. Early in the semester, we will emulate the deliberative processes of the American Law Institute, constituting the students as advisors to the Restatement, charged with criticizing and debating representative sections. The drafts and the appended Reporter’s Notes will provide rich sources of potential paper topics and recent cases. Each student will prepare a paper on a topic of his or her choice, and late in the semester, present that paper to the class.