Restitution's Realism

Abstract

In The Law and Ethics of Restitution (LER) I offered an account of the foundations of (significant parts of) the American law of restitution. I argued that this body of law can, and therefore should, be read as a contextual application of our commitments to autonomy, utility, and community in various situations of benefit-based liability or benefit-based recovery. LER shows that, because different restitutionary doctrines involve differing categories of interpersonal relationships, they invoke different interpretations and different balances of these values. And yet, maybe unsurprisingly, LER also demonstrates, at least at a high level of generality, how these core liberal values serve (or should serve) as the normative underpinnings of the law of restitution in its entirety. Since LER's publication in 2004, a number of review essays and book reviews have appeared. Reviewers have suggested interesting insights and several intriguing critiques. I appreciate these challenges, and have addressed them in this essay to rethink and, in some cases, defend some of LER's main propositions more successfully. I am obviously unable to cover all the points raised in these reviews or do justice to all their subtleties, and have confined my discussion to several recurrent themes focusing on LER's jurisprudential premises. These premises are legal realist, at least according to my reconstruction of this school's lessons. Some of the critics argue that LER fails because it is too infused with realism; others complain that LER is not loyal enough to the realist legacy. In this essay, I discuss both sides. Before embarking in a dialogue with my kind critics, however, I outline my understanding of legal realism, explain the ways in which LER is indeed an exercise in legal realism, and provide a summary of LER's analysis of the law of mistakes, on which many of my reviewers have focused.