What is Specific about Specific Restitution

Abstract

An important functional difference among restitutionary remedies is between giving a plaintiff the monetary value of the defendant's unjust enrichment or giving the plaintiff an identifiable asset that constitutes the defendant's unjust enrichment. This difference commonly is labeled by scholars to be a difference between a money judgment and "specific restitution." This terminology obscures important concepts, such as that a plaintiff's asset-based remedy might be for a fund of money or that recovery of an asset might not constitute "specific" relief-that is, the plaintiff might not get the thing to which the plaintiff originally was entitled. In many of its uses by scholars, there is nothing "specific" about specific restitution. This article situates the term specific restitution within the larger context of how the term "specific" is used in the law, and it examines how scholars and courts have used "specific restitution." Finally, the article turns to the American Law Institute's ongoing project to produce a Restatement (Third) of Restitution and Unjust Enrichment. The article recommends that the Restatement dispense with the term "specific restitution" and rely on the more accurate term "asset-based restitution."