The Law and Ethics of Restitution

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September 2004



Dagan's book provides a dynamic and much needed account of the American law of restitution. The book reviews the existing doctrine, including the forthcoming (third) Restatement, using an ethical perspective to expose and examine critically the normative underpinnings of the core categories of restitution. Dagan also discusses some of the most controversial issues in the area, such as cohabitation, improper tax payments, and the role of constructive trusts as trumps in bankruptcy. He further tackles the recent restitution claims of slave laborers (or their descendants) against corporations that benefited from their enslavements, and of governmental bodies against injurious industries. Dagan argues that the concept of unjust enrichment is not an independent reason for restitution but, rather, serves as a loose framework, structuring the contextual application of commitments to autonomy, utility, and community in situations where either the cause of action or the measure of recovery is benefit-based. By integrating doctrinal and ethical analyses of restitution across the spectrum of restitution contexts, the author offers significant and provocative insights on existing law as well as possible reforms.


1. Introduction; 2. Preventing unjust enrichment; 3. Mistakes; 4. Other-regarding conferrals of benefits; 5. Self-interested conferrals of benefits; 6. Restitution in contexts of informal intimacy; 7. Wrongful enrichments; 8. Restitution in a contractual context; 9. Restitution in bankruptcy; 10. Reasons for restitution.


Hanoch Dagan is Professor of Law and Jurisprudence at Tel-Aviv University, and Affiliated Overseas Professor at the University of Michigan Law School. He wrote Unjust Enrichment: A Study of Private Law and Public Values (1997). His recent articles have been published in the California Law Review, Columbia Law Review, Michigan Law Review, New York University Law Review, Texas Law Review, Virginia Law Review, and Yale Law Review.


'In this well-argued and persuasive book, Hanoch Dagan undertakes a doctrinal and normative analysis of the American law of restitution ... Professor Dagan's approach to this multifaceted field requires him to wear different masks on different occasions, appearing [] sometimes as status quo-reinforcing conservative and other times as rule-revising revolutionary. The comprehensiveness and clarity of the book unlocks the exciting practical and theoretical potential of, to invoke Richard A. Epstein's metaphor, a common law coach restored to its former stability running atop four robust substantive wheels.' Harvard Law Review 'Hanoch Dagan undertakes to explain and justify the American law of restitution. He offers a broad theoretical account of this poorly understood subject, designed not only to fortify the substantive law of restitution but also to clarify the role and methodology of courts in developing the field ... Dagan has written an excellent book on a difficult subject. His analysis of restitution is careful, readable, extremely well-informed, and normatively attractive. It succeeds very well in presenting restitution as an accessible and appealing field of law.' Michigan Law Review 'Dagan's book is a significant milestone in the reawakening of the law of restitution in the legal academy of the United States. Its range and depth make it an effective protest against the marginalization of restitution. Dagan displays the intellectual richness of restitution by offering an intense and sustained analysis across the entire range of restitutionary problems ... Throughout, Dagan treats the law of restitution as a dynamic phenomenon whose every element calls for justification.' Virginia Law Review '... what we have here is a clearly-argued and highly sophisticated treatment of a large number of the major issues arising in restitution cases ... You may not agree with the arguments: but if you do not, you will have to mount some pretty sophisticated ones of your own. In any case, this is an excellent, scholarly and readable work that will not have much chance to gather dust on a restitution lawyer's shelves. Restitution Law Review 'The book is a beautifully researched and argued analysis for the specialist. It is unusual in conception and execution but it is impressive, firstly, in its presentation of the central issues that arise in relation to important cases of the law of restitution. It also offers a very interesting and sometimes challenging critique of mainstream theory.' Edinburgh Law Review 'Dagan's thoughtful and thought-provoking book is a welcome and fundamental reappraisal of the ethical basis of the modern law of restitution ... [He] has produced an important and illuminating work with lessons of general application which will be of value throughout the common law world. He set himself the optimistic task of integrating the normative discourse into the legal analysis; and, in this task, he has succeeded admirably.' Dublin University Law Journal 'The Law and Ethics of Restitution is a monumental work which rightly seeks to make normative theory directly relevant to the development of restitutionary rules at ground level and which bares to the world some of the key value choices facing the law today.' Oxford Journal of Legal Studies '... Hanoch Dagan's book is a unique and welcome addition to the field. ... the book is a welcome, original and timely addition to restitution jurisprudence, which will force lawyers to question and justify current doctrine.' The Cambridge Law Journal '... substantial contribution to the literature ...' Journal of Law in Context
EAN: 9780521829045
ISBN: 0521829046
Untertitel: New. Sprache: Englisch.
Erscheinungsdatum: September 2004
Seitenanzahl: 398 Seiten
Format: gebunden
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