Rationalizing restitution

Significant uncertainty shrouds the modern law of restitution. Few American lawyers, judges, or law professors are familiar with even the standard propositions of the doctrine, and the few who are continue to disagree about elementary issues of definition. This Article argues that the law of restitution will remain inaccessible until these issues are resolved; and that the way to resolve them is to follow the basic proposition of modern restitution to its logical conclusion. This means describing the subject exclusively in terms of liability for unjust enrichment. To this end, the author argues (i) that the supposed instances of ''restitution without enrichment,'' described in a celebrated article by John Dawson, are not in fact instances of restitution at all; (ii) that ''specific restitution'' bears no useful relation to the law of unjust enrichment; and (iii) that restitution should not be viewed as a remedial option, because it constitutes an independent basis of liability (comparable to contract and tort) having characteristic remedies of its own. In a concluding section the author indicates some areas of the law, notably the law governing mistaken payments, in which a ''rationalized'' law of restitution might change outcomes in litigated cases.