By Hanoch Dagan
ISBN-10: 0511216483
ISBN-13: 9780511216480
ISBN-10: 0521829046
ISBN-13: 9780521829045
Dagan's publication offers a dynamic and masses wanted account of the yankee legislation of restitution. The ebook stories the prevailing doctrine, together with the drawing close (third) Restatement, utilizing a moral standpoint to reveal and seriously learn the normative underpinnings of restitution's middle different types. the writer additionally discusses the most debatable concerns within the zone, equivalent to cohabitation, unsuitable tax funds, and the function of positive trusts as trumps in financial disaster. He argues that the idea that of unjust enrichment isn't an autonomous explanation for restitution yet, fairly, serves as a free framework, structuring the contextual software of commitments to autonomy, software, and neighborhood in events the place both the reason for motion or the degree of restoration is benefit-based. via integrating doctrinal and moral analyses of restitution around the spectrum of restitution contexts, the writer deals major and provocative insights on latest legislation in addition to attainable reforms.
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Extra resources for Law and ethics restitution
Example text
L. Rev. 249 (1897). 11 12 the law and ethics of restitution in terms of this one unified reason. Concerns about existing doctrine are, at times, summarily dismissed by reference to their role in preventing unjust enrichment. ) Innovative rules are advocated and vigorously defended on the grounds that they properly vindicate the principle against unjust enrichment. ) This chapter describes and criticizes this approach that understands unjust enrichment as an argument for restitution. It further critiques the attempts of some modern scholars, notably Andrew Kull, the reporter for the new Restatement, to preserve the role of unjust enrichment as the “core idea” of the law of restitution7 by understanding it as referring to “unjustified enrichments,” that is: enrichments that lack an adequate legal basis.
John D. McCamus, Unjust Enrichment: Its Role and Its Limits, in Equity, Fiduciaries and Trusts 129, 147–53 (Donovan W. M. , 1993). Another type of weak discretion – where an official “has final authority to make a decision and cannot be reviewed and reversed by any other official” – is irrelevant for my purposes. Ronald Dworkin, Taking Rights Seriously 31–33, 69–71 (1977). 16 the law and ethics of restitution the context of adjudication) even strong discretion implies, as Dworkin admits, a duty to decide fairly and rationally.
885, 922–26 (2000). ”49 I find no reason to enshrine in such a way the rules that happen to exist at the moment in which we proudly announce the principle of unjustified enrichment. 51 I do not think that this result reflects Birks’ intention or the direction of the new Restatement. Rather than entrenching the status quo, maybe their idea of looking downward to the cases is to stay reasonably close to existing rules. But, whatever this prescription means regarding the pace of legal evolution, it is hard to see how it can inform the direction of such evolution.
Law and ethics restitution by Hanoch Dagan
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