Restatement of the Law Third: Restitution and Unjust Enrichment, 2 vols.

• Author: Smith, Lionel
• Position: Book review

American Law Institute, Restatement of the Law Third: Restitution and Unjust Enrichment, 2 vols (St Paul, Minn: American Law Institute, 2011), pp xxxvi, 670; pp xxxii, 745. ISBN 978-0-314-92962-4, 978-0-314-60468-2.

The publication of the Restatement of the Law Third: Restitution and Unjust Enrichment is an important accomplishment. (1) Like all restatements, it will have a significant influence on the development of the law, within and without the United States. This particular restatement, moreover, has the destiny of reviving a field that has long lain dormant in the United States.

The subject of this restatement has a strange history in that country. During the nineteenth century, the common law emerged from being a science of pleading to a science of rights and obligations. Textbook writers systematized much of it, often drawing on civilian learning. The common law of unjust enrichment, however, resisted this trend, paradoxically because of the pleading history that should now have been left behind. Before the abolition of the forms of action, much of unjust enrichment was pleaded through indebitatus assumpsit, which was also used to enforce a great deal of what we would now call contract law. When the forms of action were abolished, it was no longer necessary for lawyers to classify grievances and claims in those outdated formal boxes. (2) It was, however, necessary for lawyers to classify them somehow. This is why it was so important that the great textbooks were written, to order and organize thinking about the law of torts and the law of contracts. Through this systematizing period, the autonomy of unjust enrichment was ignored, and it retained its old position as a kind of supplement to the law of contract, even though obligations in unjust enrichment are imposed by operation of law.

Andrew Kull, the reporter of the R3RUE, has shown the role played by James Barr Ames in the process of reception into US common law of the civilian idea of unjust enrichment, in the late nineteenth century. (3) This set the stage for the first Restatement of Restitution, which played a determinative part in the launch of restitution as an autonomous subject of study in the common law world. (4) Many other landmarks followed and the subject is now thriving. Ironically, though, it nearly disappeared in the United States. This may have been partly because of a general loss of interest in the doctrinal study of law; (5) although other basic fields such as contracts, torts, and trusts did not have near-death experiences during the twentieth century. In the 1980s, there was an effort to produce a Restatement Second of Restitution, but it was never finished. (6) Andrew Kull has suggested that as time passed US lawyers collectively forgot about restitution. (7)

This is one of the reasons why the R3RUE is so important. It has the didactic burden of re-educating US lawyers about one of the crucial parts of private law. It is carefully crafted to fulfill this role. Andrew Kull is the leading scholar of the law of restitution in the United States and has been working on this project since the 1990s. He deserves tremendous credit for taking an enormous body of complicated law and turning it into a series of seventy sections of clearly restated law, which, with the supporting notes, fill two substantial volumes. This is a mighty work, and the worthy fruit of many long years of careful scholarly devotion.

What is a restatement, and how is it created? The American Law Institute (ALI) was founded in 1923 for the improvement of the law. It counts some three thousand members, most of whom are practicing lawyers, but many of whom are judges and law professors. Most of the members are based in the United States, but some of them are not. The restatements are not its only publications, but they are numerous and well-known. (8) In principle, the author of a restatement is the ALI itself, although most of the work is done by the reporter of any particular restatement. The basic structure of a restatement is a series of numbered propositions, not wholly unlike a code. The propositions are set in heavy type, and in the vernacular of the ALI, they are called the black letter. To take an example:

[section] 69. Notice

(1) As used in this Restatement, the expression "without notice" means without notice of the facts giving rise to the restitution claim against which a defense is potentially interposed.

(2) A person has notice of a fact if the person either knows the fact or has reason to know it.

(3) A person has reason to know a fact if

(a) the person has received an effective notification of the fact;

(b) knowledge of the fact is imputed to the person by statute (including provisions for notice by filing or recording) or by other law (including principles of agency); or

(c) other facts known to the person would make it reasonable to infer the existence of the fact, or prudent to conduct further inquiry that would reveal it.

Within each section, the black letter text is followed by explanatory comments, some of which include illustrations (usually adapted from actual cases), and by a Reporter's Note, which seeks to show the basis in case law for the preceding black letter proposition. And here is a critical point: in principle a restatement restates the law; it summarizes and clarifies the law. It is not a legislative project, and unlike a model law, it is not intended to lead to legislation. But where there are multiple strands in the case law, a restatement usually takes a position on what is the "better view"; and in some cases, the view that it promotes may be a minority rather than a majority view.

In its relationship to the case law, then, a restatement is rather like a textbook: it purports to explain the case law, and it binds no court in any technical sense. Like a textbook, its authority rests on the persuasiveness of its arguments, and perhaps on the authority of its author. And on this point, it is important to notice that the process by which a restatement is written is not at all like that for a textbook. The reporter generates draft text (black letter and supporting commentary), called a "preliminary draft"; this text is circulated for comment among a self-selecting group of ALI members, namely the Members...