Restitution's Realism

This chapter describes the foundations of (significant parts of) the American law of restitution. It argues that this body of law can, and therefore should, be read as a contextual application of our commitments to autonomy, utility, and community in various situations of benefit-based liability or benefit-based recovery. LER shows that, because different restitutionary doctrines involve differing categories of interpersonal relationships, they invoke different interpretations and different balances of these values. And yet, maybe unsurprisingly, LER also demonstrates, at least at a high level of generality, how these core liberal values serve (or should serve) as the normative underpinnings of the law of restitution in its entirety. Since LER's publication in 2004, a number of review essays and book reviews have appeared. Reviewers have suggested interesting insights and several intriguing critiques. This chapter appreciates these challenges, and has addressed them in order to rethink and, in some cases, defend some of LER's main propositions more successfully. Not all the points raised in these reviews have been covered and the chapter has not been able to do justice to all their subtleties. The discussion has been confined to several recurrent themes focusing on LER's jurisprudential premises. These premises are legal realist, at least according to the chapter's reconstruction of this school's lessons. Some of the critics argue that LER fails because it is too infused with realism; others complain that LER is not loyal enough to the realist legacy. The chapter discusses both sides. Before embarking in a dialogue with critics, however, it outlines an understanding of legal realism, it explains the ways in which LER is indeed an exercise in legal realism, and provides a summary of LER's analysis of the law of mistakes.