Common Law and Equity in R3RUE

Table of ContentsI. Introduction 1186II. Theorizing Equity 1187III. Equity and the Restatement (Third) of Restitution & Unjust Enrichment 1 193IV. Conclusion 1202I. IntroductionThe Restatement of the Law of Restitution: Quasi-Contracts and Constructive Trusts' achieved many things. One of them was to consolidate into a single treatment all of the law that concerned the Reporters, whether it came from common law or Equity.2 This was the subject of a great deal of positive commentary at the time.3 Andrew Kull has shown, in a moving study, that the impetus for this unification came from the largely unpublished work of James Barr Ames, and that it was built on his deep learning in both the common law and the civil law traditions.4In the Restatement (Third) of Restitution & Unjust Enrichment (R3RUE), there was initially an even more dramatic idea: to restate the law without even any reference to the historical distinction between common law and Equity. In the final product, however, there are several references to the peculiarly Equitable origins of certain juridical solutions to the problems addressed by this Restatement, namely the law of unjust enrichment and the remedies therefor, and the remedies available to take away the profits of wrongdoing.5The goal of this Article is to take a critical look at this evolution in the drafting of R3RUE. Ought the Reporter to have kept to the original idea, which would have perfected, in a sense, the accomplishment of the first Restatement? Or, is there a good reason to continue to distinguish between common law and Equity, even while we know very well that, in at least some dimensions, the dichotomy is little more than an accident of history? This Article argues that there are some respects in which common law and Equity remain fundamentally and substantively different. For the moment, full fusion therefore rests in a state of impossibility. Fusion is achievable; but the road is rockier than most jurists realize. Some of the differences between common law and Equity are profound, and bridging them requires not just translation but also a kind of transliteration. The rewards of such an exercise, however, would be rich.Everyone knows that the incidents of an Equitable interest in property are fundamentally different from the incidents of a common law interest in property. For example, in resolving a priority dispute, the classification of competing interests as legal or Equitable is an essential first step, for the applicable priority rules are different in the two cases. But those labels are merely jurisdictional. Their continued importance reveals that we are far from having a single organizing system. If we arrived at a point where we could describe and discuss legal and Equitable property interests, including their creation, characteristics, transfer, and destruction, without using those merely jurisdictional labels, we would be ready to comprehend all of private law within a single organizing system.II. Theorizing EquityThe law that comes from Equity has not been as thoroughly theorized as the common law. The nineteenth century saw a flourishing of textbooks in the common law world, particularly in England but also in the U.S. Of course, the common law had long had great books, going back to the one known as Bracton in the thirteenth century, and following through the centuries with dozens of works. Some were justly famous like those of Littleton, Coke and Blackstone; many more were less so - less justly famous, or less famous, justly or not. But there was something new in the crop of books that appeared in the nineteenth century, in which we find Anson, Pollock, Chitty, and Story. …