Three Restatements of Restitution

For the time being, the American Law Institute is well pleased with its Restatement Third, Restitution and Unjust Enrichment. Work on the project admittedly consumed fifteen years (from 1996 to 2011), but progress was generally steady and meetings harmonious. Its completion has been an occasion for official celebration, of which the present Symposium forms a festive part. With actual publication still some weeks away, it is possible to hope that R3RUE will regain some of the influence of the original Restatement of Restitution - the work whose publication by the ALI in 1937 created the modern subject. If we are indeed about to witness the long-overdue revival of U.S. restitution law that some optimists have predicted, the ALI's decision to stand by its creation - re-restating the law of restitution for a profession that was well on its way to forgetting it - will receive and deserve the credit.Whether R3RUE will have any such influence remains to be seen. If the law of restitution in this country has been neglected so long that it is already past resuscitating, as some pessimists have warned, this story of another failed attempt to revive it will be of little interest to anyone not directly involved. But should R3RUE meet a favorable reception, it might one day be interesting to recall how close the project came to not happening. The success of the path-breaking 1937 Restatement had already been in some respects fortuitous. To move beyond it, the ALI first had to live down the tumultuous episode of its attempted Restatement Second, Restitution (begun in 1980, abandoned in extremis in 1985). Then in the early 1990s it had to resist the seductive proposal that it jettison the troublesome topic of Restitution and replace it with a newly conceived Restatement of Remedies. Doing so would have largely obliterated the American law of restitution as an independent source of liability based on unjust enrichment. But that is the course the ALI was ready to adopt, if it had only been able to persuade its chosen Reporter for Remedies to take on the job.The contours of restitution have been shaped in important ways by the accidents of ALI administration. The Reporters of the 1937 Restatement of Restitution, Warren Seavey and Austin W. Scott of the Harvard Law School, were not the first to identify and describe a principle of liability for unjust enrichment, cutting across the division between law and equity. An even more important Harvard figure, James Barr Ames, had made this discovery fifty years earlier.1 Ames inspired a number of successors, and his unjust enrichment principle could be traced through articles, treatises, and even a few legal opinions. But the Harvard idea, if well known to an elite, came as news to most of the legal profession in 1937. Its prompt and seemingly unhesitating acceptance was surely due in large part to the fact that it carried the imprimatur of the American Law Institute. Lawyers thus encountered the law of unjust enrichment for the first time, not as a matter of academic speculation (however enlightened), but as a full-fledged division of the freshly restated American law, sharing a library shelf and a uniform presentation with Contracts, Torts, Property, and Trusts. No one in those days was accusing the ALI of dangerous innovation; if they said restitution was a subject, lawyers were prepared to take their word for it.By far the boldest feature of the 1937 Restatement was one that today might easily pass unnoticed. This was the administrative decision to combine the legal and equitable sides of restitution - the preexisting law of quasi-contracts and of constructive trusts - within a single Restatement project and a single volume. The fundamental unity of these topics had been the essence of Ames's original insight, and today it is the distinction rather than the combination that generally has to be explained; but their joint presentation in 1937 was a major step.The organizational breakthrough that gave the world the modern law of restitution - the decision to restate law and equity together - had not been the ALI's original plan, and the wisdom of doing it this way was not immediately apparent. …