What is unjust enrichment? is it comedy?

Charlie Webb poses the provocative question “What is Unjust Enrichment?” in the title of an important piece just published in (2009) 29 (2) Oxford Journal of Legal Studies 215-243. His basic point is that whilst the existence of a law of Restitution concerned with reversing unjust enrichments is largely uncontroversial, the ability of unjust enrichment to account for all restitutionary claims is far less so, and he therefore addresses the question of what role a conception of unjust enrichment can and should play in presenting and justifying the modern law of Restitution. Moreover, an excellent Irish perspective on this question is provided by Laura FarrellThe Future of the Law of Restitution in Ireland – the Unjust Question(2008) 15(10) Commercial Law Practitioner 239.

Small image of a cauliflower, via WikipediaWhen I finished Webb’s piece, I went on to read some of the essays in The Fifth Remedies Discussion Forum published in 42 (1) Loyola of Los Angeles Law Review (2008) (currently here, but soon probably here), and whilst I was on the website, I took the opportunity to go back and look at the previous Remedies Forum also hosted by that Review. That earlier one was largely devoted to the Law of Restitution, and one of its themes was was that this subject should find a more prominent home in law school curricula, a sentiment with which I entirely agree. For example, Michael Kelly argued (pdf) that more of it should be taught in compulsory Contract Law courses; whilst David Partlett and Russell Weaver invoked Tolkien’s Lord of the Rings (books | movies) to suggest that the “ancient wisdom” of Restitution has been lost among US scholars and ought to be restored to its rightful place at the centre of legal learning.

However, the most entertaining piece in this vein is Elaine ShobenSpinning Restitution: From Cauliflower to Coconut” 36 Loyola LA L Rev 1027 (2003) (pdf). Here’s the abstract:

Teaching restitution is a challenge at many levels, but the first problem is getting students to take the course. This Article presents a tongue-in-cheek method for advertising the subject to students in order to convince them of the value of learning restitution theory while still in school. It is a humorous commentary on the problem in legal education of making a dull and difficult subject like restitution appealing to modern students.

Small image of a coconut, via WikipediaHer article begins:

Restitution needs some public relations work. The advent of the sexy class phenomenon in American law schools is bad news for a subject like Restitution. … How can Restitution … compete against more inviting courses like Sports Law … Law in the Age of Technology, and Law and Literature …[?]

This is entirely true, and the phenomenon is not limited to American law schools. With this competition, the problem is that

… students fill their plates too high with the palate-pleasers at the course buffet and they forget the vegetables—those courses that provide the basic fiber of the legal profession. Restitution, of course, is a vegetable. And a tough one at that. Rather like cauliflower.

Shoben hastens to reassure us that she likes cauliflower, and so do I, but then we both like Restitution as well. Indeed, Webb’s piece is probably a good example of the kind of important analysis that students find tough, like cauliflower. So Shoben identifies two ways to make the students more likely to eat their greens: advertise Restitution as the salvation of lawyers in a tough spot, much as the coconut is for the Tom Hanks character is the movie Cast Away, or present Restitution as fun and inherently zany because many of the famous cases in the subject involve bizarre and amusing fact situations. Now you know why cauliflowers and coconuts feature in the title of her piece, and if you want some more tangentially academic distraction relating to coconuts, then check this post out.

Anyway, as between the coconuts and the just plain nuts, Shoben plumps for the second approach, and presents some amusing strategies to bolster it. And this got me wondering: what are the fun and zany Restitution cases with bizarre and amusing fact situations from Ireland, the UK, Canada, Australia and New Zealand? If you’re a Restitution lawyer reading this (and there must be some, surely? Steve? Eagle?), why not make a suggestion (or several) in the comments. According as cases occur to me, I’ll do the same. And pretty soon we may have some non-US cases to parallel Shoben’s US list on which we can rely in our sales pitch for new improved comic, wacky and entertaining Restitution courses.

In the meantime, Webb’s piece is very important in helping to understand the nature of the Restitution, whilst Shoben’s piece is it an enjoyable and engaging read for anyone who teaches the subject. They are both, in their different ways, essential reading.

7 Comments

Add a Comment

Your email address will not be published. Required fields are marked *