By Hanoch Dagan
Dagan's publication presents a dynamic and lots more and plenty wanted account of the yank legislation of restitution. The ebook reports the prevailing doctrine, together with the impending (third) Restatement, utilizing a moral viewpoint to reveal and severely learn the normative underpinnings of restitution's middle different types. the writer additionally discusses one of the most arguable concerns within the zone, akin to cohabitation, wrong tax funds, and the position of confident trusts as trumps in financial disaster. He argues that the concept that of unjust enrichment isn't really an autonomous cause of restitution yet, fairly, serves as a unfastened framework, structuring the contextual program of commitments to autonomy, software, and neighborhood in occasions the place both the reason for motion or the degree of restoration is benefit-based. through integrating doctrinal and moral analyses of restitution around the spectrum of restitution contexts, the writer deals major and provocative insights on present legislation in addition to attainable reforms.
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Additional resources for Law and ethics restitution
Kull, supra note 7, at 1226. For a recent articulation of Birks’ scheme (which includes ﬁve, rather than four, steps), see Birks, Unjust Enrichment, supra note 49. , Burrows, supra note 9, at 15. , Sherwin, supra note 8, at 2109–11. Contra Hedley, supra note 60, at 219. 28 the law and ethics of restitution question each restitutionary category raises. At times, such an analysis will reveal important differences between restitutionary categories. The signiﬁcant diversity apparent among the various restitutionary paradigms requires acknowledging, rather than suppressing, the important normative – and thus doctrinal – heterogeneity of the ﬁeld.
M. , 1993). Another type of weak discretion – where an ofﬁcial “has ﬁnal authority to make a decision and cannot be reviewed and reversed by any other ofﬁcial” – is irrelevant for my purposes. Ronald Dworkin, Taking Rights Seriously 31–33, 69–71 (1977). 16 the law and ethics of restitution the context of adjudication) even strong discretion implies, as Dworkin admits, a duty to decide fairly and rationally. Instead of a dichotomy, it is more accurate to think of a spectrum which ranges from simple factual judgment to wide freedom of choice.
134 (2000). On the power dimension of adjudication, see Robert Cover, Violence and the Word, in Narrative, Violence, and the Law 203 (Martha Minow et al. , 1992). On the dialectical relation between law’s coercion and its nature as a justiﬁcatory practice, see Dworkin, supra note 13, at 261–62; Karl N. J. 1355, 1381–86 (1940). For other views as to the relationship between law’s coercion and its normativity – reductive, additive, and disjunctive – see generally Meir Dan-Cohen, In Defense of Deﬁance, 23 Phil.