May 17, 2011
Should Law Schools Teach Restitution?
Posted by Gordon Smith

Last year the ALI adopted Restatement Third, Restitution and Unjust Enrichment. This year there is a session at the ALI Annual Meeting marketing the idea of restitution to the members, using the Bernie Madoff and Alan Stanford cases as examples of missed opportunities for restitution.

Unfortunately, we don't teach restitution systematically anymore. It is scattered throughout the curriculum. And the thesis of this ALI session is that our collective ignorance of restitution is having a negative effect on the implementation of justice and the development of law.

Having written a bit in this area, I agree. The law of restitution is vast, covering (generally speaking) fraud, mistake, and breach of confidence (fiduciary duty), and the principles are fundamental to our understanding of many areas of law. Some of this law has been codified in myriad statutes, but much remains in the common law.

It's time to bring restitution back to the classroom.

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