Unjust Impoverishment: Using Restitution Reasoning in Today's Mortgage Crisis

Content Provider	Semantic Scholar
Author	Linzer, Peter Huffman, Donna L.
Copyright Year	2011
Abstract	Table of ContentsI. Introduction 949II. The Scope of Restitution 950III. Traditional Restitution and Impoverishment 955A. The Unpaid Contractor Cases 955B. The Public Costs of Legal Private Business: Of Cigarettes and Lead 961IV. Unjust Impoverishment Through Wrongful Foreclosure 963V. In Conclusion 967Appendix A [to Linzer and Huffman, Unjust Impoverishment] 968I. IntroductionWe are here today to celebrate, and criticize, the Restatement (Third) of Restitution & Unjust Enrichment (R3RUE), the product of more than ten years' work by its great reporter, Andrew KuIl, assisted by a gilt-edged group of advisors and a serious and hard-working Members' Consultative Group. The product of this work is more than just a worthy successor to the 1937 Restatement of Restitution, which created and has shaped the subject for nearly seventy-five years. Besides Professor KuIl' s careful delineation of the specifics of modern restitution law, his drafts continue to give us an opportunity to consider the scope and rationale for restitution. We wish to examine restitution's scope, and after examining how it has already been used, to apply an aggressive use of it to the current mortgage crisis.II. The Scope of RestitutionThe scope of restitution has always been a topic of interest and controversy, and our friend, Professor Doug Rendleman, one of the most perceptive observers of remedies in general and restitution in particular, and the catalyst of this conference, has written at least three important articles touching on the question of scope: When Is Enrichment Unjust? Restitution Visits an Onyx Bathroom,1 Quantum Meruit for the Subcontractor: Has Restitution Jumped Off Dawson's Dock} and Common Law Restitution in the Mississippi Tobacco Settlement: Did the Smoke Get In Their Eyes?3 We would like to use his thinking as a jumping off point, a metaphor that he will surely think apt in light of his reference to Dawson's Dock.Professor Rendleman discusses "broad" and "narrow" restitution,4 broad restitution being an unbounded system based on fairness, supported by Lord Mansfield5 and modern giants such as George Palmer,6 Goff and Jones,7 and Dan Dobbs,8 while narrow restitution requires in Doug's quotation from John P. Dawson, '"some specific ground' for restitution, like 'fraud, mistake, compulsion, undue influence, impossibility or frustration, sometimes substantial breach, and certain kinds of illegality.'"9 Narrow restitution has many supporters,10 including, especially in its first draft, the R3RUE itself.11 The obvious problem with broad restitution is that it seems boundless, while narrow restitution seems to add little to the existing substantive law of contract, tort and property.Professor Rendleman proposes a middle ground: "[A] judge or a jury ought to emphasize the question: Will granting the plaintiff restitution undermine a policy of property, contract, tort or substantive law?"12 We do not think that this is an adequate test, and want to focus on a factor that is not rejected by the Restatement, but which is certainly minimized: The impoverishment of the plaintiff.The addition of the words "unjust enrichment" to the title of the R3RUE emphasizes the centrality of enrichment, as does the text of Section 1: "A person who is unjustly enriched at the expense of another is subject to liability in restitution." 13 A Comment continues, "[restitution is concerned with the receipt of benefits that yield a measurable increase in the recipient's wealth. …
Starting Page	949
Ending Page	949
Page Count	1
File Format	PDF HTM / HTML
Volume Number	68
Alternate Webpage(s)	http://law2.wlu.edu/deptimages/law%20review/68-3n.6Linzer%20Huffman.pdf
Alternate Webpage(s)	https://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?article=3317&context=wlulr
Language	English
Access Restriction	Open
Content Type	Text
Resource Type	Article