RATIONALIZING RESTITUTION

Significant uncertainty shrouds the modern law of restitution. Few Ame rican lawyers, judges, or law professors are familiar with even the st andard propositions of the doctrine, and the few who are continue to d isagree about elementary issues of definition. This Article argues tha t the law of restitution will remain inaccessible until these issues a re resolved; and that the way to resolve them is to follow the basic p roposition of modern restitution to its logical conclusion. This means describing the subject exclusively in terms of liability for unjust e nrichment. To this end, the author argues (i) that the supposed instan ces of ''restitution without enrichment,'' described in a celebrated a rticle by John Dawson, are not in fact instances of restitution at all ; (ii) that ''specific restitution'' bears no useful relation to the l aw of unjust enrichment; and (iii) that restitution should not be view ed as a remedial option, because it constitutes an independent basis o f liability (comparable to contract and tort) having characteristic re medies of its own. In a concluding section the author indicates some a reas of the law, notably the law governing mistaken payments, in which a ''rationalized'' law of restitution might change outcomes in litiga ted cases.