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2 of 4 people found the following review helpful
5.0 out of 5 stars Great overview., February 17, 2009
This review is from: The Law and Ethics of Restitution (Hardcover)
I highly recommend this little book of the least understood subject amongst American lawyers. Lawyers are enculturated to cite precedent for establishing arguments for their clients. Lawyers essentially commit the logical fallacy of "arguing from authority" which is denominated by the innocuous term "stare decisis." Essentially, lawyers cite cases or precedent to show that an appellate court ruled in such and such a way on a similar fact pattern and should, for purposes of consistency, established judge made public policy and constitutional equal protection rule the same way for his client's case. Thus, although lawyers argue by analogy, they ultimately relie on arguing from authority: arguing that their clients case is, for the most part, or with regard to relevant points, is the mirror image of a case that involved a ruling that favors their client. However, restitution is fundamentally "doctrinal," not precedential. As in equity, you don't cite cases for precedent or for authority. Instead, if you cite cases at all, you cite them for useful clarifications of doctrine. Indeed, as in conflict of laws, you cite quite a bit of legal scholarship. The author should have made it clear that "unjust enrichment" and "resitution" are synonyms. Moreover, he failed to distinguish "remedies" from the "substantive." Substantive means establishing that somebody was enriched, and that that enrichment was unjust. The latter predicate is essential without which your client has no case. The remedial element reduces to two: constructive trust (for equitable remedies) or quasi-contract (for "money" or legal remedies). The book also seems shallow with respect to its understanding of the moral foundation for restitution. Unless one understands Christian ethics, one is limited in their understanding of restitution. Perhaps such a person should read the Restatement First of Restitution for such an understanding or Blackstone's commentaries. In spite of these shortcomings, this book has lots of useful detailed data with regard to applying restitution to your client's case.
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The Law and Ethics of Restitution
The Law and Ethics of Restitution by Ḥanokh Dagan (Hardcover - September 13, 2004)
$145.00 $136.37
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