Legal Epistemology in the Restatement (Third) of Restitution and Unjust Enrichment

INTRODUCTIONThe publication of the Restatement (Third) of Restitution and Unjust Enrichment1 (R3RUE) is an important accomplishment on at least two levels. Its contribution, actual and potential, to the development of the law is beyond question. Carefully crafted over many years, it is a work that will shape our understanding of restitution in the United States and beyond. Equally important is the legal epistemology adopted in R3RUE. The strange accident of the advent of American legal realism had a number of effects.2 the law of unjust enrichment, even more so than in other fields of private law, it has been associated with the decline of respect in the United States for doctrinal scholarship.3 However, like most publications in the Restatement project, R3RUE stands against this rejection of doctrine. It situates itself in the interpretive tradition that has been a hallmark of the development, not only of the common law, but of the civil law as well.In this text, I have three goals. The first is to explore some of the characteristics of the traditional Western epistemology of private law, in order to understand its default position of respect for elaborated doctrine. This effort, which I will undertake in Part I, will allow me to highlight in Part II the differences between the traditional epistemology and other approaches, including those that arose following the downgrading of doctrine in the United States.The second goal, which will be the preoccupation of Part III, will be to assess the approach in R3RUE to the important topic of constructive trusts. My argument will be that in this field, R3RUE is ambivalent. It combines traditional epistemology with, in some respects, the law-skeptical approach that arose in the wake of American legal realism. I will argue that the attempt to draw on these incongruent epistemologies - these different ways of knowing what the law is - leads to tension and inconsistency in the positions taken in R3RUE.The third goal, which I will address in my Conclusion, is to evaluate whether and to what extent this matters. Is there any particular reason why we should adopt a single way of knowing what the law is?I. THE DOCTRINAL VOICE AND THE INTELLECTUAL RESOURCES OF THE LAWThe voice of the Restatement project is the voice of the law as it has been developed. By this, I mean that it is backwards-looking. formulating the numbered provisions of a Restatement, provisions that are called in the language of the American Law Institute, the Reporter primarily looks to past decisions of the courts. The enterprise is a justificatory one: in addition to explanatory comments and illustrations, the Reporter provides notes whose purpose is to show that the black letter of the Restatement reflects the best interpretation of the collected decisions of the courts. The voice, in other words, is the voice of doctrinal law, which is also backwards-looking and justificatory. And the voice of doctrinal law is not that different from the voice of a common-law judge who is called upon to resolve a question of law: the judge, too, looks back to the previous case law and explains, in reasons for judgment, how that case law leads to the decision that has been made.Anyone who works in this doctrinal voice knows that it does not exclude creativity. The most renowned doctrinal jurists, whether judges or professors, are the creative ones. As in many spheres, including the fine arts, creativity can be more impressive exactly because it is constrained in various ways. Doctrinal law is always constrained. One constraint relates to binding authority. Morden J.A. once said, In the absence of binding authority clearly on point it may reasonably be said that the law is what it ought to be,4 a statement which was adopted by the Supreme Court of Canada.5 The Supreme Court of Canada, like other supreme appellate courts, is in the position that no authority is ever binding on it. …

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