A Commonwealth of Perspective on Restitutionary Disgorgement for Breach of Contract
Bibliographic record
Abstract
The muse of restitution enraptures the world's legal scholars. Yet America resists her lure. This article focuses on an American black-letter law endeavor to follow the Commonwealth's lead on restitutionary disgorgement as a remedy for contractual breach - Section 39 of the pending Restatement (Third) of Restitution and Unjust Enrichment. England's Attorney General v. Blake opens the door to the remedy. America's Restatement Section 39 steps through the door. It does so with much timidity despite its bold title, Profit Derived from Opportunistic Breach. Though narrowly bounded, Section 39's sweeping foundation is in tension with the American Holmesian model of contractual choice and efficient breach theory. This author's other scholarship casts the Restatement's recognition of a restitutionary disgorgement remedy for opportunistic breach as potentially revolutionary for contract law because the remedy focuses on defendant's mindset and gains rather than plaintiff's loss. Further, the remedy seeks to deter if not punish wrongdoing. A well-developed, canon of scholarship and precedent on restitutionary disgorgement exists in Australia, Canada, Great Britain, Ireland, and New Zealand. The Commonwealth experience should guide America's adoption of restitutionary disgorgement for contractual breach. America should embrace restitution's riddles. We should call restitution to our imagination. The Restatement proposal for restitutionary disgorgement advances unjust enrichment theory and merits serious scholarly attention, praise, and critique. It will admirably extend the stable of alternative remedies for contract plaintiffs. But, let's be honest about its shortcomings as drafted and its underlying morality-infused rationale. Then, we can glean the deeper lessons from the Commonwealth's lead and appreciate the consequences of our new path.
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How this classification was reachedexpand
Full frame distilled prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. Learned from the 10,348 direct Codex labels and 10,348 direct Gemma labels. Candidate is the union of thresholded teacher heads; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels or direct frontier model labels.
Codex and Gemma teacher scores by category
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.001 | 0.000 |
| Meta-epidemiology (narrow) | 0.000 | 0.000 |
| Meta-epidemiology (broad) | 0.000 | 0.000 |
| Bibliometrics | 0.000 | 0.000 |
| Science and technology studies | 0.001 | 0.000 |
| Scholarly communication | 0.000 | 0.000 |
| Open science | 0.000 | 0.000 |
| Research integrity | 0.000 | 0.000 |
| Insufficient payload (model declined to judge) | 0.000 | 0.000 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one teacher head, not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".