Restitution and the Production of Legal Doctrine

Abstract

This Article examines the relationship between legal doctrine and remedial law through the lens of restitution, arguing that differences between American and English restitution jurisprudence stem less from divergent substantive rules than from competing assumptions about the roles of law, facts, rights, and judicial discretion. The Article contends that the development of legal doctrine is closely linked to whether a legal system conceptualizes a dispute as a question of law subject to appellate elaboration or as a fact-intensive matter committed to broad trial-court discretion. Using restitution and constructive trust doctrine as a comparative case study, the Article traces how English courts and scholars have developed a sophisticated body of restitutionary doctrine by treating questions of tracing, unjust enrichment, property rights, and equitable interests as legal issues requiring principled and systematic resolution. By contrast, American courts frequently characterize analogous disputes as matters of equity, remedial discretion, procedural administration, or jurisdiction, thereby reducing opportunities for the development of detailed substantive doctrine. The Article explores this divergence through analyses of tax restitution, tracing claims, constructive trusts, fraud recoveries, and ultra vires government contracts, demonstrating that English courts typically justify remedies by reference to underlying legal rights, whereas American courts are more likely to focus on equitable balancing and standards of review. The Article further argues that debates over constructive trusts illustrate broader differences in how the two legal traditions understand the relationship between rights and remedies. Ultimately, the Article concludes that the relative underdevelopment of restitution law in the United States reflects a broader shift in modern American jurisprudence away from private-law conceptual analysis and toward procedural, institutional, and discretionary frameworks for resolving disputes.[This abstract was written by Microsoft Copilot, a generative artificial intelligence.]