Is Formalism Inevitable?

Through his new book 'The Law and Ethics of Restitution' (hereafter LER), Hanoch Dagan hopes to help revive American interest in a subject that now receives considerably more scholarly attention in England and the Commonwealth than in the United States (328-9). To do this, he proposes a distinct approach to the study of the law of restitution. Contemporary scholarship about restitution is often formalistic: it tends to examine restitution independently of the social context in which the law exists, and to assume that it is internally intelligible. Against this backdrop, Dagan promises what he describes as a legal realist perspective on restitution. As he informs us early on, 'The Law and Ethics of Restitution' will 'largely follow[] [in] the footsteps of mainstream legal realism, represented by the work of Karl Llewellyn and Felix Cohen' (3-4). Instead of approaching restitution law as an autonomous realm, the book will examine the law instrumentally, as an explicit embodiment of three 'policies and values' (4). Moreover, it will do so by considering the law in its social context, just as legal realists advocated.