Restitution and the Production of Legal Doctrine

Legal doctrine, particularly of the common law or judge-made variety, has long been the source of critique and ridicule. Amid this longstanding debate regarding the nature of judge-made law, the common law of restitution presents an interesting case study. Viewed from the ground up, restitution is the law that governs transactions gone awry on account of payments made or services rendered in honest mistake, outright fraud, or somewhere in between. The recent history of restitution, however, reveals some rather stark differences in the way these cases are conceptualized in England and the United States. Whereas in American legal discourse restitution sits at the backwaters of the academic and judicial consciousness, in recent years, English and Commonwealth courts have expended considerable energy to articulate and develop this substantive area of law.