Friday, July 8, 2011
Doug Rendleman (W&L) has posted to SSRN Measurement of Restitution: Coordinating Restitution with Compensatory Damages and Punitive Damages. The abstract provides:
Courts apply compensatory damages, restitution, and punitive damages to formulate litigants’ civil remedies. The frequently contested policy justifications for these three remedies are often hazy and uncertain. The transitions between the three remedies are disputed. Lawyers and courts often misunderstand restitution with deleterious consequences for litigants and the administration of justice.
The American Law Institute’s completion of the Restatement (Third) of Restitution and Unjust Enrichment provides the legal profession with opportunities to dispel this haze and to clarify the distinctions. In addition to obviating defendants’ unjust enrichment, restitution with its measurement choices provides a midpoint on a continuum of the three remedies. Restitution’s policy justifications often overlap with compensatory damages at one end of the continuum and with punitive damages at the other.
This modest effort identifies wiser choices to aid lawyers’ and courts’ remedial decisions and seeks to improve the courts’ administration of litigants’ civil remedies. Focusing on the Restatement’s measurement choices for restitution, it explains familiar examples to analyze the choices between compensatory damages, restitution, and punitive damages and to locate the transitions between them.