Lionel Smith, ‘Common Law and Equity in R3RUE’

One of the most remarked-upon achievements of the first Restatement of the Law of Restitution was the consolidation into a single treatment of all of the law that concerned the Reporters, whether it came from common law or Equity. In the Restatement (Third) of Restitution and Unjust Enrichment, there was initially an even more dramatic idea: to restate the law without any reference to the historical distinction between common law and Equity. In the final product, however, there are several references to the peculiarly Equitable origins of certain juridical solutions to the problems addressed by this Restatement. The goal of this paper is to take a critical look at this evolution in the drafting of R3RUE. Ought the Reporter to have kept to the original idea, which would have perfected, in a sense, the accomplishment of the first Restatement? Or, is there a good reason to continue to distinguish between common law and Equity, even while we know very well that in at least some dimensions, the dichotomy is little more than an accident of history? This paper argues that there are some respects in which common law and Equity remain fundamentally and substantively different. U.S. law has run into difficulties as a consequence of losing sight of this, as for example in the context of the constructive trust. The conclusion is that for the moment, full fusion rests in a state of impossibility. Fusion is achievable; but the road is rockier than most jurists realize. Some of the differences between common law and Equity are profound, and bridging them requires not just translation but also a kind of transliteration. The rewards of such an exercise, however, would be rich. When we can accurately describe and distinguish between the nature of an Equitable interest in property and a common law interest in property, without using those merely jurisdictional labels, we will be ready to comprehend all of private law within a single organizing system.

Smith, Lionel, Common Law and Equity in R3RUE (February 2, 2011). Washington and Lee Law Review, Vol. 68, 2011.

First posted 2011-09-04 08:34:47

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