
Contents
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A. The Foundations of Unjust Enrichment A. The Foundations of Unjust Enrichment
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1. Restitution for Unjust Enrichment and Disgorgement for Wrongdoing 1. Restitution for Unjust Enrichment and Disgorgement for Wrongdoing
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(a) Reversing unwarranted transfers (a) Reversing unwarranted transfers
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(b) Stripping wrongful gains (b) Stripping wrongful gains
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2. Philosophical Perspectives 2. Philosophical Perspectives
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(a) Aristotelian conceptions of justice (a) Aristotelian conceptions of justice
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(b) Restitution for unjust enrichment (b) Restitution for unjust enrichment
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(c) Disgorgement for wrongdoing (c) Disgorgement for wrongdoing
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3. Core Elements of Corrective Justice and Unjust Enrichment 3. Core Elements of Corrective Justice and Unjust Enrichment
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B. The Limits of Unjust Enrichment B. The Limits of Unjust Enrichment
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1. English Law 1. English Law
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2. Canadian Law 2. Canadian Law
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(a) Cohabitational property disputes (a) Cohabitational property disputes
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(b) Chinese head tax (b) Chinese head tax
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3. American Law 3. American Law
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(a) Tobacco litigation (a) Tobacco litigation
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(b) Holocaust litigation (b) Holocaust litigation
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(c) Slavery reparations (c) Slavery reparations
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(d) A realist's riposte: Professor Dagan's Law of Restitution (d) A realist's riposte: Professor Dagan's Law of Restitution
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C. Conclusion C. Conclusion
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5 Resisting Temptations to ‘Justice’
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Published:March 2009
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Abstract
This chapter examines the danger that, without proper appreciation of the underlying philosophical foundations of the subject, courts are apt to use the action in unjust enrichment to serve individualized notions of ‘justice’. It begins with an explanation of the principle of corrective justice that generally is thought to underlie the law of unjust enrichment. It then examines the extent to which courts in different jurisdictions have adhered to those foundations. First, because English courts have remained close to the principle of corrective justice, they seldom have resolved restitutionary claims by reference to intuitive notions of fairness or justice. Second, because Canadian courts occasionally have lost sight of the principle of corrective justice, they occasionally view cases of unjust enrichment as opportunities for achieving ‘equitable’ results on the basis of judicial discretion. Third, because of the effects of the American realist movement, American courts frequently have used the principle of unjust enrichment as a means of securing largely political goals of ‘social justice’.
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