Rethinking Restitution: Will Unjust Enrichment Lawyers Join In?

IF 1.4 4区社会学 Q1 LAW

Law Probability & Risk Pub Date : 2020-07-17 DOI:10.2139/ssrn.3654118

Jonathan Silver

引用次数: 0

Abstract

In a recent article Lionel Smith has argued that there is no normative unity in most restitutionary claims that are currently thought of as being part of the law of unjust enrichment. This leads him to conclude that the generally accepted test for unjust enrichment liability is inapplicable with respect to those claims. This article looks at Smith’s arguments and at two early responses to them from unjust enrichment lawyers and concludes that, whatever the rights and wrongs of Smith’s position, these responses do not engage with Smith on his own ground, and, to that extent, do nothing to counter a new wave of increasing academic scepticism concerning the very existence of the legal category we call unjust enrichment.

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重新思考赔偿:不当得利律师会加入吗?

在最近的一篇文章中，莱昂内尔·史密斯(Lionel Smith)认为，目前被认为是不当得利法的一部分的大多数赔偿要求没有规范的统一性。这使他得出结论，普遍接受的不当致富责任检验不适用于这些索赔。本文研究了史密斯的论点，以及不当得利律师对这些论点的两种早期回应，并得出结论:无论史密斯的立场是对是错，这些回应都与史密斯自己的立场不一致，而且，在这种程度上，无助于反击学术界对我们称之为不当得利的法律类别的存在日益增长的新浪潮。

本文章由计算机程序翻译，如有差异，请以英文原文为准。

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来源期刊

Law Probability & Risk MATHEMATICSSTATISTICS & PROBABILITY&-STATISTICS & PROBABILITY

CiteScore

2.10

自引率

28.60%

发文量

期刊介绍： Law, Probability & Risk is a fully refereed journal which publishes papers dealing with topics on the interface of law and probabilistic reasoning. These are interpreted broadly to include aspects relevant to the interpretation of scientific evidence, the assessment of uncertainty and the assessment of risk. The readership includes academic lawyers, mathematicians, statisticians and social scientists with interests in quantitative reasoning. The primary objective of the journal is to cover issues in law, which have a scientific element, with an emphasis on statistical and probabilistic issues and the assessment of risk. Examples of topics which may be covered include communications law, computers and the law, environmental law, law and medicine, regulatory law for science and technology, identification problems (such as DNA but including other materials), sampling issues (drugs, computer pornography, fraud), offender profiling, credit scoring, risk assessment, the role of statistics and probability in drafting legislation, the assessment of competing theories of evidence (possibly with a view to forming an optimal combination of them). In addition, a whole new area is emerging in the application of computers to medicine and other safety-critical areas. New legislation is required to define the responsibility of computer experts who develop software for tackling these safety-critical problems.