Private law, public right, and the law of unjust enrichment

Abstract

ABSTRACT Unjust enrichment continues to fascinate and frustrate. While it is clear that unjust enrichment is a form of private law liability distinct from that found in property, contract, or tort, it remains stubbornly difficult to articulate its underlying normative basis. In this paper I suggest that some headway can be made on this problem by appealing to a distinction between principles of private right and principles of public right. Relying on Ernest Weinrib’s helpful development of this interesting Kantian idea I argue that the law of unjust enrichment may very well manifest principles reflective of public right’s requirement of systematicity. On this view unjust enrichment provides courts with supplemental decision-making principles that permit the suspension of valid principles of private law while leaving the underlying logic of those principles intact.