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« Genius and Success: Inspiration or Perspiration? | Main | Bad Sex Award (Dean) »

November 25, 2008


I admire Atwood's writings though I have read only a handful of her books. I will definitely check this one out.

Indeed, most of life's energy and resources are expended in paying our debts and balancing the ledger as we trudge along.

I have yet to read one of her books, another glaring lapse in my reading career. I'm listening to the first lecture, but haphazardly. I probably owe the text more attention. (Get the joke there?) In fact, she broaches a legal topic I've been pondering for some time. In the UK and the Commonwealth for the last couple of decades, the doctrinal arena of unjust enrichment has been excitedly debated, a cause for scholars and jurists alike, who seek to impose order or at least confront its nuances and disarray. Ironically, in the US, where the area was, for lack of a better word, invented (in the early 1930s with the publication of a professionally sanctioned "Restatement" designed to give a systematic arrangement to the rules applied by courts across the country), there has been little interest. An effort to publish a second edition of the Restatement flopped. The third edition has been an ongoing effort since 1997, and it's expected to take on the order of twenty years to complete. This is an amazing effort in view of the fact that the topic is, as a professor with whom I work noted when I expressed my interest in it to him, decidedly unsexy. But unjust enrichment is, to my mind, largely about the fairness that Atwood essays. Therefore, it is a prime mover or first principle of the law as a whole. Yet its current disposition in the US, at least, is that of a quirky, marginalized corpus of rules invited only occasionally to the table with its more robust siblings, contract and tort.

Ruchira: After skimming through a yawn-inducing 'Twilight', Atwood's irony and broad swathes moving from one area to another while discussing debt was hugely enjoyable. I think I like the written version even better than the audio, largely because the way I read in my head doesn't clash with Atwood's careful emphases in the spoken version. It lends itself to rereading particularly delicious passages.

Dean: Not being familiar with Restatements and Restitution, it took me a few tries to find what you were alluding to. Now, you do owe me a cyber-cuppa to de-addle my brain. Any opinions as to why American jurisprudence gives less importance to unjust enrichment and restitution as opposed to their British and other Commonwealth counterparts? Is it just the 'New World sets its own rules' schtick?

Funny, Sujatha, I read an article addressing your question just a couple weeks ago. And, yeah, you're pretty much on the money (pun!). I can't find the article just now, but it noted that the heyday of American legal realism has by no means waned, where in the UK, the Commonwealth, and Europe, grand principles of natural law continue to inform jurisprudence. Consequently, we shudder at the prospect of allowing judges to declare circumstances "unjust" without plenty of more or less rigid and precise rules. Bold determinations of injustice arise historically out of the exercise of equity jurisprudence, while stricter rules belong in the parallel legal regime. The two regimes are nominally fused, and the result has been a more rule-bound practice of equity in the US. Meanwhile, many cases identified as presenting potential unjust enrichment claims end up turning on contract or tort or property rules, hence the irrelevance of the marginalized doctrines. Payback, in other words, is predicated on some principle tangential to mere fairness: consent in contract, wrongdoing in tort, dominion in property, for instance.

My goodness, Dean, I think you now owe Sujatha a cyber-barrel! The points you raise are interesting and sensible, but if you had purposefully employed legalese to obfuscate, I don't think you could have provided a more head-thumpingly dense response to Sujatha's question. (I say that as someone who applied to law and graduate school with the misguided plan of completing a J.D.-Ph.d in law and history.)

At the very least, you might link to wikipedia entries that define and distinguish courts of equity (or chancery) and common law.

A definition of legal realism would probably also be helpful:

Tangentially, the ability to discuss legal topics in a way that's clear and engaging to a general public, and yet doesn't do violence to meaning in compressing five-prong tests and translating legally-defined terms, is a balancing act I've always admired. Dahlia Lithwick at Slate is probably my favorite legal writer in that regard. Notwithstanding the consensus trashing Malcolm Gladwell in the comments to Ruchira's recent post, I admire him for a similar ability in sociology or psychology, and Paul Krugman for a similar ability in economics, whatever people may think about the limitations of the social science they translate.

On a second or third reading, I can see how my comment would strike a reader as dense, although my point was to abbreviate, mostly because I recognize that this post isn't about unjust enrichment (or restitution or equity...). I figure Sujatha's real smart and we can dispense with links to Wikipedia, since that's what Google's for. A suitable summing up of legal realism I might have included appears in the article thus: "Jerome Frank is famously credited with the idea that a judicial decision might be determined by what the judge had for breakfast." Its counterpart in the entry on Chancery is Selden's earlier bit of table talk to the effect that "equity varies with the length of the chancellor's foot."

But hey, I attended a scholarly roundtable on restitution last year around this time, where I was sorely out of place, being the only groupie among the dozen or so assembled, which included no less a dignitary than the Reporter for the current Restatement project, Andrew Kull. It was a terrific experience, but at one point I had to confess that I had gone to law school puzzled by this notion of "equity" about which I'd read a remark or two in, I think, Harold Berman's Law and Revolution, that I had taken English Legal History (and had done pretty well, remarkably), that I had since read a good bit about the concept...but that I remain utterly confused by it. To this day, I'll add.

I worry more than a little, though, about writers who demonstrate a facility for simplifying difficult topics. And I'm not the only one so concerned. In a post today on his blog, Berkeley economics professor Brad DeLong published his talking points regarding the Obama designation of Christina Romer as a candidate for CEA. He wrote, "Very good at making people believe that relatively complicated ideas about economics are simple facts of nature." The comments went wild (relatively speaking, for economists), understandably.

All that aside, I think Sujatha's original post and Atwood's book and lectures really do provide a helpful angle for thinking about fairness and obligation. And I'll be happy to pick up the tab for a non-virtual pint of your choice, should the occasion arise.


Since tone gets lost over the internet, I should clarify that mine was lighthearted, not one of disparagement.

Still, google (and wikipedia) only help if you know the terms and framework, which are not always obvious in law, since it employs so many terms with multiple meanings, e.g. "legal" in opposition to "equitable," versus "legal" in opposition to "uncodified." It's as condescending to assume that if a person's real smart, she must know those terms, as it is to assume that she's not real smart if she does not.

I worry that technocratic and academic jargon, while sometimes providing a useful framework for discussion within a discipline, can also stifle public discussion of topics that should be of broader interest. I don't know if unjust enrichment is a topic that needs to be batted about the agora, but certainly the place of appeals to fairness in the law is.

Obviously, this is far outside the framework of the original, interesting post-- aren't so many discussions in Comments sections? I didn't mean to disparage that post, or the side conversation, with a side conversation to the side conversation, I was just trying to provide some assistance, superfluous though it may well be.

I read Wilderness Tips and Cats Eye, way back when, and liked both. Perhaps I'll give Payback a try.

No disparagement taken, assumed, or, for that matter, intended. But I genuinely figured a simple Google search--say: equity legal--would resolve questions. Indeed, the first and third results are pretty good for purposes of this detour.

But Atwood? Not one word have I read in all these years, despite having friends who have sung her praises. On the other hand, after today, I have heard nearly an hour of her reading her own text. I'll return to subsequent lectures, and I've requested a copy of Payback for our collection.

Back to my afternoon cuppa.

Anna, I wasn't trashing Gladwell as a writer, only his painstaking correlation between success and genius. I enjoy reading him for precisely the reasons you point out. Similarly I used to enjoy reading Desmond Morris' popular zoology and George Gamow's physics. All have the facility with language, power to persuade and a sense of fun which make the densely technical/ theoretical intelligible to the uninitiated. I also like Lithwick.

And yes, I agree that too many interesting discussions are buried in the comments section. After all, that's from where I recruited Dean. What can I offer to bring you two (Dean and Anna) to come to the front page more often? Too much cyber-coffee has already been consumed - choose some other beverage.

Thanks for the links, Anna.They helped clear up some of the murky fumes that were pervading the air as I tried to decipher Dean's response. I had given up in short order, intending to come back this morning and reparse the sentences armed with my Google/Wiki search box, but you saved me the trouble by picking out the specific terms and links.

Dean: that was an interesting link that you provided in the post re: simplification of complex things. Do they always bash each other like this over every economics appointee? I'm sure the place will be a firestorm today as more appointments are announced. Not that I know much about Christina Romer and her approach to economics, though one of the comments was quite a bit more illuminating than the ones bashing the choice.
Coming back to the oversimplification, Atwood's approach to the complexities of debt and payback may verge on that, but she never pretends that it is anything more than a sort of free-associative musing round on the nature of debt in relation to her field of expertise- the literary field and the novelist's craft and observations of her time and society.

Ruchira: Having not read Gladwell (still waiting to get my hands on Blink, whose subject matter interests me more), I would be glad to change my impression of him from that not-too sparkly review of his book that you mentioned in the post. But I suspect it will bias my response to his work, so it will be that tiny bit harder for me to feel impressed at any insights he comes up with.


Writing style and "substance" are two entirely different matters. Working backwards to neatly correlate cause and effect is sometimes logical, in epidemiological studies for example. It is much more "iffy" when applied to pop psychology / sociology which Gladwell does repeatedly. So you will be right to be skeptical when you approach his works. But you can still enjoy them without agreeing.

This review of Outliers that Dean has linked to in the bad sex post, pretty much repeats our own "Duh" responses to Gladwell's conclusions regarding nature-nurture-success-luck. We were not being unnecessarily dismissive.

A more sympathetic, yet back-handed, review of Gladwell is here. Not coincidentally, the reviewer finds in Gladwell "an unusual gift for making the complex seem simple." "Outlier," of course, is no neologism. It helps to consider its meaning in the context of statistics, where it stands for an observed value so off the charts that it ought not to be taken into account.

I want to take my complaint against "making the complex seem simple" even further. I'm not only wary of it, I dislike it entirely. A simple text has no texture, and for me there's almost no other point in reading.

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