BOOK REVIEW: RESTITUTION REVISITED CRAIG ESTL1NBAUM* A review of RESTITUTION: CIVIL ENRICHMENT, By: Ward Famsworth.**
LIABILITY
FOR
UNJUST
203
I.
IN TROD UCTION ...............................................................................
II. III. IV.
RESTITUTION AS A STAND-ALONE REMEDY: BACKGROUND ........ 204 FARNSWORTH'S FOUR FAMILIES OF RESTITUTION ........................ 206 RESTITUTION AS AN ALTERNATIVE REMEDY FOR BREACH OF C ON TRA CT ...................................................................................... 2 10 RESTITUTION REMEDIES ................................................................ 212 C ON CLU SION .................................................................................. 212
V.
V I.
I.
INTRODUCTION
The term "restitution" has many meanings to American lawyers. Restitution can mean the money ordered through criminal proceedings to be
paid by an offender to a victim for the harm caused by the offender's criminal act.' Restitution also describes an interest protected by damages for civil wrongs committed, such as in contract 2 or tort. 3 In these two versions, restitution represents payment made in compensation for a
* Judge, 130th Judicial District Court of Texas and Adjunct Professor of Law, South Texas College of Law. J.D., South Texas College of Law; B.A. and M.Agr., Texas A&M University. ** Dean and John Jeffers Research Chair in Law, University of Texas School of Law. 1. E.g., TEX. CODE CRIM. PROC. ANN. art. 42.037 (West Supp. 2015) (authorizing Texas courts to order offenders to pay restitution under described circumstances). 2.
RESTATEMENT (SECOND) OF CONTRACTS § 344 cmt. d (1981) ("Occasionally a party
chooses [to protect] the restitution interest even though the contract is enforceable because it will give a larger recovery than will enforcement based on either the expectation or reliance interest."); see, e.g., Coon v. Schoeneman, 476 S.W.2d 439, 443-44 (Tex. Civ. App.-Dallas 1972, writ ref d n.r.e.) (holding a plaintiff could recover the alternative remedy of restitution for breach of contract, "even though the contractual compensation was contingent on profits"). 3. E.g., Williams Elecs. Games, Inc. v. Garrity, 366 F.3d 569, 576 (7th Cir. 2004) ("Restitution is available in any intentional-tort case in which the tortfeasor has made a profit that exceeds the victim's damages (if the damages exceed the profit, the plaintiff will prefer to seek damages instead), whether or not the tort involved a breach of fiduciary duty ... ").