Volume 36 Number 2 -- Winter 2003

TABLE OF CONTENTS

SYMPOSIA

HONOR THY MOTHER & FATHER: SYMPOSIUM ON THE LEGAL ASPECTS OF ELDER ABUSE

HONOR THY MOTHER AND FATHER: PREVENTING ELDER ABUSE THROUGH EDUCATION AND LITIGATION

by Sande L. Buhai and James W. Gilliam, Jr.

In this Introduction, Professor Sande L. Buhai and James W. Gilliam, Jr. examine the issues of elder abuse discussed during Loyola Law School’s Symposium entitled Honor Thy Mother & Father: Symposium on the Legal Aspects of Elder Abuse. The Symposium and this Article focus on the abuses faced by elders today -- both physical and financial -- and the two approaches in resolving elder abuse -- a non-legal approach using education, social change, and legislation and a legal approach using litigation. The authors provide a roadmap to the various legal and non-legal issues presented by the Symposium panelists to address the serious problem of elder abuse.

GOLDEN AGE IN THE GOLDEN STATE: CONTEMPORARY LEGAL DEVELOPMENTS IN ELDER ABUSE AND NEGLECT

by Seymour Moskowitz

In this Article, Professor Seymour Moskowitz surveys the prevalence and effects of elder abuse, as well as the legal developments occurring both nationally and in California. Professor Moskowitz discusses the quality of care in nursing homes and analyzes administrative regulation and civil litigation against skilled nursing facilities. He then considers tort and other legal remedies available to mistreated seniors, including suits against perpetrators and professionals who fail to report suspected abuse. Finally, Professor Moskowitz focuses on contemporary legal developments involving nursing homes -- criminal background checks, video cameras, retaliatory discharges, and minimum nurse staffing ratios -- as well as other issues relating to society as a whole -- expedited legal process for older persons, behavior-based inheritance rules, and a hearsay exception for elder abuse.

FINANCIAL ABUSE OF THE ELDERLY IN CALIFORNIA

by Jeanne Finberg

In this Article, Jeanne Finberg, a staff attorney at the National Senior Citizens Law Center, provides a brief survey of the common types of financial abuse perpetrated against elderly people in California and highlights the laws and other legal avenues that help protect against elder abuse. The Article focuses on systemic financial abuse or scams generally perpetrated by strangers against elderly people. It especially focuses on living trust and annuity scams, a volume sales scam that is perhaps the most prevalent form of systemic financial abuse. The Article also addresses and describes other scams such as Internet fraud, sweepstakes, and telemarketing fraud, predatory lending, identity theft, and scams on funerals and burial plots.

LASHED TO THE MAST AND CRYING FOR HELP: HOW SELF-LIMITATION OF AUTONOMY CAN PROTECT ELDERS FROM PREDATORY LENDING

by Kurt Eggert

In this Article, Professor Kurt Eggert presents a novel and unique approach to dealing with the ever-increasing problem of predatory lending often targeted at elders. Under Professor Eggert’s proposal, elders would be able to limit their freedom to enter into high-cost loans by signing and recording a document that would limit the terms of any loan secured by the elders’ residence. Professor Eggert proposes that an elder’s decision to restrict their freedom to contract with lenders would actually contribute to, rather than diminish from, the elder’s overall personal autonomy by freeing the elder from abusive predatory lending practices and by aiding elders in rating and selecting loans. In support of his proposal, Professor Eggert examines the effect of self-exclusion laws that are being used in the gaming industry to help problem gamblers who, by electing to self-exclude, choose to limit their freedom to gamble in an effort to free themselves of their destructive addiction to gambling. While more study is needed, it appears that this self-limitation of autonomy can ultimately aid the self-excluder and society and even increase the self-excluder’s overall autonomy. Professor Eggert concludes that a self-limitation system, implemented in the context of elderly lending, would provide much-needed protection to elders who are too often the victims of unscrupulous lending practices.

SECOND REMEDIES DISCUSSION FORUM: RESTITUTION

INTRODUCTION

by David F. Partlett and Russell L. Weaver

MR. GARLAND GOES TO OTTAWA: COMMENTS ON RESTITUTION IN CANADA THROUGH THE LENS OF GARLAND V. CONSUMERS’ GAS

by Jeff Berryman

The consequences of illegality in contract law have been a notoriously difficult problem. In some situations, the common law has allowed an action in restitution to recover any payments made to the defendant through his wrongdoing. In this Article, Professor Jeff Berryman points out the difficulty experienced by the Ontario Court of Appeal in handling a restitution action based on illegality where the defendant, a regulated industry, had been authorized by the regulator to impose a fee that ultimately violated of Canada’s Criminal Code. He suggests that a too early abandonment of orthodox classifications of restitution-based actions in favor of an all-encompassing unjust enrichment principle threatens important nuances concerning the appropriateness of restitution following illegal action.

CHANGE OF POSITION: THE VIEW FROM ENGLAND

by Andrew Burrows

Change of position, as a defense to restitutionary claims founded on unjust enrichment, was only recently accepted as a viable defense in England by the House of Lords in the 1991 case, Lipkin Gorman v. Karpnale Ltd. In this Article, Professor Andrew Burrows examines the slow but steady case law development of the change of position defense in England. Professor Burrows first compares two alternate views of change of position, and then analyzes important issues and relevant case law, which have been instrumental in the on-going definition of the defense. Issues discussed in this Article include the applicability of the defense, the standard of proof to be used, the relevance of fault, and the relationship between change of position and estoppel. Finally, Professor Burrows suggests that these and other issues must be clarified and answered so as to ensure the usefulness and predictability of change of position as a defense.

UNJUST ENRICHMENT, PURSUANCE OF SELF-INTEREST, AND THE LIMITS OF FREE RIDING

by Daniel Friedmann

This Article examines, from a comparative point of view, the difficulties inherent in the principle that grounds restitution on unjust enrichment and some of the problems that arise in its application. These difficulties had, on occasion, led to a rejection of this very principle, while in other instances they led to the imposition of various limitations upon its availability. The Article points out that certain limitations derive from the notion that many benefits are to be attributed to the very existence of society, rather than to the individual who facilitated their gain, and further discusses the rule under which a person who acts in pursuance of self-interest is not entitled to restitution for the incidental benefits conferred upon others. Also discussed are the exceptions to this rule and the grounds upon which these exceptions are based.

CIVILIZING PUNITIVE DAMAGES: LESSONS FROM RESTITUTION

by Gail Heriot

The punitive damages defendant is in a difficult position. He is accorded neither the procedural safeguards ordinarily associated with criminal defendants nor those that ordinarily protect civil defendants. This Article will suggest that punitive damages should be “civilized” (in the sense of making them a better fit into the civil law and its traditions) by equating them with restitution.

IT’S NOT MY JOB!

by Michael B. Kelly

This Article reacts to concern that many students emerge from law school without an adequate understanding of the cause of action for unjust enrichment (or restitution). Professor Michael B. Kelly proposes that Contracts professors cover unjust enrichment during the first year, rather than relying on upper class electives such as Remedies or Restitution. Contracts will expose more students to this cause of action. In addition, unjust enrichment will enhance the students’ grasp of Contracts. Professor Kelly catalogues topics where unjust enrichment seems a natural part of the Contracts material, either as an alternative when contracts are unenforceable (e.g., defenses) or as an essential component of understanding the problems contract law addresses (e.g., material breach).

RESTITUTION IN PUBLIC CONCERN CASES

by Candace Saari Kovacic-Fleischer

This Article compares the use of restitution in Securities Act cases with its use in cases involving dangerous products. Recommendations include bringing some of the analysis from the securities cases into common law restitution and retaining restitution’s breadth to provide a remedy of disgorging unjust enrichment to respond to societal change.

THE SOURCE OF LIABILITY IN INDEMNITY AND CONTRIBUTION

by Andrew Kull

Indemnity and contribution -- shifting or splitting between A and B an obligation to a third person, C -- enforce a substantive obligation of B to A. Professor Andrew Kull’s Article addresses the source of that obligation. B’s liability to A may derive from a contract between them; from a breach of B’s “independent duty” to A; or from the unjust enrichment that arises when A discharges B’s liability to C. But A’s payment to C confers no benefit on B if B had no enforceable liability to C. This gap in the traditional reach of indemnity and contribution conflicts with the modern impulse to allocate liability according to fault. The result in some cases has been the imposition of a liability that has no basis among the accepted grounds of civil obligation in our legal system.

DISGORGEMENT FOR BREACH OF CONTRACT: A COMPARATIVE PERSPECTIVE

by John D. McCamus

Professor John D. McCamus examines the availability of the remedy of disgorgement of profits secured through breach to a victim of breach of contract. The Article discusses the parameters of English law’s recent recognition of the availability of disgorgement relief in breach of contract cases in Attorney General v. Blake. Professor McCamus suggests that the disgorgement remedy should and likely will be available to the victim of a contract breach that constitutes wrongful conduct, pursuant to the principle that a wrongdoer shall not profit from his wrongdoing. Professor McCamus generally concludes that the disgorgement remedy will likely play a peripheral role in contract law, at the margins of more clearly recognized forms of disgorgement liability.

RESTITUTION: ANCIENT WISDOM

by David F. Partlett and Russell L. Weaver

Using allegory involving J.R.R. Tolkein’s Lord of the Rings, this Article argues that the “ancient wisdom” of restitution has been lost among U.S. scholars. The Article discusses some of the reasons why the “wisdom” has been lost, as well as the fact that it has been kept alive by scholars in other countries. Finally, the authors argue for a more prominent place in the curriculum for restitution and restitutionary principles.

WHEN IS ENRICHMENT UNJUST? RESTITUTION VISITS AN ONYX BATHROOM

by Doug Rendleman

When may a plaintiff recover “freestanding” restitution even though she cannot locate the defendant’s enrichment in a recognized category? Courts’ and scholars’ responses fall into two camps: broad restitution, “yes” and narrow restitution, “no.” Professor Doug Rendleman proposes a new frame of reference, one that employs common law reasoning and focuses on the way granting restitution will affect related doctrines that would deny recovery. Viewing a court’s decision in a nettlesome freestanding restitution dispute as a series of questions, he asks lawyers to be open-minded and to accept the unavoidable process, ambiguity, and diverse decisions.

NONMATERIAL MISREPRESENTATION: DAMAGES, RESCISSION, AND THE POSSIBILITY OF EFFICIENT FRAUD

by Emily Sherwin

Damage remedies for intentional misrepresentation require materiality; rescission does not. This Article questions the variance in standards for damages and rescission and suggests several reasons why a materiality requirement may have practical benefits.

SPINNING RESTITUTION: FROM CAULIFLOWER TO COCONUT

by Elaine W. Shoben

Teaching restitution is a challenge at many levels, but the first problem is getting students to take the course. This Article presents a tongue-in-cheek method for advertising the subject to students in order to convince them of the value of learning restitution theory while still in school. It is a humorous commentary on the problem in legal education of making a dull and difficult subject like restitution appealing to modern students.

THE STRUCTURE OF UNJUST ENRICHMENT LAW: IS RESTITUTION A RIGHT OR A REMEDY?

by Stephen A. Smith

In this Article, Professor Stephen A. Smith provides a model for distinguishing between court orders that directly enforce primary duties (e.g., to not trespass) and court orders that require defendants to repair the harm caused by failing to perform a primary duty (e.g., to pay compensatory damages), and then applies the model to the case of restitutionary orders (e.g., a court order that the recipient of a mistaken payment pay an equivalent sum to the payor). Drawing upon, on the one hand, theoretical arguments about the nature of law and the moral foundations of duties to repair, and, on the other hand, the nature of restitutionary orders, Professor Smith concludes that restitutionary orders can be either direct enforcement orders or orders to repair -- sometimes they are the former, sometimes the latter.

JUSTICE SCALIA REINVENTS RESTITUTION

by Tracy A. Thomas

This Article criticizes the Supreme Court’s split decision in Great-West Life v. Knudson for its reliance upon historical equity to interpret the language of a modern statute authorizing “equitable relief” to preclude a claim for restitution. First, the Article asserts that the Court distorted history and equity to reach its result, limiting the availability of equitable restitution. It demonstrates how the dearth of understanding of equity permits the courts, like the Supreme Court in Great-West Life, to issue decisions unguided by accurate knowledge, yet insulated from knowing challenge. The Article then suggests that a preferred way to interpret statutory language distinguishing equitable from legal remedies is by reference to the remedy’s purpose rather than its history.