Rule-Oriented Realism

In his new book The Law and Ethics of Restitution, Hanoch Dagan undertakes to explain and justify the American law of restitution. He offers a broad theoretical account of this poorly understood subject, designed not only to fortify the substantive law of restitution but also to clarify the role and methodology of courts in developing the field. Dagan’s book also provides lively discussion of the role of restitution in some of the most highly publicized legal developments of recent years. Those who think of restitution as an obscure branch of “legal remedies” may be surprised to read about the role restitution has played in tobacco litigation, slavery reparations, and rights following the breakup of unmarried cohabitants. Dagan describes himself as a Legal Realist in the style of Karl Llewellyn and Felix Cohen (pp. 3-4). Realism, for Dagan, entails “an ongoing (albeit properly cautious) process of identifying the human values underlying existing legal doctrines and trying to promote them in the best way possible.” Accordingly, he subjects established rules across the field of restitution to a “normative” analysis based on the values of autonomy, utility, and community (p. 4). Working within this framework, he sometimes defends existing rules, sometimes proposes refinements to rules, and sometimes argues for significant reforms. Dagan’s book is a major contribution. He approaches restitution with a combination of doctrinal expertise and theoretical sophistication that is rare in writing on private law. His arguments are careful, consistent, and, most often, persuasive. Despite the overall success of the project, however, there are ambiguities in Dagan’s jurisprudence. In particular, he maintains throughout the book an ambivalent attitude toward legal rules and their role in common law decisionmaking. Dagan is an avowed Realist, yet he is attentive to and respectful of doctrine and often presents his own recommendations in the form of rules. This raises the question: is it possible to be a rule oriented Realist?