Periodic Reporting for period 1 - UEPP (Unjust Enrichment and Public Policy)
Reporting period: 2023-04-01 to 2025-09-30
The basic maxim of the law of unjust enrichment states that a person should not be unjustly enriched at another’s expense. This broad principle is primarily used to solve local problems and disputes between specific individuals through private litigation. This project offers a paradigm shift and the use of the fundamental principle prohibiting unjust enrichment to solve broad societal issues, both as a private and a public law doctrine. This is a double paradigm shift. From the direction of the law of unjust enrichment, it requires a reconceptualization of this area of law, to adjust it to solve entirely new types of problems. From the direction of public law, it offers to refresh the way we currently look at deep societal ills such as global warming, the spread of fake news or the production of harmful goods and services. In all these contexts, and many others, current legal frameworks tend to focus on the harmfulness of certain activities. The project offers, instead, to start the analysis with undeserved and ill-obtained gains. Phenomena like global warming and fake news are problematic because they are harmful, but persistent, and so difficult to regulate, because they are immensely beneficial to strong interest groups. A regulatory perspective focusing on gains can therefore prove instrumental in fighting some of the most important legal battles of our time. This paradigm shift involves a broad project and requires a multistage research program, conducted by the PI together with a team of post-doctoral researchers.
The objective of the project is to explore the usefulness of unjust enrichment as a general public law principle, and as a key element in the governance of broad societal issues. Such issues can include, for instance, problems related to global warming and climate change or the spread of fake news through social media. The principles of unjust enrichment, focusing on gains rather than on harms, can add a useful perspective to the legal treatment of such important issues. This general perspective offers a host of interesting legal questions and possible directions for legal development. The goal of the project is not to replace any existing regulatory frameworks; rather, the project seeks to offer new perspectives and to inform and enrich existing regulatory tools, by borrowing insights from the private law doctrines of the law of unjust enrichment, and from the principles of an established gains-based legal framework.
The objective of the project is to explore the usefulness of unjust enrichment as a general public law principle, and as a key element in the governance of broad societal issues. Such issues can include, for instance, problems related to global warming and climate change or the spread of fake news through social media. The principles of unjust enrichment, focusing on gains rather than on harms, can add a useful perspective to the legal treatment of such important issues. This general perspective offers a host of interesting legal questions and possible directions for legal development. The goal of the project is not to replace any existing regulatory frameworks; rather, the project seeks to offer new perspectives and to inform and enrich existing regulatory tools, by borrowing insights from the private law doctrines of the law of unjust enrichment, and from the principles of an established gains-based legal framework.
In line with the Description of the Action (DoA) the main research achievements are published and forthcoming articles in legal journals, all dedicated to the development of the law of unjust enrichment as an instrument of public policy. As detailed in the DoA, the project includes investigation into the doctrine and principles of the law of unjust enrichment, as well as several case studies.
A first group of articles relates to climate change and climate litigation. Two law review articles in this series have already been accepted for publication. The first paper is titled “Climate Change as Unjust Enrichment,” coauthored by the PI together with Maytal Gilboa and Roee Sarel, and was published in the Georgetown Law Journal in 2024. The second paper is titled “Climate Lies and Unjust Gains,” coauthored by the PI with Vanessa Casado-Perez, Yael Lifshitz and Niv Meyerson, and is forthcoming in the Emory Law Journal. The authors of the first article were also invited to contribute a chapter on unjust enrichment and climate change to the forthcoming Oxford handbook on Climate change and Private Law.
Another series of articles focus on disinformation, platform regulation, and AI liability. The first of these articles, “Unjust Enrichment by Algorithm,” co-authored by the PI and Ayelet Gordon-Tapiero, was published in the George Washington Law Review. Another paper, titled “AI Training as Unjust Enrichment,” also coauthored by the PI and Ayelet Gordon-Tapiero, is forthcoming in Ohio State Law Journal. Another article, titled “Deepfake Liability,” Coauthored by the PI with Ayelet Gordon-Tapiero and Gideon Parchomovsky, is forthcoming in the North Carolina Law Review.
The article titled “The Opioids Crisis as Unjust Enrichment,” coauthored with Ohad Somech and Maytal Gilboa, is forthcoming in the North Carolina Law Review. This article studies the applicability of unjust enrichment law to the regulatory fraud that generated the opioids crisis.
The project aims to offer general insights into the applicability of unjust enrichment law to issues of public policy and broad societal problems also beyond these areas and case studies. Within this framework, several papers have explored modifications to existing unjust enrichment remedies, in varied doctrinal contexts including contract law, family law, and intellectual property. The article titled “the Reliance Interest in Intellectual Property Law” was coauthored by the PI together with Gideon Parchomovsky and is forthcoming in the Boston University Law Review. The article “The Uneasy Case for Copyright Disgorgement”, by Roy Baharad, forthcoming in the Florida Law Review, reexamines established justifications for the disgorgement remedy. Another article by Roy Baharad, titled “Contract Remedies and Search Efforts,” forthcoming in the Journal of Law and Economics, studies the novel concepts of partial disgorgement and conditional disgorgement. In addition, a series of articles study the role of unjust enrichment remedies and causes of action in the field of family law. The first of these articles, titled “Paternity Fraud: Damages, Restitution, and Remedies against Third Parties," coauthored by the PI with Shay Hay and Benjamin Shmueli and published in BIU Law Review, was cited by the Israeli Supreme Court.
The articles described above comprise a growing body of literature offering uses of unjust enrichment law as a basis for social change and studying existing elements in unjust enrichment law that might be used to promote public policy goals.
A first group of articles relates to climate change and climate litigation. Two law review articles in this series have already been accepted for publication. The first paper is titled “Climate Change as Unjust Enrichment,” coauthored by the PI together with Maytal Gilboa and Roee Sarel, and was published in the Georgetown Law Journal in 2024. The second paper is titled “Climate Lies and Unjust Gains,” coauthored by the PI with Vanessa Casado-Perez, Yael Lifshitz and Niv Meyerson, and is forthcoming in the Emory Law Journal. The authors of the first article were also invited to contribute a chapter on unjust enrichment and climate change to the forthcoming Oxford handbook on Climate change and Private Law.
Another series of articles focus on disinformation, platform regulation, and AI liability. The first of these articles, “Unjust Enrichment by Algorithm,” co-authored by the PI and Ayelet Gordon-Tapiero, was published in the George Washington Law Review. Another paper, titled “AI Training as Unjust Enrichment,” also coauthored by the PI and Ayelet Gordon-Tapiero, is forthcoming in Ohio State Law Journal. Another article, titled “Deepfake Liability,” Coauthored by the PI with Ayelet Gordon-Tapiero and Gideon Parchomovsky, is forthcoming in the North Carolina Law Review.
The article titled “The Opioids Crisis as Unjust Enrichment,” coauthored with Ohad Somech and Maytal Gilboa, is forthcoming in the North Carolina Law Review. This article studies the applicability of unjust enrichment law to the regulatory fraud that generated the opioids crisis.
The project aims to offer general insights into the applicability of unjust enrichment law to issues of public policy and broad societal problems also beyond these areas and case studies. Within this framework, several papers have explored modifications to existing unjust enrichment remedies, in varied doctrinal contexts including contract law, family law, and intellectual property. The article titled “the Reliance Interest in Intellectual Property Law” was coauthored by the PI together with Gideon Parchomovsky and is forthcoming in the Boston University Law Review. The article “The Uneasy Case for Copyright Disgorgement”, by Roy Baharad, forthcoming in the Florida Law Review, reexamines established justifications for the disgorgement remedy. Another article by Roy Baharad, titled “Contract Remedies and Search Efforts,” forthcoming in the Journal of Law and Economics, studies the novel concepts of partial disgorgement and conditional disgorgement. In addition, a series of articles study the role of unjust enrichment remedies and causes of action in the field of family law. The first of these articles, titled “Paternity Fraud: Damages, Restitution, and Remedies against Third Parties," coauthored by the PI with Shay Hay and Benjamin Shmueli and published in BIU Law Review, was cited by the Israeli Supreme Court.
The articles described above comprise a growing body of literature offering uses of unjust enrichment law as a basis for social change and studying existing elements in unjust enrichment law that might be used to promote public policy goals.
The state of the art regards unjust enrichment law as firmly situated within the domain of private law, traditionally limited to resolving bilateral disputes between individual parties. The articles produced by our group mark a substantial departure from this familiar paradigm and significantly advance the field. Our work collectively offers a growing body of scholarship that reconceptualizes unjust enrichment as a tool with potential relevance to public law and policy. Rather than confining the doctrine to individual disputes, we have explored its capacity to address systemic issues and promote collective welfare—most notably in the regulation of climate change, public health policy, and AI governance.
Within this broad framework, a somewhat unexpected and significant advancement relates to notions of preemption and the usefulness of unjust enrichment law to overcome preemption problems. One example if this is from the Article “Climate Lies and Unjust Gains,” which shows how unjust enrichment claims help overcome preemption problems in climate litigation. Similarly, in the paper “AI Training as Unjust Enrichment,” we show how unjust enrichment doctrine can bypass significant preemption issues imposed by the Copyright Act.
Within this broad framework, a somewhat unexpected and significant advancement relates to notions of preemption and the usefulness of unjust enrichment law to overcome preemption problems. One example if this is from the Article “Climate Lies and Unjust Gains,” which shows how unjust enrichment claims help overcome preemption problems in climate litigation. Similarly, in the paper “AI Training as Unjust Enrichment,” we show how unjust enrichment doctrine can bypass significant preemption issues imposed by the Copyright Act.