This article is part of a symposium on the new Restatement (Third) or Restitution and Unjust Enrichment. I take up the problem of constructive trusts in bankruptcy. The Restatement takes the position that constructive trust claimants have automatic priority in insolvency situations over ordinary creditors. I argue that this unduly reifies a remedial construct that is useful for capturing unjust enrichment but does not always do so in cases of insolvency.
Emily L. Sherwin Frank B. Ingersoll Professor of Law
Professor Sherwin specializes in jurisprudence, property, and remedies. She is the author of three books: Ames, Chafee, and Re on Remedies (with Theodore Eisenberg), Demystifying Legal Reasoning, and The Rule of Rules: Morality, Rules, and the Dilemmas of Law (both with Larry Alexander). In addition, she has published numerous book chapters, articles, and reviews in her subjects of specialty.
Before coming to Cornell, she was a member of the faculty at the University of Kentucky College of Law from 1985 to 1990 and the University of San Diego School of Law from 1990 to 2003. She has also held visiting positions at the University of Pennsylvania and Boston University School of Law (where she received her J.D.). In 2015, she received her M.A. in philosophy from the Sage School of Philosophy at Cornell.
She was recently a member of the advisory committee for the ALI's Restatement (Third) of Restitution and Unjust Enrichment, and continues to be a regular participant in the North Atlantic Workshop on Private Law Theory and the Analytic Legal Philosophy Conference.
B.A., Lake Forest College, 1977
J.D., Boston University School of Law, 1981