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Article Title

Restitution's Outlaws

Authors

Andrew Kull

Abstract

The usual assertion that "restitution is not punitive" is true in the important sense that liability in restitution does not exceed the defendant's enrichment: enhanced or exemplary liability is foreign to this area of the law. On the other hand, restitution incorporates an unmistakably punitive aspect that is given effect in a different fashion: not by enhancing the liability of a disfavored defendant, but by denying relief to a disfavored claimant. The traditional explanation of such outcomes (by recitation of English and Latin maxims) has tended to obscure the extent and the consistency of the law's punitive response.

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