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I am following up Mark Gergen's posting about the status in these United States of Esprit Telecom v. Fashion Gossip's overarching issue: will a court grant a plaintiff restitution where defendant's "sharp" conduct, not otherwise a "wrong" leads to defendant's enrichment at plaintiff's expense.

Taking a crack at this subject is my article Common Law Restitution in the Mississippi Tobacco Settlement: Did the Smoke Get in Their Eyes, which is found in 33 Georgia Law Review 847, 1999.

States sued tobacco companies to recover their medical payments to ailing citizens' for smoking-related illness. A keystone of the settlements for between $200 and $250 billion was Mississippi's $3.3 billion deal, based primarily on restitution.

In sorting out whether the states' medical payments to smokers would have supported restitution, the article divides restitution into "broad" and "narrow" worlds. Pages 882-92. Jeff v. Stubbs, which Mark cites, is quoted as a representative "broad restitution" decision on page 888.

The tobacco cases, the article concludes, were settled in the dark, without thoughtful consideration of restitution principles. Indeed the article maintains that if the state's restitution theory were presented to a careful appellate court, it would have been rejected.

The dialogue between broad and narrow versions of restitution will continue. In aid of that dialogue the article is submitted to the curiosity and candor of a tough audiences - the enrichment list.

Doug Rendleman