This semester, I am teaching torts and criminal procedure. Tort law imposes civil liability to redress wrongs that private individuals/entities commit against other private individuals/entities. Criminal procedure concerns the rights afforded to criminal defendants, including rights against unreasonable searches and seizures, the right against self-incrimination, and the right to counsel. Both tort law and criminal law involve society’s response to harms, with criminal law’s harms meriting not just civil damages, but imprisonment and sometimes death. The rationales motivating tort law– compensation, deterrence, fairness, and the efficient administration of the law – are often in tension with one another. Fairness to a defendant, for example, may thwart the goals of compensation and deterrence.
This week, debates over Judge Rosemarie Aquilina’s handling of Larry Nassar’s sentencing hearing provide strong evidence that our country is deeply divided not just over the purposes of criminal law – incapacitation, deterrence, punishment, and rehabilitation – but over the purposes of criminal proceedings.
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