• Video

Do Tort Law and Criminal Law Overlap?

Learn how these parallel systems sometimes overlap in practice - from punitive damages in tort to restitution in criminal cases. Professor Robert Leider discusses why society needs both systems despite their convergence, and examines the strategic choices in choosing between civil and criminal remedies. Robert Leider is Associate Professor at Antonin Scalia Law School at George Mason University. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. https://youtube.com/watch?v=vUjQH8WiUYI

Transcript

In theory, the tort and the criminal law system should be complimentary. So when you have a tort, the plaintiff is recovering for the harm that is done to him. In the criminal law system, the government is supposed to be punishing the individual for breaching certain public duties, and they should run in parallel. But having that kind of duplicative litigation is often very expensive, and today the tort and the criminal law systems overlap in ways that are not historically true. So in tort law, it is common that if individuals are particularly culpable in how they committed the tort, that the plaintiffs can recover punitive damages to punish and to deter the person, the defendant, from committing those kinds of acts. In the criminal system. it is also common that if an individual commits a crime that harms an individual, that the defendant will be required to pay restitution as a condition of his sentence. Traditionally, if a victim wanted restitution, he would have to go through the tort process. In principle, the tort and the criminal law system should be parallel systems, even when the conduct violates both ends. In practice, we are punishing some people through the tort system, and we are engaging in restitution through the criminal law system. So there is some overlap between the two. The existence of a tort system does not mitigate the need to have a criminal law system. Even if you punish somebody with punitive damages for certain kinds of conduct, it's just inadequate to pay money damages. We expect something else, usually the loss of liberty, to accompany it. So the tort system will not crowd out the criminal law system, and vice versa. At the margins, you could divert cases to either system. So, if you have a case that involves some sort of misappropriation of property, you could either handle it in tort or in criminal law. You know, maybe you have a fine in criminal law or short jail term or in tort through punitive damages or trouble damages or something else. So there are cases where you could put them in either system and maybe you don't want to do both, but there are times the government says, okay, we have some form of wrongdoing, but we're going to enforce this as a civil penalty rather than as a criminal fine. So there are questions at the margins of which system a person could be in. But in general, they are aimed at different ends, or supposed to be aimed at different ends.

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