April 23, 2014 Leave a comment
Originally from a comment on the Volokh Conspiracy’s new WaPo home:
The Volokh Conspiracy has sheltered its share of heretics, but these typically are of the “liberaltarian” variety — Professor Cassell’s advocacy (used advisedly) is published here for reasons not apparent to me.
Put forth by the professor is no less extraordinary a claim than that joint & several liability ought to obtain amongst individuals violating distinct sections of Title 18. This proposal swims against both the overwhelming national trend abrogating J&S liability and the Volokhian/libertarian condemnation of expansive federalization of the criminal law.
The claim made here goes against sound public policy (if there is such a thing). It was unsupportable as a matter of statutory construction (see the dissent — the majority’s analysis is sound only if the Court has legislative powers). And, perhaps most offensively, it is an absurd exemplar for Prof. Cassell’s purported position: namely that victims ought to have an increased role in the criminal law.
Victims, as commonly conceived, are not those people of whom unidenifiable photographs circulate on the internet. Victims are mugged, robbed, brutalized, raped, murdered, and worse. These individuals, I think, probably do deserve more of a role in our justice system, but they probably will not have it as any result of the policy preferences prevailing among “Conspirators.”
Trial attorneys are the beneficiaries of Professor Cassell’s position. I cannot but conclude they are also its backers. No group — certainly not crime victims, the vast majority of whom have have recourse against no solvent party — can hope for the pecuniary rewards trial attorneys must foresee in this essentially novel cause of action.
Perhaps I am wrong. If so I should welcome an explanation from the Professor or any other Conspirator. For the moment these postings strike me as more problematic even than Professor Epstein’s recent thoughts on intellectual property.