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November 1, 2011

SCOTUS two for Tuesday dealing with civil liability in criminal contexts

As previously noted in this week in preview, this morning the US Supreme Court will hear arguments in Rehberg v. Paulk and Minneci v. Pollard, cases dealing with the potential limits on civil liability for prosecutors and and private prison operators.  Neither case deals directly with sentencing, obviously, both both cases could have a consequential impact on actors involved with sentencing systems.

Though I have a variety of views on the pros and cons of tort liability for various criminal justice participants, I have long been troubled by court-created categorical limits on such liability.  I think all tort liability should be subject to narrow and nuanced rules and I think most of these rules ought to be developed initially by legislatures and executive officials (with some subsequent common-law development in the courts).   I often worry that too much modern tort immunity doctrines for criminal justice participants is created by judicial fiat.  The oral arguments today may showcase in  Rehberg v. Paulk and Minneci v. Pollard how some of the newer justices view some of these issues.

UPDATE via SCOTUSblogTranscripts from today’s arguments in Rehberg v. Paulk and Minneci v. Pollard can be found here and here.

November 1, 2011 at 10:45 AM | Permalink


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Paulk seems particularly interesting, because it raises the question of what happens when the DA's Office becomes a de facto Pinkerton agency taking orders from some powerful private entity. I.e, instead of sending goons to intimidate you, the local big-wig sends an indictment. This is (thankfully) pretty rare, but not an entirely infrequent occurrence, especially in small places. It seems that there should be a judicial remedy for that kind of abuse of the legal process...

Posted by: Anon | Nov 1, 2011 2:41:48 PM

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