Remedial Education for Berkeley Law Faculty
Courts award damages based on the harm to the victim and the harm to society. Suppose you thought that the Iraq war was a mistake. If so, isn’t the proper remedy to restore Saddam Hussein’s family and the Baath Party to power in Iraq? If you are unwilling to consider that remedy, aren’t you conceding that on balance, the benefits of the war outweigh the costs?
Uh, that would be no and no.
This is first-year Tort Law. The point of damages is to compensate the victim. No one who opposed the war or who thinks it was a mistake (or even a crime) believes that Saddam Hussein was its victim. Maybe they think that Iraqis were the victims. Maybe they think that the American soldiers were the victims. So they would the ones who deserve compensation.
It is also first-year Property Law, specifically nuisance law. Lots of times someone should get compensated for a nuisance even though the activity itself is beneficial overall. As I mentioned a couple of weeks ago, the Restatement standard for private nuisance awards damages if the harm is serious even if the activity’s utility is greater than its harm.
Of course, acknowledging either of these things would also require acknowledging America’s moral obligation in reconstructing Iraq, or in assisting our soldiers and their families in re-integrating themselves into US society. Republicans oppose most foreign aid (except to Israel), and thanks to the GOP’s sequester strategy, scholarships for these veterans and their children have been slashed.
Maybe it’s time for some remedial classes.