The Larry Nassar case prompts important questions for the candidates for Alabama Attorney General to answer.
I. General
The questions are in the context of the mechanisms that society has to try to protect its members from wrongdoings of others in the society.
The mechanisms include the law for punishing the wrongdoer with incarceration and monetary fines and also making the wrongdoer liable to the victim for loss caused. Such punishments and liabilities provide justice that, if there is a loss to the victim, the wrongdoer should pay for it, and also retributive justice. The punishments and liabilities further serve a deterrence purpose to deter future wrongdoing by others. Outside of the law, society uses religious and moral instruction and social condemnation and shaming of wrongdoing to prevent wrongdoing from happening and to fulfill retribution.
The Alabama Attorney General has an important role in shaping and implementing the societal mechanisms aimed against wrongdoing.
There are differing ideas about what is "just" in particular cases and will work best for deterrence purposes.
It is appropriate for candidates for Alabama Attorney General to spell out their views for consideration by the voters.
Several aspects of the mechanisms aimed against wrongdoing are especially deserving of comment by the candidates and educating voters. These include that:
1. There are degrees of intentional, negligent and "innocent" wrongdoing.
2. Some harms are susceptible of objective monetary quantification; other harms are not.
3. There are varying degrees of societal/moral outrage as to particular cases of wrongdoing and these affect the quantum of punishments and liabilities that get imposed on the wrongdoer under the law.
4. Sometimes the wrongdoer receives a benefit from the wrongdoing; sometimes not. Sometimes the victim has been a contributing factor in the harm received by the victim.
5. Where corporate wrongdoing is involved, there are officers and employees who plan and implement the wrongful corporate acts, and also there are stockholders and other officers and employees who don't know about and are not involved in the wrongful corporate acts. Fines and liabilities imposed on corporations are ultimately borne by stockholders, employees and customers in the form of reduced dividends, reduced wages and/or increased prices.
5. Citizens may be victims and also may be on the "wrongdoer" side, and citizens have an interest that the mechanisms have a "fair and balanced" structure.
6. Wrongdoing may also get punished by social condemnation, shaming, and job termination, which happen outside the law.
7. The concept of deterrence calls for consideration of how the threat of fines and liabilities will deter the doing of wrongful acts, and particularly whether corporate officers and employees who plan and carry out corporate wrongful acts will be deterred by fines and liabilities imposed on the corporation that are not borne at all by such officers and employees.
Putting all the foregoing together is complicated.
II. Basic questions
While it is complicated, there are some basic questions that can be posed, and the Larry Nassar case is an excellent example for using to pose the questions.
Nassar is an intentional wrongdoer. He received benefits from his wrongdoing The harms to his victims are not susceptible of objective monetary quantification. Nassar's wrongdoing has provoked a very high level of societal/moral outrage. Nassar has been criminally prosecuted. The societal/moral outrage has been reflected in Nassar's sentencing punishment. Nassar's victims may bring a civil lawsuit against him to get monetary damages for the harms Nassar did to them. Nassar may have very little in the way of personal assets to pay his victims, and a civil lawsuit against Nassar for monetary damages may not be worthwhile.
Beyond Nassar, the gymnastics association and its officers, Michigan State University and its officials, and independent coaching programs and facilities are being looked at for applying society's mechanism for protecting its citizens from wrongdoing.
The high level of societal/moral outrage is resulting in significant "punishments" being received. Officers of the gymnastics association have resigned, and the President of MSU has resigned. This has not been pursuant to criminal or civil actions brought against them, but as a result of the extremely high level of social/moral outrage at Nassar's wrongdoing. How much knowledge and culpability these persons actually had has not been subjected to the rigors of judicial application of the law, and may never get subjected to that. While there may not be judicial application of the law, MSU has its own internal administrative processes and standards for investigating and passing judgment about knowledge and culpability.
Ultimately one or more of the persons who have resigned may have a great deal of "innocence" and be collateral victims of Nassar's intentional wrongdoing.
Civil lawsuits seeking large monetary damages against the officers of the association and University may or may not happen. Likely those officers don't have assets that would much satisfy large monetary damages the victims would seek.
To satisfy a large monetary liability, MSU is a good candidate for a civil lawsuit. The gymnastics association may have a sizable bank account, or may not.
Financial benefits that MSU received from Nassar are appropriate for consideration of what fines and liabilities should be imposed on MSU. Liabilities and fines in excess of the financial benefits received by MSU are legitimately viewed as being imposed on "innocent" parties, such as students, faculty and funders of MSU.
Here are three significant questions for candidates for Alabama Attorney General:
1. Should an Attorney General advocate that punishments be pursuant to law and should an Attorney General endeavor to damp down societal/moral outrage because unfair punishments may result outside the law?
2. Should an Attorney General advocate for the law to have legal standards for culpability for officials, officers and employees in situations where there is wrongdoing by a corporation or other entity such as MSU and the gymnastics organization, and advocate the bringing of legal cases as appropriate against those persons, with attendant punishments of them such as fines?
3. Should an Attorney General advocate that a prerequisite for holding a corporation or other entity liable for wrongdoing be that officers and employees who planned and carried out the wrongful corporate acts be held individually liable under the law for their participation in the wrongful corporate acts, with the caveat that such prerequisite should not apply to the extent the entity received benefits from the wrongdoing and that benefit passed through to the parties who will bear the burden of the liability? This is on the theory that deterrence is mainly effective when punishments are imposed on the individuals who intentionally (or negligently) participated in the wrongful corporate acts.
Update 12/8/18
Michigan State University has paid a $500,000,000 settlement payment in the Larry Nassar case. https://www.mlive.com/news/2018/12/michigan-state-makes-500-million-payment-for-nassar-victims.html
USA Gymnastics has filed for bankruptcy. https://www.newsweek.com/usa-gymnastics-bankruptcy-filed-larry-nassar-usag-1246014
Former President of Michigan State University Lou Anna Simon has been charged with two felony and two misdemeanor counts for allegedly lying to police during their investigation into how the school handled sexual abuse allegations against Larry Nassar. https://www.wuft.org/nation-world/2018/11/21/michigan-state-university-ex-president-charged-with-lying-in-larry-nassar-case/
The University of Southern California had allegations made against it concerning sexual harassment and abuse by a gynecologist who had worked at its student health center. USC reached a tentative class action settlement agreement worth $215 million regarding the allegations. https://www.npr.org/2018/10/19/658909013/usc-reaches-215-million-settlement-over-gynecologist-abuse-allegations
USC President resigned as a result of the gynecologist scandal and a second scandal of hard core drug use by a medical dean. https://laist.com/2018/08/02/usc_scandal_on_scandal_on_scandal_heres_what_happened_and_what_you_need_to_know.php.
Putting all the foregoing together is complicated.
II. Basic questions
While it is complicated, there are some basic questions that can be posed, and the Larry Nassar case is an excellent example for using to pose the questions.
Nassar is an intentional wrongdoer. He received benefits from his wrongdoing The harms to his victims are not susceptible of objective monetary quantification. Nassar's wrongdoing has provoked a very high level of societal/moral outrage. Nassar has been criminally prosecuted. The societal/moral outrage has been reflected in Nassar's sentencing punishment. Nassar's victims may bring a civil lawsuit against him to get monetary damages for the harms Nassar did to them. Nassar may have very little in the way of personal assets to pay his victims, and a civil lawsuit against Nassar for monetary damages may not be worthwhile.
Beyond Nassar, the gymnastics association and its officers, Michigan State University and its officials, and independent coaching programs and facilities are being looked at for applying society's mechanism for protecting its citizens from wrongdoing.
The high level of societal/moral outrage is resulting in significant "punishments" being received. Officers of the gymnastics association have resigned, and the President of MSU has resigned. This has not been pursuant to criminal or civil actions brought against them, but as a result of the extremely high level of social/moral outrage at Nassar's wrongdoing. How much knowledge and culpability these persons actually had has not been subjected to the rigors of judicial application of the law, and may never get subjected to that. While there may not be judicial application of the law, MSU has its own internal administrative processes and standards for investigating and passing judgment about knowledge and culpability.
Ultimately one or more of the persons who have resigned may have a great deal of "innocence" and be collateral victims of Nassar's intentional wrongdoing.
Civil lawsuits seeking large monetary damages against the officers of the association and University may or may not happen. Likely those officers don't have assets that would much satisfy large monetary damages the victims would seek.
To satisfy a large monetary liability, MSU is a good candidate for a civil lawsuit. The gymnastics association may have a sizable bank account, or may not.
Financial benefits that MSU received from Nassar are appropriate for consideration of what fines and liabilities should be imposed on MSU. Liabilities and fines in excess of the financial benefits received by MSU are legitimately viewed as being imposed on "innocent" parties, such as students, faculty and funders of MSU.
Here are three significant questions for candidates for Alabama Attorney General:
1. Should an Attorney General advocate that punishments be pursuant to law and should an Attorney General endeavor to damp down societal/moral outrage because unfair punishments may result outside the law?
2. Should an Attorney General advocate for the law to have legal standards for culpability for officials, officers and employees in situations where there is wrongdoing by a corporation or other entity such as MSU and the gymnastics organization, and advocate the bringing of legal cases as appropriate against those persons, with attendant punishments of them such as fines?
3. Should an Attorney General advocate that a prerequisite for holding a corporation or other entity liable for wrongdoing be that officers and employees who planned and carried out the wrongful corporate acts be held individually liable under the law for their participation in the wrongful corporate acts, with the caveat that such prerequisite should not apply to the extent the entity received benefits from the wrongdoing and that benefit passed through to the parties who will bear the burden of the liability? This is on the theory that deterrence is mainly effective when punishments are imposed on the individuals who intentionally (or negligently) participated in the wrongful corporate acts.
Update 12/8/18
Michigan State University has paid a $500,000,000 settlement payment in the Larry Nassar case. https://www.mlive.com/news/2018/12/michigan-state-makes-500-million-payment-for-nassar-victims.html
USA Gymnastics has filed for bankruptcy. https://www.newsweek.com/usa-gymnastics-bankruptcy-filed-larry-nassar-usag-1246014
Former President of Michigan State University Lou Anna Simon has been charged with two felony and two misdemeanor counts for allegedly lying to police during their investigation into how the school handled sexual abuse allegations against Larry Nassar. https://www.wuft.org/nation-world/2018/11/21/michigan-state-university-ex-president-charged-with-lying-in-larry-nassar-case/
The University of Southern California had allegations made against it concerning sexual harassment and abuse by a gynecologist who had worked at its student health center. USC reached a tentative class action settlement agreement worth $215 million regarding the allegations. https://www.npr.org/2018/10/19/658909013/usc-reaches-215-million-settlement-over-gynecologist-abuse-allegations
During the past 25 years there have been numerous settlements and bankruptcies in Catholic Church sex abuse cases in the United States. For a list, see https://en.wikipedia.org/wiki/Settlements_and_bankruptcies_in_Catholic_sex_abuse_cases.
This week, 29 priests and deacons in the Catholic Archdiocese of Mobile, Alabama have been "credibly accused" of sexual misconduct with a child since 1950. https://www.wkrg.com/news/mobile-county/breaking-mobile-archdiocese-releases-names-of-priests-involved-in-sexual-misconduct/1642835146
Update 2/26/21
So, Boy Scouts of America is destroyed.
— Rob Shattuck (@RobShattuckAL06) November 18, 2020
What do Alabamians think about that?
Are there Alabamians who think Boy Scouts of America should not be destroyed?
How SHOULD society & the law have dealt with the situation?#alpoliticshttps://t.co/gpZ0dUcJgJhttps://t.co/AQBzV70je3
In Larry Nassar case, MSU paid $500,000,000; USA Gymnastics filed for bankruptcy; and a former MSU President was charged with felonies & misdemeanors for allegedly lying to police in their investigation.https://t.co/gpZ0dUukFj#alpoliticshttps://t.co/3YbF7SwIcr via @nbcnews
— Rob Shattuck (@RobShattuckAL06) February 26, 2021
In your campaign for AL Supreme Ct Chief Justice, I hope you will discuss w/ voters about how society should try to deter & prevent wrongdoing & compensate victims of wrongdoing (including role of punitive damages). https://t.co/h5fZv0DCjl#alpolitics https://t.co/apWr5E33R9
— Rob Shattuck (@RobShattuckAL06) August 12, 2023
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