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IPFS News Link • Trump Administration

Donald Trump and Government Theft

• by Andrew P. Napolitano

Last week, a New York court ordered the Trump Organization and its principals — including the former President — to forfeit nearly $400 million to the state government. This gargantuan punishment was not for any crime committed or harm caused by the defendants. Rather, it was government theft at its worst.

Here is the backstory.

When U.S. Supreme Court Justice Benjamin N. Cardozo described the basic principles of tort law in one easy line, he was reflecting upon centuries of Anglo-American jurisprudence. His dictum of wrong first and remedy afterward was essentially based on the common law understanding that an injured party can only seek damages for a wrong actually caused.

The legal and philosophical essence of wrongness is harm. The law does not concern itself with trifles or with theoretical wrongs, but only wrongs that have caused palpable and measurable harm.

The rational corollary to harm first and remedy later is that where there is no harm, there can be no remedy. Were this not the case, then a crazy plaintiff could drag a hapless defendant into court for all sorts of fanciful or theoretical or immeasurable or speculative claims — none of which caused harm.

In tandem with the Cardozoan wrong first and remedy later principle is the causation principle. This teaches that not all wrongdoing justifies a remedy — only those where a duty is owed and breached and where the breach caused measurable damages.

Law students memorize this line: "duty, breach, causation, damages," as it encapsulates what a plaintiff must prove to a jury in order to obtain a monetary judgment against a culpable defendant.


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