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Crimes and Transactions, 88 California Law Review 921 (2000)


Professor Finkelstein's paper focuses on perhaps the most basic question one could ask about the criminal law: What explains the existence of the criminal category, as distinct from other kinds of mischief? Assuming that society has good reason to deter mischievous conduct or to sanction those responsible for it, we might still ask why either goal should require a distinctively criminal category. The problem was brought to contemporary prominence by Robert Nozick, who, in Anarchy, State and Utopia, asked: Why not simply compensate? If we begin with the (contestable) premise that every kind of wrong that we might want to deter or to sanction consists in a rights violation, then the question is, why don't we simply have a scheme in which those who are the victims of rights violations secure compensation from those who have wronged them? In the language of the law, why not torts alone?

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