Breaking Glass

Looking Backwards

Hard cases make bad law, and since 2002 the exposure of some ugly criminal cases has stirred legislators in several states to contemplate dreadful legal innovations.  However far removed these crimes may appear from regular mainstream American life, the legal principles involved threaten to wreak havoc in the coming decades.

As all the world knows, the Roman Catholic Church has for some years faced a problem from clergy sexual abuse.  In some cases, adult priests had sex with teenage boys and young adults, while others—true pedophiles—focused their attention on small children.  For the sake of argument, let us concede that perhaps three or four percent of priests over the past 60 years were involved in some such misconduct.  How should we as a society respond to this?  In most cases, the statute of limitations has long expired on such acts of molestation, and that restriction has infuriated media and legislators.  In 2002, the state of California passed what is known as a lookback law in an effort to remedy the perceived wrong.  For a period of one year, a so-called civil window, victims could launch civil lawsuits in cases that would otherwise have expired, however long ago the abuse occurred.  Delaware followed with a two-year window, and, as in California, the new opportunity provoked a torrent of suits.

From one perspective, such windows are a wonderful idea.  Imagine, for instance,...

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