Thursday, February 25, 2021
Nicholas Almendares (Indiana University Maurer School of Law) has posted Foreseeability, Causation, and Guilt (Forthcoming in Collective Action, Philosophy and the Law, Chiara Valentini and Teresa Marques, editors, Routledge) on SSRN. Here is the abstract:
The question of how to define accomplices is both important and vexing, spawning a series of competing, muddled doctrines in U.S. and international law. I argue that the confusion we see in the application of complicity law stems from a deeper theoretical confusion about the nature of accomplice liability. Causal theories of complicity define it by reference to causal contribution: helping bring about the crime makes one an accomplice. But, these theories apply complicity far too broadly -- the taxi driver who unknowingly takes the victim to the site or the worker who maintains the streets all causally contribute to the crime. Recognizing this, John Gardner in particular uses rational attention as a limiting principle, putting some boundaries on the causal chains that the law should take into account. Judges, commentators, and other legal actors, encountering the same problem, have operationalized Gardner's idea in the foreseeability doctrine that similarly limits complicity to consequences that were foreseeable. All else being equal, murder is not a naturally foreseeable consequence of road maintenance. Experience with this doctrine, however, shows that it is not adequate to the task of limiting causal theories of complicity. Even with it in place courts still have to resort to ad hoc policy judgments to avoid unreasonable, overly harsh, punishments. This renders the law arbitrary and inconsistent as like cases end up with different results depending on these ad hoc judgments. Rational attention and foreseeability are therefore not sufficient. Instead, joint intention-based approaches to complicity show more promise and put foreseeability and similar epistemic concepts in their proper place.