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Abstract:
This article undertakes a detailed examination of the justifications advanced for the national and international rush to enact and apply hate and bias crime legislation as an answer to the tragically brutal expressions of racial animosity, bigotry, homophobia, and misogyny that continue to remind the Western World of its inability to protect its citizens from those who do not share its egalitarian ideals. In undertaking this project, we seek to synthesize and critically evaluate over a decade's worth of scholarship on the wisdom of the enhanced penalties imposed by hate and bias crime legislation. We further seek to demonstrate that this literature, to date, has sadly failed to provide both an adequate moral justification and an acceptable doctrinal framework for this politically popular form of state action.

The article is divided into four parts, corresponding to the four principal rationales for hate/bias crime legislation that have advanced over the past decade or more. Part I considers the "wrongdoing thesis" - the claim that the harms perpetrated by offenders who are motivated by group-hatred or prejudice represent wrongs more serious than those perpetrated by defendants who commit the same offenses with different motivations. We work through an extensive catalogue of harms that are commonly claimed to be uniquely associated with hate- and bias-motivated crimes: elevated physical and psychic injuries to principal victims; wide-spread fear within the principal victim's community; a diminished faith in the legal system and an associated instability within the larger social order; vigilante acts of retaliation by victims and their communities; the publication by such criminal acts of harmful messages corruptive of the moral order; and the associated, but independent harm of the state being complicit whenever it fails to express in law the moral outrage that such "statements" properly incite. As we demonstrate, even if social science ultimately vindicates the empirical claims made by those who propound the various wrongdoing theses, there are conceptual and moral problems that prevent these arguments from justifying the blanket sentence enhancements imposed by existing hate and bias crime legislation.

Part II takes up different versions of what we call the "expressivist thesis" - the thesis that the disrespect for communities expressed by acts of group-hatred and prejudice properly invite denunciation by the state in the form of elevated criminal penalties. As we argue, either the expressivist thesis is redundant with the wrongdoing thesis, and so invites the problems articulated in Part I; or it depends upon a free-standing expressivist theory of punishment, and is, for that reason, unsustainable.

Part III considers what we call the "culpability thesis" - the thesis that hate and prejudice constitute uniquely culpable mental states that justify penalties more severe than are meted out for other forms of viciousness. We demonstrate in this Part that if hate and bias are construed as culpability criteria, then hate/bias crimes are novel doctrinal inventions that are more at home within character-based theories of the criminal law that are best justified by political perfectionism, as opposed to act-based theories that are more in harmony with classic political liberalism.

Finally, Part IV takes up the "equality thesis" - the thesis that the enhanced penalties of hate/bias crimes properly function to achieve a more egalitarian distribution of the risk of crime within our society, because they deter the (further) victimization of groups of citizens who already bear a disproportionate amount of our society's violence. As we demonstrate, each of the various senses that can be ascribed to this claim render it either conceptually incoherent or morally indefensible, and as such, it fails to function as a promising alternative to the theories of hate/bias crime legislation that we examine in Parts I, II and III.

Abstract:
This article explores the deeply pervasive view within tort law that negligence is a relational concept--that to assess whether a defendant should be held to be negligent in causing the plaintiff's harm (and, by some accounts, to assess whether the defendant should be thought the proximate cause of the plaintiff's harm), one must ask whether the harm that happened was within the class of harms that made it unreasonable of the defendant to act as he did. The paper begins by working through the historical development of a harm-within-the-risk analysis of negligence and demonstrates how that analysis was thought by some to eliminate altogether the need for a separate inquiry into proximate causation. It then advances an extended argument that a harm-within-the-risk analysis (conceived of either as an analysis of negligence or an analysis of proximate causation) both invites damning conceptual difficulties and is normatively undesirable. Its third part examines whether certain traditional doctrines such as transferred intent and per se negligence (predicated on statutory violations) can be preserved if a relational view of negligence is rejected, and argues that, in fact, such doctrines can be preserved intact. The paper concludes by demonstrating the descriptive inaccuracy of a harm-within-the-risk theory of proximate causation. The upshot of the argument is that Justice Cardozo was wrong in making his famous claim that there is no such thing as "negligence in the air,"--that "risk imports relation."

Abstract:
This paper addresses the one-occurrence/two-occurrences insurance law issue with respect to the destruction of the World Trade Center, currently being litigated in the Southern District of New York Federal District Court. The casualty policy in force on September 11, 2001 provided for a $3.6 billion payout "per occurrence" of a covered risk, and the issue is whether two coordinated attacks destroying two towers was one or two occurrences. A review is initially undertaken of the causal test used by the law on such limits in both liability and casualty policies and of the policies that should guide such test. That review isolates two separable questions: (1) How far back in the causal chain (of events leading to the damage insured against) should a court look when it is counting occurrences for these purposes? And (2) What criteria for individuating events should a court use once it has isolated the correct time-slice at which to do the counting? The paper urges a novel solution to the first question, relying on a scalar idea of legal causation; it also urges an expectation-based theory for individuating occurrences in insurance contracts, a theory only partly relying on the underlying metaphysics of events. It then applies both answers to the facts of the World Trade Center dispute, concluding that there were two occurrences on September 11, 2001. The paper lastly takes up the role of definitions of "occurrence" occurring in some versions of the World Trade Center insurance policy, arguing that the Second Circuit was plainly wrong in its attempt to make such definitions definitive of the issue. Two uses of definitions in ordinary speech and the law are distinguished, and the error of the Second Circuit was to pick the least typical use of such definitions without even seeing the possibility of there being another (let alone a more typical) use.