Impossibility Attempts: A Speculative Thesis

Abstract

Courts and commentators have struggled for years to identify rules to explain and justify certain widely-shared intuitions about impossibility attempts, and they have proposed rules variously based upon (1) what mistakes actors make, (2) what intentions actors possess, and (3) what conduct actors perform. None of the proposals fully succeeds, however, and none is able to explain the widely-shared intuition, which underlies Sandy Kadish's inventive hypothetical regarding Mr. Law and Mr. Fact, that some attempts based upon mistakes of law are just as blameworthy as attempts based upon mistakes of fact. I propose an alternative rule that, I believe, not only explains where and why people possess widely-shared intuitions regarding impossibility attempts (including regarding Mr. Law and Mr. Fact), but also explains where and why people have conflicting intuitions. I argue that widely-shared intuitions of blameworthiness and non-blameworthiness regarding impossibility attempts are a function, respectively, of whether informed citizens of the jurisdiction that enacted the statutory offense that the defendant allegedly attempted to commit widely believe or disbelieve that he would have been a threat to interests that the statute seeks to protect - a determination, in turn, that is a function of whether they widely believe or disbelieve that he would have committed the offense under counterfactual circumstances that they fear could have obtained.

Keywords: Punishment, Responsibility, Attempts