The Unsolved Mysteries of Causation and Responsibility
Kimberly Kessler Ferzan
University of Virginia, School of Law
September 12, 2011
Rutgers Law Journal, Forthcoming
This article is part of a symposium on Michael Moore's Causation and Responsibility. In Causation and Responsibility, Moore adopts a scalar approach to factual causation, with counterfactual dependency serving as an independent desert basis. Moore’s theory of causation does not include proximate causation. The problem with Moore's argument is that the problems with which proximate causation dealt - how and when to limit cause in fact - remain unresolved.
In this paper, I focus on two sets of problems. The first set is the “fit” or categorization problems within the criminal law. I focus on three matches: (1) the fit between what the defendant intended and what the law forbids; (2) the fit between the result the defendant intended and the harm actually caused; and (3) the fit between the way the defendant foresaw the causal mechanism working and the actual route that occurred. Although the first question was always a culpability question, Moore shifts the latter two inquiries from causation to culpability. I will argue that relocating the questions does not resolve them and that to the extent Moore offers some preliminary answers, they are insufficient. The second part of this paper turns to the role that counterfactual dependence plays. Moore argues that counterfactual dependence is not a form of causation but is its own independent desert basis, a basis that plays an important role in omission liability. Here, too, because Moore shifts the question outside of causation, he does not fully resolve the very problems he identifies. Hence, even if these questions have found their proper homes, they have not found answers.
Number of Pages in PDF File: 26
Keywords: criminal law, causation, but-for, Michael Moore
Date posted: September 29, 2011