Cause-in-Fact After Burrage v. United States

45 Pages Posted: 5 Feb 2016 Last revised: 19 Feb 2016

See all articles by Eric Alan Johnson

Eric Alan Johnson

University of Illinois College of Law

Date Written: February 3, 2016

Abstract

What significance, if any, should state courts assign to the Supreme Court’s unanimous 2014 decision in Burrage v. United States? In Burrage, the Supreme Court relied on “ordinary meaning” and “traditional understanding” in concluding that causation elements in federal criminal statutes nearly always require so-called “but-for” causation. State courts, by contrast, traditionally have applied two important modifications to the but-for test: (1) an acceleration rule, which assigns liability to defendants who hasten “even by a moment” the coming-to-fruition of the proscribed harm; and (2) a contribution rule, which assigns liability to defendants who “contribute” incrementally to the underlying causal mechanism. This paper defends the state courts’ approach. It argues that the acceleration rule and the contribution rule both are necessary to address cases where the but-for test fails to capture ordinary usage. Specifically, these supplementary rules are necessary to address cases of spurious, or preempted, causal sufficiency and cases of causal overdetermination.

Keywords: Causation, Criminal Law

JEL Classification: K14

Suggested Citation

Johnson, Eric Alan, Cause-in-Fact After Burrage v. United States (February 3, 2016). Florida Law Review, Vol. 68, 2016, Forthcoming; University of Illinois College of Law Legal Studies Research Paper No. 16-13. Available at SSRN: https://ssrn.com/abstract=2727475

Eric Alan Johnson (Contact Author)

University of Illinois College of Law ( email )

504 E. Pennsylvania Avenue
Champaign, IL 61820
United States

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