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Thursday, February 21, 2008

Incentives to Precautions in Proximate Cause and some meta-questions

In a couple hours, I'm going to be wrapping up some proximate cause materials in my criminal law class. Here's one thing I've been thinking about, and I would be curious to hear reactions to it.
Imagine the Kibbe case.  (K gets V snockered drunk, robs him, puts him in car, drives, and leaves V with pants at his ankles, without eyeglasses, on the side of an desolate night road in the cold.  V dies when struck in the middle of the lane by a driver who didn't see V.)

Now, imagine, as Dressler asks us, that instead of dying by a truck, a plane crashes in the road and kills V instead.  There you have foreseeable result (death of V) by unforeseeable manner (plane crash).

Should this manner of death by plane serve to break the chain of attributing proximate cause to Kibbe b/c  the unforeseeable manner is something Kibbe can't take precautions against? Recall the truck driving into V is something that can be more readily avoidable, in part because the truck impact is more foreseeable.  Should the law give an incentive to K to take care where K might otherwise not take care? Should we use a negligence rule or strict liability rule? 

It would seem to make sense to use a negligence rule, but consider:  s/l should induce optimal care and optimal activity levels, whereas a negligence rule will only induce optimal care.  So if we think the activity of placing people in danger by some foreseeable means should be eliminated, perhaps the s/l rule makes sense in terms of who's going to be the proximate cause. 

The main problem here is that I don't think any one person is thinking about proximate cause issues when committing their dangerous activities, so all this "magical thinking" is worth bupkis. On this view, it's hard to see why crim law theorists sometimes puzzle over doctrinal conundra like this apart from their inherent interest.  Is there a way to make sense of this to students? Should courts be moved by these considerations in advocacy?

Posted by Administrators on February 21, 2008 at 11:36 AM in Criminal Law, Dan Markel | Permalink


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I think you're correct, Ted, when the antecedent cause is not culpable: after all, proximate cause is generally meant to help the law sort out which of all the "actual causes" are legally relevant. After all, if I rob you, my mother is an actual (but for) cause b/c she birthed me and had she not done that, she could be deemed a cause of my robbing you. But the proximate cause analysis is ultimately a fairness/policy assessment regarding which of the antecedent causes should be held to be the legal or proximate cause. And for that reason, I don't agree that Kibbe is just the beneficiary, b/c it's perfectly plausible to hold Kibbe the proximate cause under a variety of doctrines. And those doctrines may better be understood in the frame of s/l or negligence rules, as I suggested in the post.

Posted by: Dan Markel | Feb 23, 2008 10:56:46 AM

The issue of proximate cause isn't to protect Kibbe from the possibility of a plane crash. It's to protect innocent bystanders from the possibility of a plane crash: if the hotel missed your wake-up call, forcing you to take a different plane, and the different plane crashed, the hotel isn't liable for the plane crash; if you were on the plane because your employer asked you to make a sales call, and you had to leave the destination early because the customer refused to buy anything from you, the customer isn't liable for the plane crash. The hypothetical Kibbe is just a beneficiary of the rule.

Posted by: Ted | Feb 23, 2008 10:14:41 AM

Dan, we just came out of a faculty enrichment session here on learning theory, and the speaker made a point that could involve a lot of unpacking, but is apropos here. The issue isn't whether we make sense of it to students. The issue instead is thinking about how students will import pre-existing modes of making sense of data - i.e. importing meaning, or purpose (or teleology, if we want to be fancy about it) to the exercise.

Not to be too shameless about it, but this was the point I was making in Models and Games. Do your students take what you are saying as the law somehow trying to model what is actually happening? That is, is that granular theorizing about proximate cause analogous to a scientific theory (or social scientific theory) about what is really happening? To get to that point takes a lot of thinking like a lawyer, and that assumes implicitly a lot of ex ante rationality! But it's not uncommon to conflate the model created by the law with the reality on the ground. The question I ask is whether a contract is "the deal" or is it a model of "the deal?"

I think one of the broad issues of legal education is we throw students into a situation in which we as professor are thinking like lawyers, in which understanding the edge of the envelope of proximate cause is helpful in understanding the core of proximate cause, but it's meaningful to US because we subsumed the inquiry into our own way of making sense of the world. That is, we understand the purpose of the exercise, whether the inherent interest of the exercise in pure thought, the use of the concept in ex post advocacy, or the (misguided) construction of a theory of the world in which people rationally consider this kind of uber-rationality.

As I said, I see this all the time in teaching contracts.

Posted by: Jeff Lipshaw | Feb 21, 2008 2:04:35 PM

I think it's hard to see the point of the causation stuff without thinking about why we care about results in the first place. Why do we regard a successful murder as a worse crime than a mere attempt? Why do we regard recklessness that produces a harm as worse than mere recklessness? The Kibbe defendants wouldn't be any less culpable if a very-unusual favorable coincidence had happened, like a good Samaritan stopping by and pulling him out of the road. By the same token, they're not any more culpable if a very-unusual unfavorable coincidence--like the plane crash--happens. Put another way, I can see why you might say that it's the recklessness of leaving someone in the road that matters, not whether he gets hit by a car versus an airplane. But I don't think it's plausible to say simultaneously (a) the results do matter, and (b) really unusual results like airplane crashes count just as much as typical results like cars driving on roads. Results should matter, I think, insofar as they are a relatively reliable window into the culpability of the defendant. But unforeseeable consequences are a much less reliable such window.

Posted by: Chris | Feb 21, 2008 2:02:59 PM

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