Wrongful-Aspect Overdetermination: The Scope-of-the-Risk Requirement in Drunk-Driving Homicide.

Research output: Contribution to specialist publicationArticle

Abstract

Tort law's scope-of-the-risk rule says that a defendant is liable for another person's injury only if the injury resulted from the very risks that made the defendant's conduct wrongful. Criminal law scholars have neglected the question whether the scope-of-the-risk rule (or its wrongfulaspect variant) also applies in criminal cases. But the question has divided the courts. In drunk-driving homicide cases, many courts have said that the government must prove a causal nexus between the defendant's intoxication--the wrongful-aspect of his conduct--and the fatal accident. Many others, though, have said the opposite. In this Article, I will argue that courts on both sides of this seeming divide have recognized intuitively: (1) that the scope-of-the-risk rule does apply to drunk-driving homicide cases; but (2) that what is required by way of a causal nexus between the defendant's intoxication and the fatal accident is something less than but-for causation. What is required, specifically, is that the intoxication contribute incrementally to the causal mechanism behind the fatal accident. In effect, the courts have recognized intuitively that most drunk-driving homicide cases are causal-overdetermination cases.
Original languageEnglish (US)
Pages601-645
Number of pages45
Volume46
No2
Specialist publicationConnecticut Law Review
PublisherConnecticut Law Review
StatePublished - Dec 1 2013

Keywords

  • DRUNK driving laws
  • WRONGFUL death -- Lawsuits & claims
  • COURTS -- United States
  • JUDGMENTS (Law)
  • PERSONAL injuries (Law)
  • DEFENDANTS
  • UNITED States

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