Mike C. Materni has posted Rebooting the Discourse on Causation in the Criminal Law: A Pragmatic (and Imperfect) Approach (Criminal Law Bulletin, Volume 50 Issue 6, Winter 2014) on SSRN.
Here is the abstract:
Causation in the criminal law is an extremely complex issue for several reasons. Prime among those reasons is the fact that most scholars who have tackled the issue have done so by searching for a universal, comprehensive solution. This Article starts from the premise that such a solution is unattainable. Rather than embarking in extravagant philosophical inquiries, the Article offers a pragmatic solution to the issue of causation in the criminal law. Applying a methodology that finds validation in the philosophy of science, the Article argues that causation in the criminal law should be constructed in functional terms. Linking the concept of cause to its function within the criminal law, the Article maintains that “cause” should be informed to the idea of necessity, not sufficiency — nor any other idea of “cause,” no matter how strong or even better that idea might be from the perspective of metaphysics. The proposal advanced in this Article, while necessarily imperfect, gives coherence to a concept (that of but for cause) that, as of today, has been thought to be faulty and flawed to the point of inadequacy. Only by understanding causation within this framework it will be possible to move past the flawed dichotomy of “cause in fact” and “proximate cause” and focus on the more delicate policy issues that relate to culpability. While it is not the Article’s goal to be the last word on the subject — indeed, the Article expressly aims to be an initial building block — the Article does clarify several basic (and yet, until now, somewhat obscure) concepts that relate to causation in the criminal law, thus raising the level of discourse and providing a stronger foundation for further debate on the subject.