A few days ago I wrote about the first session of a class applying talmudic reasoning to modern legal cases. The first class covered cases of unintended benefit: somebody, in the process of committing a crime, accidentally causes benefit to the victim -- does he deserve leniency? I noted that the class gives CLE credits and wondered in passing how that worked; why would the American Bar Association care about Jewish law, interesting as it is?

I've now had a chance to read an essay that was an appendix to the class materials, and that essay did a good job of drawing connections. I also learned a new term from it, "moral luck", which I gather is a term of art in some circles. (I'm not sure why "moral" exactly.) Example: a driver recklessly races down the road and hits a pedestrian. Another driver, equally reckless and speedy, almost hits a pedestrian but the pedestrian manages to jump out of the way. In both cases the drivers had the same intent and behavior; it's only that the second one got lucky and didn't hit anybody. But even though the drivers were the same, one will be punished much more severely than the other; the one who didn't hit anybody benefited from "moral luck".

We saw this in the case of the fisherman who saves a child from drowning. The sages in the talmud disagree about whether he is nonetheless liable for violating Shabbat (he didn't even know about the child so had no intent to save him); later the halacha is determined as I described in the previous post.

The essay then contrasts this with how US criminal courts operate. Courts deal in crimes, the author notes, and not primarily in outcomes (caveats to follow). It notes that in criminal law the interested party is the state; criminal law doesn't much care about victims per se. Because a criminal case is prosecuted on behalf of the whole community (bundled up into the state), a positive outcome for the victim isn't very important. Laws are about establishing the rules of society, in which smashing car windows to steal laptops from inside just isn't ok. (Smashing a car window because you saw the dog that was going to die from heatstroke is different, and not addressed.)

However, the essay goes on to note, prosecutors have discretion in whether to bring charges and which charges to bring. Further, there is wiggle room come sentencing time (assuming a conviction), and victim impact statements are often allowed.

While it appears that intent is secondary to action -- we prosecute for what people do, not what people want to do, and that's how the one reckless driver evades penalties -- the concept of punishing intention isn't absent from American law. We have laws about "hate crimes", which is purely a matter of judging intent. (I have, I think, written in the past about how I think these well-intentioned laws are nonetheless flawed. Thought-crime laws give me pause, and laws that seem to value different victims of the same crimes differently seem pretty iffy to me. But they're a thing, and they're a thing that's probably not going to go away.)

That's all about criminal law. The essay then turns to torts, which are between people (not the state) and involve the payment of damages. It uses the legal principle of "reasonable foreseeability" to argue that the thieves get no leniency for saving the dog because they didn't reasonably know about the dog, but then contrasts this analysis with the "eggshell skull" case, in which if you accidentally gravely injured/killed someone because of his unusual medical state (which you could not foresee) when you only meant to hurt him a little, you're held liable nonetheless. It appears that under American law you can't benefit but can be liable if consequences are not foreseeable.

The essay, written for the class and with many citations, is by Menachem Sandman, an attorney from New Haven, CT.

It's possible, perhaps probable, that the lawyers taking this class for CLE credits knew all that already, but a lot of it was new to this non-lawyer and I'm glad to have the additional context. It looks like each lesson has an accompanying essay of this sort -- cool!

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