First Acts, Last Acts, and Abandonment

Legal Theory 19 (2):114-123 (2013)
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This contribution reconstructs and assesses Gideon Yaffe’s claims in his book Attempts about what constitutes an attempt, what can count as evidence that an attempt has been made, whether abandonment is a genuine defense, and whether attempts should be punished less severely than completed crimes. I contrast Yaffe’s account of being motivated by an intention and the completion of an attempt in terms of the truth of the completion counterfactual with an alternative picture of attempts as temporally extended decision trees that are complete insofar as the agent has progressed toward the final act in the tree. I suggest that this alternative scalar conception of attempt may provide a more plausible account of the defense of abandonment. I also raise questions about whether Yaffe has provided an adequate justification of his mix of luck skepticism about censure and luck realism about punishment.

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David Brink
University of California, San Diego


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