The general problem of moral luck—that responsibility is profoundly affected by factors beyond the control of the person held responsible—is often said to cause special problems for strict liability, as opposed to negligence liability. Negligence, the argument runs, holds people responsible for both fault and fate whereas strict liability holds people accountable solely for fate. This criticism is off the mark, both in its specific claim and in its general implications. The specific criticism is mistaken because the choice between negligence (...) and strict liability holds the contributions of fate constant. Strict liability holds people accountable for harms attributable to their agency, whereas negligence liability holds people accountable for harms attributable to their culpable agency. The more general thesis that strict liability puts agents at the mercy of fate is mistaken because the most important form of strict liability—strict enterprise liability in the law of torts—actually softens the blows of fate. In a world where the costs of accidents can be dispersed across the activities which engender them, strict enterprise liability substitutes certain but manageable insurance premiums for unpredictable but potentially catastrophic liability, and replaces less certain compensation for serious injury with more certain compensation. By subjecting us to a lottery some of whose spins of the wheel impose financial ruin, it is fault liability that puts our actions at the mercy of luck. (shrink)

Some luck, in a decision of Gauguin's kind, is extrinsic to his project, some intrinsic; both are necessary for success, and hence for actual justification, but only the latter relates to un- justification. If we now broaden the range of cases slightly, ...

Originally published: Oxford: Clarendon, 1997.

The following argument is addressed: (1) a person is morally responsible for an event's occurring only if that event's occurring was not a matter of luck; (2) no event is such that its occurring is not a matter of luck; therefore, (3) no event is such that someone is morally responsible for its occurring. Two notions of control are distinguished: restricted and complete. (2) is shown false on the first interpretation, (1) on the second. The discussion involves a distinction between (...) resultant and situational luck, And it is argued that, Even when luck's role in life, And the unfairness that stems from it, Is acknowledged, Moral responsibility remains possible. (shrink)

This Article considers the role of luck in judicial outcomes, stemming from differences in the moral and legal views and reasoning of the judges who decide them. It suggests that luck is ineliminable from a system of positive law and that although it poses important moral problems of unpredictability, arbitrariness, and unfairness, it is not easily remediable. It is certainly not remediable by replacing a system of positive law with a system of adjudication addressing moral issues directly. Nor is it (...) remediable by insisting on integrity as a feature of judicial decision-making. (shrink)

Is there a difference in moral blameworthiness between a murderer and an attempted murderer? Should there be a legal difference between them? These questions are particular instances of the question of moral luck and legal luck (respectively). In this paper, I survey and explain the main argumentative moves within the general philosophical discussion of moral luck. I then discuss legal luck, and the different ways in which this discussion may be related to that of moral luck.

In this Article, I elaborate on and defend the following argument: There is no moral luck. If there is no moral luck, there should be no legal luck. Therefore, there should be no legal luck and ). If there is no normatively significant difference between the law doing and allowing, or intending and foreseeing, then there is no normatively significant difference between legal luck and just plain luck that has legal implications. There is no normatively significant difference between the law (...) doing and allowing, or intending and foreseeing. Therefore, there is no normatively significant difference between legal luck and just plain luck that has legal implications and ). Therefore, plain luck should have no legal implications and ). (shrink)

Contemporary debates about "moral luck" were inaugurated by Thomas Nagel’s celebrated essay on the topic. Nagel notes that the puzzle about moral luck is formally parallel to the familiar epistemological problem of skepticism. In each case, the problem is generated by the apparent coherence of the thought that inner aspects of our lives are self-contained, and can be both understood and evaluated without any reference to anything external. Epistemological skepticism begins with the thought that my thoughts could be exactly as (...) they are without any contact with the world outside, where "exactly as they are" is glossed in terms of the grounds that connect those thoughts with each other and provide the basis for our confidence in them. In the practical case, the problem of moral or legal luck arises from the thought that the only basis we have for evaluating a person’s action is his decision to perform that action. The Kantian and post-Kantian response to epistemological skepticism is not to try to defeat the skeptic on his or her own grounds, but rather to show that there is something wrong in the way the problem is set up. Our ordinary ways of thinking about ordinary things, and other persons, are only in trouble if they rest on an unwarranted inference from something that is more secure. I will engage with legal luck in a parallel way: our ordinary ways of thinking about responsibility are only in trouble if they rest on an unwarranted inference from something more secure. I argue that the concept of a completed wrong is basic to law, and that aspects of human interaction on which luck-skeptics focus — blameworthiness and harm — are derivative. I frame the issue not in terms of moral significance, but rather in terms of the authorization of the state to use force, either to order the payment of damages in tort or to imprison criminals. In the first part of the Article I consider the case of tort liability for negligence, explaining the structure of a completed wrong and the correspondingly derivative significance of carelessness as such. In the second part I turn to the issue of criminal punishment. I offer a brief explanation of the state’s authority to punish, before going on to show that the basic case that engages this authority is the completed crime. I then show why the failed attempt also attracts punishment, even though it is a derivative case. (shrink)

There is a contradiction in our ideas about moral responsibility. In one strand of our thinking, we believe that a person can become more blameworthy by luck. Consider some examples in order to make that idea concrete. Two reckless drivers manage their vehicles in the same way, and one but not the other kills a pedestrian. Two corrupt judges would each freely take a bribe if one were offered. By luck of the courthouse draw, only one judge is offered a (...) bribe, and so only one takes a bribe. Luck is the salient difference between the agents in each case. After all, the spatial location of the pedestrian is outside of each driver’s control, and being offered a bribe is outside of each judge’s control. But we blame the killer driver more than the merely reckless driver, and we blame the bribe-taker more than the mere would-be bribe-taker. This is because we believe that the killer driver and the bribe-taker are more blameworthy than each of their counterparts. Nevertheless, the idea that luck affects moral responsibility contradicts another feature of our thinking captured in this moral principle: A person’s blameworthiness cannot be affected by that which is not within her control. This moral principle yields the verdict that the drivers are equally blameworthy and that the judges are equally blameworthy. So, to put the contradiction in concrete terms, our thinking about moral responsibility implies that the drivers are and are not equally blameworthy, and the same is true for the judges. -/- I argue that only the first strand of our thinking is correct. Certain kinds of luck in results, circumstances, and character can partially determine a person’s praiseworthiness and blameworthiness. In terms of the examples, I argue that the killer driver and the bribe-taker are more blameworthy than each of their counterparts. But if I am to make genuine progress in the moral luck debate, my arguments cannot appeal to case intuitions such as ‘the killer driver is more blameworthy,’ because the problem of moral luck is fundamentally a clash of intuitions. So, I offer arguments from diverse areas in philosophy in order to ensure that they do not bottom out in standard pro-moral luck intuitions. (shrink)

Only paperback edition of great legal classic. Lucid, accessible coverage of liability, criminal law, torts, contracts, more, from historical perspective. New introduction by Sheldon M. Novick. Table of Cases.