The Download of the Week is A New and Improved Doctrine of Double Effect: Not Just for Trolleys by Sherry F. Colb. Here is the abstract:
In its standard formulation, the Doctrine of Double Effect (DDE) permits an action that has foreseeable harmful, even dire, collateral consequences, so long as the actor merely foresees but does not intend them and the harms are considered proportional to the benefit. Yet DDE’s critics question the moral distinction between intending a bad outcome, on one hand, and acting in exactly the same way under the same circumstances but merely knowing that the actions will result in the bad outcome, on the other. After all, except in a few narrow circumstances, criminal law in the United States treats purpose and knowledge as equally culpable mental states that each amount to “intent.”
This Article reinterprets and reconstructs DDE to avoid this critique. Properly reimagined, DDE does not depend on an actor’s subjective goal. Instead, it allows an action if one can plausibly identify a permissible goal to explain that action and any resulting harm is proportionate to that permissible goal. However, if the only plausible way to understand a particular action is as the product of an impermissible purpose, then the action is impermissible, and there is then no need to inquire into proportionality. Thus reconceived, DDE helps make sense of how the law resolves problems in a wide range of contexts, including jury nullification, disparate impact race discrimination, and the admissibility of evidence that proves too much. With the notable exception of most prohibitions against intentional discrimination—which control the special context of at-will employment and other at-will settings DDE as reconstructed proves to be a powerful instrument for answering challenging legal questions.
This week, the Download of the Week honors Sherry F. Colb, who has been taken from her family, her colleagues, and the community of legal scholars far too soon.
All of Colb's SSRN papers can be accessed at this link: https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=200880.
