Eric Alan Johnson (University of Illinois College of Law) has posted Trust and the Limits of Trust: Rethinking the Doctrine of Novus Actus Interveniens (University of Illinois Law Review, Forthcoming) on SSRN. Here is the abstract:
Should individuals who recklessly or negligently supply guns that later are used by others to perpetrate mass shootings face direct criminal liability for homicide? The primary obstacle to liability in these and other, similar cases is the traditional doctrine of novus actus interveniens, which says that an actor’s conduct won’t count as a legal cause of a result if the causal relationship between the conduct and the result was mediated by a “novus actus” – by another person’s “free, deliberate, and informed” act. Scholars have long argued that this categorical rule is justified by concerns about autonomy and liberty. This Article challenges the traditional understanding. It argues that the intuitions underlying novus actus aren’t really about liberty or autonomy. Rather, they’re about society’s interest in cultivating interpersonal trust. The Article argues that this interest in cultivating interpersonal trust justifies treating results mediated by third-party wrongdoing differently than results mediated by, say, the working of natural causes. The Article argues, however, that neither this nor any other societal interest justifies a categorical rule foreclosing liability for results mediated by third-party wrongdoing. Liability ought to depend, rather, on whether the defendant was justified under the circumstances in trusting the third-party causal intervenor.
Highly recommended.