Ahson Azmat (Notre Dame Law School) has posted When Motive Matters: Formal Causation in the Law on SSRN. Here is the abstract:
When motive matters in determining a defendant’s liability—when their reasons for action mark the difference between permitted and forbidden employment decisions, or school admissions procedures, or coverage for medical services—the Supreme Court has recently reaffirmed the so-called “traditional” model of but-for causation. This model conceives of causation and intention as stand-alone elements, to be evaluated separately from one another. And it assumes that the broader causal inquiry can be satisfied so long as the features, traits, or grounds that the law insulates are a but-for cause of the defendant’s actions.
This is a mistake—one that spells trouble in a landscape brimming with disputes about disparate treatment, equal protection, market manipulation, and other statutory schemes that turn on defendants’ motives. In these contexts, the “demonstrated connection” the Court has demanded be drawn between the plaintiff’s injuries and the defendant’s actions requires a richer explanatory framework than the traditional model can provide. For when motive matters, the law must account for the reasons on which defendants act, not just verify that their actions counterfactually cause plaintiffs’ injuries. Without the capacity to draw this connection, the traditional model lapses into a mismatch between the law’s aims in testing for causation, on the one hand, and the tools with which it tries to do so, on the other. Worse still, it exposes motive-based liability regimes to deviant causation, which is incompatible with bedrock rule-of-law values such as accountability, rationality, and non-arbitrary exercises of legal force.
The Article makes two key contributions. First, it identifies for the first time the structural flaw leading to deviant causation at the heart of the traditional model. Second, it introduces an alternative that focuses on formal rather than efficient causation, centered around an inquiry into defendants’ intentions to identify the demonstrated connection between action and injury. Under this framework, courts attend to the operative premises in the defendant’s deliberations rather than abstruse counterfactuals or politically controversial hypotheticals. The formal cause underwriting these deliberations reveals the determining principle that gives actions their identity—that make them instances of illicit rather than permissible discrimination, for example, or illegal price manipulation rather than natural price discovery. Using equal-protection, disparate-treatment, and market manipulation claims as test cases, the Article shows how the new framework better addresses the law’s explanatory demands while avoiding the threat of deviant causation. The result is a more accurate adjudicative model—not just in corner cases fit for theory, but everywhere motive-based statutes are put into practice.
Recommended.