Today I will be summarizing Kessler’s essay “The Role of Luck in Criminal Law”. Kessler believes that luck has no moral or legal relevance because of the fact that while the outcome of an action might be different, the mens rea is unequivocally the same, and therefore should have no place in criminal law. Kessler uses for an example a driver who plows into a car going over the speed limit. The driver was aware that she was driving recklessly by going over the speed limit, and therefor is held responsible for the act. Kessler then states that if an airplane had crashed on the highway and the car had hit it that the driver would not be held responsible because this was an unforeseeable act. Kessler argues that, “his was too freakish, too absurd, to reasonably blame her for causing. We want to punish the reckless driver for the risk she chose to consciously disregard and not for the risk she did not” (2187). The essay then says that proximate causation, which according t the Cornell Law School Legal Encyclopedia is “An actual cause that is also legally sufficient to support liability”, limits the driver’s culpability. Kessler’s argument relies on the fact that people are“ [rational] being[s] who act[] for intelligible ends in light of rational” (2191). This means that because people are able to understand the law, they should be held to that standard whether or not their actions cause little or great harm. Another example is then brought up, where a defendant is held responsible for devising a spring gun that stopped a would-be intruder. The court states that because the defendant could not account for gun going off on an intruder or a small child, that they should be held accountable for their negligence. Kessler then discusses he types of test used to determine things like this, like the but-for test, the substantial factor test, the NESS and Becht and Miller, and just simply relying on policy. The conclusion of this essay is that luck should be removed from criminal courts, because according to Kessler, “Currently, courts are contorting the doctrine of causation and twisting the idea of intentions in order to avoid fortuity’ (56).
