April Responses

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PENNumbra’s featured works are now available at www.pennumbra.com. This issue contains responses to two articles from the print edition of the Law Review.

John Gardner and R.A. Duff both respond to Michael S. Moore’s Causing, Aiding, and the Superfluity of Accomplice Liability. In his article, Professor Moore rejects the notion that a separate desert basis must be created for accomplice liability, by focusing on the actus reus of accomplice liability and asking “what does one have to do in order to be an accomplice to someone else’s crime?”

Professor Gardner, in his Response, Moore on Complicity and Causality, notes that, though he and Professor Moore agree “that causal wrongs exist,” they “part company [when they] turn to the question of which moral and legal wrongs are causal wrongs.” Gardner argues that “the wrongs of accomplices are all causal wrongs,” in that “aiding, abetting, and counseling are all straightforward ways of making a causal contribution to the wrongs that are aided, abetted, or counseled.” Gardner argues for a view of accomplice liability that incorporates “causal pluralism,” or that “causing something is not the only way of making a causal contribution” to an outcome. Human agency, Gardner asserts, involves a causal complexity that is “not visible to the experimental sciences,” and that this difference “explains both the significance and the importance of causal contributions that are distinguished, causally distinguished, with respect to their directedness and indirectedness.” He concludes that “the types of causal contributions made by accomplices to and through the acts of their principals vary” in ways that Moore’s account fails to provide for.

Professor Duff, in his Response, Is Accomplice Liability Superfluous?, explores the “third and fourth desert bases Moore identifies” and argues “that there is still some room for a distinctive doctrine of complicity and thus for accomplice liability as a distinctive type of liability.” Duff focuses on the mens rea of accomplice liability, specifically that of intentionality and foresight, and ultimately claims “that, even if all that Moore says about the actus reus is right, it does not warrant his conclusion” that there is no unique desert basis for accomplice liability.

Responding to Barak D. Richman’s Antitrust and Nonprofit Hospital Mergers: A Return to Basics, James F. Blumstein examines Professor Richman’s account under the two different “ways of thinking about the product and the industry – the traditional professional/scientific and the market-oriented model.” Professor Blumstein, in his Response, Antitrust Enforcement in the Health Care Industry: A Battleground of Competing Paradigms, describes the history of the struggle between these two paradigms, in the industry and in the courts, and how the “[a]pplication of the antitrust laws to the greater healthcare marketplace has . . . contributed toward a greater emphasis on the market-oriented paradigm,” leading to “push back in antitrust doctrine . . . in the context of judicial hostility to applying traditional antitrust orthodoxy to some components of health care.” Recognizing that the health care industry developed according to the professional/scientific model, Blumstein emphasizes Richman’s assertion that antitrust doctrine can play a “constructive role” in the context of hospital mergers, by “build[ing] accountability into an economic sector that has inadequate accountability mechanisms.” Blumstein concludes that “[a]ntitrust doctrine does not necessarily stand in the way of nonprofit hospitals that seek to merge, but it imposes an analytical metric that focuses on competition and efficiency.”

As always, please click on the PENNumbra link to read previous Responses and Debates, or to check out pdfs of the Penn Law Review’s print edition articles.

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