Cause-in-Fact After Burrage v. United States
What significance, if any, should state courts assign to the U.S. Supreme Court’s unanimous 2014 decision in Burrage v United States? In Burrage, the Supreme Court relied on “ordinary meaning” and “traditional understanding” in concluding that causation elements in federal criminal statutes nearly always require so-called “but-for” causation. State courts, by contrast, traditionally have applied two important modifications to the but-for test: (1) an acceleration rule, which assigns liability to defendants who hasten “even by a moment” the coming to fruition of the proscribed harm; and (2) a contribution rule, which assigns liability to defendants who “contribute” incrementally to the underlying causal mechanism. This Article defends the state courts’ approach. It argues that the acceleration rule and the contribution rule both are necessary to address cases where the but-for test fails to capture ordinary usage. Specifically, these supplementary rules are necessary to address cases of spurious, or preempted, causal sufficiency and cases of causal overdetermination.