1. Michael S. Moore, Causation and Responsibility: An Essay in Law, Morals, and Metaphysics (2009).

2. Schaffer, Jonathan, Disconnection and Responsibility, 18 Legal Theory 399–435 (2012)CrossRefGoogle Scholar. Page references in the text of this section will be to Schaffer's review in this issue.

3. Talmud, quoted in Fischer, John Martin, Ravizza, Mark & Copp, David, Quinn on Double Effect: The Problem of “Closeness,” 102 Ethics 707–725 (1993)CrossRefGoogle Scholar, at 707.

4. Schaffer, Notably Jonathan, Causes Need Not Be Physically Connected to Their Effects: The Case for Negative Causation, in Contemporary Debates in Philosophy of Science (Hitchcock, Christopher ed., 2004)Google Scholar.

5. A costly demise indeed. See Michael Moore, Act and Crime: The Implications of the Philosophy of Action for Criminal Law (1993); Moore, Michael, Renewed Questions about the Causal Theory of Action, in Causing Human Action: New Perspectives on the Causal Theory of Action (Aguilar, Jesus and Buckareff, Andrei eds., 2010)Google Scholar.

6. Moore, Causation, supra note 1, at 454–455, 457, 461–466.

7. Id., ch. 18.

8. Id. at 454–455, 458–459, 461–466.

9. I henceforth use “events” to designate either events or the finer-grained states of affairs. Although in many contexts the distinction between them as causal relata is important—thus Moore, Causation, supra note 1, chs. 14 and 15, deals with the differences between them at length—in the present context I do not need the distinction.

10. Id. at 461: There can be “closeness of the state caused (by the act of double-prevention) to one of two things: either to the state causing the harm, or to the harm itself.”

11. Id. at 462.

12. The problem is usually traced to someone I am pleased to acknowledge as my first teacher in ethics: the late Philippa Foot. See Foot, Philippa, The Problem of Abortion and the Doctrine of Double Effect, 5 Oxford Rev.5–15 (1967)Google Scholar. Foot's intuitive view of closeness is discussed below.

13. See Michael Moore, Individuating Intentions, a paper given in 1980 at Stanford University and later both at University of Southern California and at the Eightieth Birthday Celebration for Herbert Hart in Jerusalem in 1984. A shorter version of the paper was published as Moore, Michael, Intention and Mens Rea, in Issues in Contemporary Legal Philosophy: Essays in Honour of H.L.A. Hart (Gavison, Ruth ed., 1987)Google Scholar, reprinted in Michael Moore, Placing Blame: A General Theory of the Criminal Law (1997). I repeat the example in Moore, Causation, supra note 1, at 462.

14. Moore, Causation, supra note 1, at 48–49. See also Moore, Michael, Intention as a Marker of Moral Responsibility and Legal Punishability, in The Philosophical Foundations of Criminal Law (Duff, Antony & Green, Stuart eds., 2011)Google Scholar.

15. Moore, Causation, supra note 1, ch. 18.

16. Id., ch. 3.

17. There are two versions of this response: a skeptical version and an optimistic version. The skeptical version says, “so much the worse for morality if it tries to mark this distinction.” See, e.g., Hull, Richard, Deconstructing the Doctrine of Double Effect, 3 Ethical Theory & Moral Prac. 195–207 (2000)CrossRefGoogle Scholar. The optimistic version, although also giving up on the intend/foresee distinction, thinks that the moral work such distinction was trying to do can be done by some other distinction. The best-known example here is that of my friend and former colleague, the late Warren Quinn. See Quinn, Warren, Actions, Intentions, and Consequences: The Doctrine of Double Effect, 18 Phil. & Pub. Aff. 334–351 (1989)Google ScholarPubMed. Quinn's substituted distinction—between “direct” and “indirect” agency—is critically examined in Fischer et al., supra note 3; Woodward, P.A., The Importance of the Proportionality Condition to the Doctrine of Double Effect: A Response to Fischer, Ravizza, and Copp, in The Doctrine of Double Effect (Woodward, P.A. ed., 2001)Google Scholar; McMahan, Jeff, Revising the Doctrine of Double Effect, 11 J. Applied Phil. 201–212 (1994)CrossRefGoogle Scholar; Mapel, David, Revising the Doctrine of Double Effect 18 J. Applied Phil. 257–272 (2001)CrossRefGoogle Scholar. By analogy, I classify Phil Dowe as an optimist about the moral consequences of the counterintuitive applications of the cause/counterfactual dependence distinction, for Dowe substitutes another relation—“quasi-causation”—to fill in for real causation in supporting moral blame for beheadings and the like. See Phil Dowe, Physical Causation (2000); Dowe, Phil, A Counterfactual Theory of Prevention and “Causation” by Omission, 79 Austl. J. Phil. 216–226 (2001)CrossRefGoogle Scholar; Dowe, Phil, Absences, Possible Causation, and the Problem of Non-Locality, 91 Monist 23–40 (2008) (symposium issue on singularist causation, Moore, M. ed.)Google Scholar; Dowe, Phil, Moore's Account of Causation and Responsibility, and the Problem of Omissive Overdetermination, 3 Jurisprudence (2012)Google Scholar (symposium issue on Moore, Causation, supra note 1).

18. Herbert Hart goes some distance down this road in Hart, Herbert, Intention and Punishment, 5 Oxford Rev.15–22 (1967)Google Scholar, holding that morally speaking there is nothing to the distinction between intending and foreseeing. For discussion of the stronger view (more akin to Schaffer's on the cause/counterfactual distinction), namely, that to foresee in cases we call “close” is to intend, see Delaney, Neil, Two Cheers for “Closeness”: Terror, Targeting, and Double Effect, 137 Phil. Stud. 335–367 (2008)CrossRefGoogle Scholar, at 342 (discussing this as the “package deal.”). For an apparent example of this view, see Sellars, Wilfrid, Thought and Action, in Freedom and Determinism (Lehrer, Keith ed., 1960)Google Scholar, at 134.

19. Moore, Causation, supra note 1, at 47.

20. Id. at 556–561.

21. Id. at 560.

22. Explored at length in Moore, Act and Crime, supra note 5, ch. 14.

23. See id. at 365, 380–381 (five quick shots in succession may be considered one unit of the offense of shooting into an unoccupied dwelling).

24. See id. at 293–301.

25. See Jonathan Bennett, The Act Itself (1995), at 207.

26. Relied on by me in other contexts. See Moore, Act and Crime, supra note 5, at 393–301; Moore, Causation, supra note 1, at 556–561.

27. My fellow theoretician of the criminal law, Antony Duff, once made an attempt in this direction: “‘Brown is decapitated but survives’ does not specify an intelligible possibility, since it is part of the logic of our concept of ‘human beings’ that decapitation kills them: if we could imagine a being who was not killed by decapitation, that would not be a human being.” Duff, R.A., Rea, Mensand the Law Commission Report, Crim. L. Rev. 147–160 (1980)Google Scholar, at 153.

28. See Fitzpatrick, William, The Intend/Foresee Distinction and the Problem of “Closeness,” 128 Phil. Stud. 585–617 (2006)CrossRefGoogle Scholar.

29. One reading of Hart, supra note 18.

30. I criticize one version of such a moral connection in Moore, Intention and Mens Rea, supra note 13. For defense of another (and more sophisticated) moral criterion of closeness, see Wedgwood, Ralph, Defending Double Effect, 24 Ratio 384–401 (2011)CrossRefGoogle Scholar.

31. Hills, Alison, Defending Double Effect, 116 Phil. Stud. 133–152 (2003)CrossRefGoogle Scholar; Hills, Alison, Intentions, Foreseen Consequences, and the Doctrine of Double Effect, 133 Phil. Stud. 257–283 (2007)CrossRefGoogle Scholar. This strategy in the intention literature has no analogue for the cause/double prevention distinction. Alison Hills concedes that one can literally intend to decapitate and not intend to kill; yet she denies that in fact hardly anyone who intends the former does not also intend the latter. (This, because of Hills’ intention holism, which makes death a part of people's plans even when, strictly speaking, such deaths are not necessary for the ends pursued.) This strategy is plausible for mental states, because there we are dealing with representations of events and not events themselves. For the cause/double prevention distinction, we have no such representational holism available to us.

32. Sellars, supra note 18, at 113.

33. Moore, Intentions and Mens Rea, supra note 13. For another negative survey of some of these possibilities as well as others, see Bennett, supra note 25, at 203–213.

34. Hart, supra note 18.

35. Foot, supra note 12.

36. Bennett, supra note 25, at 213. By “inconceivable,” I take it that Bennett does not mean what Vizzini, the Sicilian criminal mastermind, means in the Rob Reiner film, The Princess Bride.

37. Delaney, supra note 18, at 341 .

38. Bennett, supra note 25, at 213.

39. Delaney, supra note 18, at 348–349 .

40. See Fitzpatrick, supra note 28, at 606, where he concedes vagueness and indeterminacy to his own (constitutive) notion of “closeness” but also sees that this does not “undermine the interest or usefulness” of the concept.

41. I discuss problems with Lewis's similarity metric for closeness of possible worlds, in Moore, Causation, supra note 1, at 387–390.

42. In this I take some comfort from the fact that (for a time at least) Tom Nagel also acknowledged his lack of any very satisfying solution to this “problem of application” of the intent/foresight distinction but chose to maintain his moral use of the distinction despite the unresolved problem of closeness. Thomas Nagel, The View from Nowhere (1986), at 179. Likewise, David Lewis concedes that his notion of closeness (or “overall similarity”) is “vague—very vague.” Yet Lewis thinks that we do make judgments in terms of it and that “however mysterious that notion may be . . . we can analyze counterfactuals in terms of it.” David Lewis, Counterfactuals (1973), at 92.

43. As does Phil Dowe with his notion of “quasi-cause” (Dowe, Physical Causation), and as does more clearly Ned Hall with his explicit causal dualism. Hall, Ned, Two Concepts of Causation, in Causation and Counterfactuals (Collins, John, Hall, Ned & Paul, Laurie eds., 2004)Google Scholar.

44. Moore, Causation, supra note 1, at 367–368.

45. “Doing versus allowing” in what I call its strict sense. Id. at 61–65.

46. In none of his work (to my knowledge) does Schaffer acknowledge the moral power of the causing/(true) allowing distinction. Instead, he asserts broadly that “disconnections create (full-fledged) moral responsibility for their outcomes.” Schaffer, Disconnection, supra note 2, at 410. No they do not. I argue in Moore, Causation, supra note 1, that the actual Judge Tally, who countermanded (and thus prevented) the sending of a warning telegram (that would have prevented the death of the victim Ross, who was about to be attacked by the Skeltons), was less responsible for Ross's death than the Skeltons, who shot Ross. But passing this, surely the hypothetical Judge Tally who was the one who sent the original warning telegram (and then countermanded the delivery of that telegram because of second thoughts) had no greater responsibility than anyone else who did nothing at all to save Ross when they could. True allowings, like omissions, demand attention from those in Schaffer's position, but they have not received it so far.

47. Hitchcock, Christopher, The Metaphysical Bases of Liability: Commentary on Michael Moore's Causation and Responsibility, 42 Rutgers L.J. 377–404 (2011)Google Scholar.

48. Ferzan, Kimberly, The Unsolved Mysteries of Causation and Responsibility, 42 Rutgers L.J. 347–375 (2011)Google Scholar.

49. Moore, Causation, supra note 1, at 403–409 (backtracking); and id. at 400–403 (epiphenomena).

50. Moore, Michael, Causation Revisited, 42 Rutgers L.J. 450–509 (2011)Google Scholar.

51. On the conditionalist, possible-world sense of ability I have in mind, see Moore, Michael & Hurd, Heidi, Blaming the Awkward, the Stupid, the Weak, and the Selfish: The Culpability of Negligence, 5 Crim. L. & Phil. 147–198 (2011)Google Scholar.

52. I discuss Paralyzed Patriot in Moore, Michael, Libet's Challenge(s) to Responsible Agency, in Conscious Will and Responsibility: A Tribute to Benjamin Libet (Sinott-Armstrong, Walter & Nadal, Lynn eds., 2010)Google Scholar.

53. Moore, Causation, supra note 1, at 401.

54. Gideon Yaffe, Comment on Moore, given at the Stanford Technology Law Review 2009 Symposium on Neuroscience and the Law, Stanford Law School, February, 2009.

55. Joel Feinberg joined me in disdaining the arguments of our predecessors on this issue. See the paper given on the occasion of Feinberg's retirement, Feinberg, , Equal Punishment for Failed Attempts: Some Bad But Instructive Arguments against It, 37 Ariz. L. Rev. 117–133 (1995)Google Scholar, at 122: The “arguments are subtle. . . . What puzzles me is how bad many of them are.”

56. Moore, Causation, supra note 1, at 444–451, 453–459, 460–467.

57. This is unfortunate, for I am far from alone in finding the metaphysical intuition of difference between causing a harm and failing to prevent a harm and the lack of any distinction in omission cases between preemptive and concurrent overdetermination both fecund grounds for generating insights about causation. On the first, see Dowe, Physical Causation, supra note 17; See also Stephen Mumford's straightforward statement of the intuition of difference: “Moore is perfectly right to say that omissions are not causes. . . . An omission is an absence of cause and absences are not causes.” Mumford, Stephen, Causes forLaws, 3 Jurisprudence (2012)Google Scholar. On the second, see Hitchcock, supra note 47. On both, see Dowe, Moore's Account, supra note 17. The literature on Schaffer's side of the fence on the second of these issues should not prove very reassuring to him. In addition to Hitchcock, Richard Wright has long thought he could detect preemptive (v. concurrent) relations in cases of two or more omissions, each of which is sufficient to guarantee that the harm would occur. See Wright, Richard W., Causation in Tort Law, 73 Calif. L. Rev. 1735–1828 (1985)CrossRefGoogle Scholar, at 1801; Wright, Richard W., Once More into the Bramble Bush: Duty, Causal Contribution, and the Extent of Legal Responsibility, 54 Vand. L. Rev. 1071–1132 (2001)Google Scholar, at 1801; Wright, Richard W., Acts and Omissions as Positive and Negative Causes, in Emerging Issues in Tort Law (Neyers, J.W.et al. eds., 2007)Google Scholar, at 304; Wright, Richard W., The NESS Account of Natural Causation: A Response to Criticisms, in Perspectives on Causation 285–322 (Goldberg, Richard ed., 2010)Google Scholar. Sympathetic to Wright's view here is Steel, Sandy, Review of Causation and Responsibility, 126 Law Q. Rev. 176–180 (2010)Google Scholar. Yet most legal theorists (including myself) find Wright's intuitions about his own cases unmotivated and, indeed, unintelligible. See, e.g., Fischer, David A., Causation in Fact in Omission Cases, Utah L. Rev. 1335–1384 (1992)Google Scholar, at 1357–1359; Fischer, David A., Insufficient Causes, 94 Ky. L.J. 277–310 (2006)Google Scholar; Stapleton, Jane, Choosing What We Mean by “Causation” in the Law, 73 Mo. L. Rev. 433–480 (2008)Google Scholar; Spector, Horacio, The MMTS Analysis of Causation, in Perspectives on Causation 339–359 (Goldberg, Richard ed., 2010)Google Scholar. For my answers in written form, see Moore, Causation Revisited, supra note 50, and given orally, in a formal debate on this topic with Richard Wright at Bonn University on May 27, 2011.

58. Compare Mumford, supra note 57; Braham, Matthew & van Hees, Martin, Degrees of Causation, 71 Erkentnis 323–444 (2009)CrossRefGoogle Scholar; and Hitchcock, supra note 47, all of whom are intrigued by the suggestion. More dubious are Beebee, Helen, Legal Responsibility and Scalar Causation, 3 Jurisprudence (2012)Google Scholar; Alexander, Larry & Ferzan, Kimberly, “Moore or Less” Causation and Responsibility, 6 Crim. L. & Phil. 81–92 (2012)Google Scholar; and Sartorio, Carolina, Michael S. Moore's Causation and Responsibility, 119 Mind 830–838 (2011)CrossRefGoogle Scholar (book review).

59. A charge on which Helen Beebee presses me. Beebee, supra note 58.

60. Mumford, supra note 57.

61. One might see Gideon Yaffe's “active with respect to” as the kind of account which Schaffer seeks. Yaffe, Gideon, Moore on Causing, Acting, and Complicity, 18 Legal Theory 437–458 (2012)CrossRefGoogle Scholar. Yet this account is also very thinly developed, as I argue below.

62. State ex rel Attorney General v. Tally, 102 Ala. 25, 15 So. 722 (1894).

63. E.g., Mumford, supra note 57.

64. Bonn University, May 27, 2011.

65. Moore, Causation, supra note 1, at 52–55, 436–444; Moore, Act and Crime, supra note 5, at 22–34, 54–59, 267–278; Moore, Placing Blame, supra note 5, at 262–277.

66. Moore, Causation, supra note 1, at 438 n.23: “There are of course circumstances where the absence of some property is so surprising or so uniquely true of some event that we pick it out by such absence.”

67. Id. at 442–444.

68. J.L. Austin, A Plea for Excuses, 57 Proc Arist Soc 1 (1957).

69. Id. at 295–299.

70. Id., p. 7

71. Yaffe, Moore on Causing, supra note 61, at 441.

72. Quinn, supra note 17.

73. Moore, Act and Crime, supra note 5.

74. G.E.M. Anscombe, Intention (2d ed. 1963), at 84.

75. Moore, Act and Crime, supra note 5, ch. 6.

76. Freedom and Responsibility (Herbert Morris ed., 1961), at 160.

77. Like Anglo-American criminal law (with its separate requirements of actus reus and mens rea to make up a prima facie case for criminal liability), I and many other moral philosophers (such as John Gardner, the late Bob Nozick, Heidi Hurd, etc.) think that blameworthiness consists of two distinct components, wrongdoing and culpability, and that acting only goes to the first. See, e.g., Moore, Placing Blame, supra note 5, at 191–193, 403–404. Yaffe's “active with respect to,” by contrast, includes both wrongdoing and culpability, which to us standard moral theorists looks like adding confusion, not reducing it.

78. Gardner, John, Moore on Complicity and Causality, 156 U. Pa. L. Rev. 432–443 (2008)Google Scholar; relied on in Yaffe, Moore on Causing, supra note 61, at 445–449.

79. Moore, Causation and Responsibility, at 6–7

80. Moore, Causation, supra note 1, at 8–14.

81. Kadish, Sanford, Causation and Complicity: A Study in the Interpretation of Doctrine, 73 Cal. L. Rev 323–410 (1985)CrossRefGoogle Scholar.

82. Moore, Causation and Responsibility, at 9

83. Anscombe, Intention, supra note 74, at 85–87.

84. Moore, Act and Crime, supra note 5, at 198–199.

85. Alvin Goldman, A Theory of Human Action (1970); Yaffe, Moore on Causing, supra note 61, at 455.

86. Even here, the claim is only plausible, not true in all cases. Suppose x, my germ-conscious kisser, is himself a paraplegic; yet he finds himself hooked up to a mind-brain interface machine that reads his attempts to move his limbs; such machine then moves the other paraplegic (z) into the kiss position, and thrusts z's lips onto the body of y; x knows how the machine works and intends to use it to effect lip contact of z with y. By my lights, x has kissed y (been active with respect to lip contact on the body of y, substantially caused lip contact on the body of y), even though his intention to do so does not exclude use of another's body.

87. Gardner, John, Wrongdoing by Results: Moore's Experiential Argument, 18 Legal Theory 459–471 (2012)CrossRefGoogle Scholar, at 460.

88. Moore, Michael, The Moral Worth of Retribution, in Responsibility, Character, and the Emotions (Schoeman, Ferdinand, ed., 1984)Google Scholar, rev'd and reprinted as ch. 3 of Moore, Placing Blame, supra note 5.

89. Moore, Placing Blame, supra note 5, at 45–60, 191–193, 405–419.

90. Id.

91. Explored at length in Moore, Michael, Moral Reality Revisited, 90 Mich. L. Rev. 2424–2533 (1992)CrossRefGoogle Scholar, reprinted in Michael Moore, Objectivity in Ethics and Law (2004).

92. Moore, Placing Blame, supra note 5, at 228.

93. Moral subjectivists are discussed in Moore, Michael, Moral Reality, Wis. L. Rev. 1061–1156 (1982)Google Scholar, at 1075–1077, reprinted in Michael Moore, Objectivity in Ethics and Law (2004).

94. See id. at 1079–1086.

95. The classic separation of “contexts of discovery” from “contexts of justification” is in Hans Reichenbach, Experience and Prediction (1938), at 4–5. See also Israel Scheffler, Science and Subjectivity (1967), at 68–73.

96. Moore, Placing Blame, supra note 5, at 130–132.

97. Id. at 132.

98. The “privileged access” we each have to the contents of our own mental states is explored in Michael Moore, Law and Psychiatry: Rethinking the Relationship (1984), at 254–265.

99. Moore, Causation, supra note 1, at 31.

100. Moore, Placing Blame, supra note 5, at 132–138.

101. Id. at 135.

102. Id. at 135–136.

103. Id. at 692–694, 700–701; Moore, Causation, supra note 1, at 65–68.

104. Re A, [2001] Fam. Ct. (Court of Appeals of England and Wales), [2000] 4 All E R 961.

105. Joe Simpson, Touching the Void (1988).

106. See Moore, Law and Psychiatry, supra note 98, at 107–108.

107. Moore, Placing Blame, supra note 5, at 147.

108. The usual aretaic categories are the supererogatory, the suberogatory, the quasi-erogatory, and the indifferent. See Moore, Michael, Liberty and Supererogation, 6 Ann. Rev. L. & Ethics 111–143 (1998)Google Scholar.

109. Moore, Placing Blame, supra note 5, at 137.

110. Moore, Causation, supra note 1, at 411–412, 486–495.

111. Chris Hitchcock also concerns himself with my treatment of omissive-overdetermination cases, but Hitchcock's concern is the metaphysical question of whether one can make out a preemptive/concurrent distinction between classes of these cases. Hitchcock, supra note 47.

112. Sartorio, Carolina, Two Wrongs Do Not Make a Right: Responsibility and Overdetermination, Legal Theory 18 (2012) 473–490CrossRefGoogle Scholar, at 474.

113. In addition to the sources cited by Sartorio, see also Zimmerman, Michael, Luck and Moral Responsibility, 97 Ethics 374–386 (1987)CrossRefGoogle Scholar, at 383: “The successful driver [who causes death to a pedestrian] is to blame for more events than the unsuccessful one . . . but this does not imply that he is to be evaluated negatively to a greater extent than is the unsuccessful driver.”

114. See, e.g., Moore, Placing Blame, supra note 5, at 206: “nothing of moral relevance follows from this linguistic truth.”

115. I note Dowe's intuitions on this issue, expressed by him in response to a talk I gave at the University of Queensland in 2008, in Moore, Causation, supra note 1, at 450 n.54. Dowe expounds further on his view in Dowe, Moore's Account, supra note 17.

116. Moore, Causation, supra note 1, at 450 n.53.

117. Goldman, Alvin, Why Citizens Should Vote: A Causal Responsibility Approach, 16 Soc. Phil. & Pol'y 201–217 (1999)CrossRefGoogle Scholar, reprinted in Responsibility (E.F. Frankel-Paul et al. eds., 1999).

118. Moore, Causation, supra note 1, at 450–451.