Eric A. Johnson

Document Type



Tort law’s scope-of-the-risk rule says that a defendant is liable for another person’s injury only if the injury resulted from the very risks that made the defendant’s conduct wrongful. Criminal law scholars have neglected the question whether the scope-of-the-risk rule (or its wrongfulaspect variant) also applies in criminal cases. But the question has divided the courts. In drunk-driving homicide cases, many courts have said that the government must prove a causal nexus between the defendant’s intoxication—the wrongful-aspect of his conduct—and the fatal accident. Many others, though, have said the opposite. In this Article, I will argue that courts on both sides of this seeming divide have recognized intuitively: (1) that the scope-of-the-risk rule does apply to drunk-driving homicide cases; but (2) that what is required by way of a causal nexus between the defendant’s intoxication and the fatal accident is something less than but-for causation. What is required, specifically, is that the intoxication contribute incrementally to the causal mechanism behind the fatal accident. In effect, the courts have recognized intuitively that most drunk-driving homicide cases are causal-overdetermination cases.