In his paper, Why the Successful Assassin Is More Wicked than the Unsuccessful One, Leo Katz "pick[s] up the gauntlet [Sandy] Kadish throws down" to offer a nonconsequentialist justification for giving significance to resulting harm and, in particular, to justify the common practice of punishing attempts less than the completed offense. In one sense, I may not be the ideal person to serve as critic. I am not one of those who, like Kadish and others, does not believe in the significance of resulting harm in assessing blameworthiness (people whom Katz calls the "luck- skeptics" but to whom I will refer as the "nonbelievers" in the significance of resulting harm).I will try to perform the mental gymnastics of pretending to be a nonbeliever as I evaluate Professor Katz's arguments. As Part I explains, I fear the nonbeliever will be unpersuaded. Whatever the outcome of the debate as Professor Katz presents it, the method of his argument raises issues that I think are just as interesting as its outcome. My social science work, as limited as it is, gives me pause when assessing the argument-by-hypothetical method that Professor Katz uses so ingeniously here (and elsewhere). Relatedly, I have some doubts about using our intuitions in the way Professor Katz would have us use them here (and elsewhere), or at least doubts about whether we can draw from them the kind of conclusions about moral desert that Professor Katz would have us draw. Available for download at http://ssrn.com/abstract=662061
Robinson, Paul H., "Some Doubts About Argument by Hypothetical" (2000). Faculty Scholarship at Penn Law. 45.