Consumers' Responsibility for Harming Themselves, Etc.

by Sherry F. Colb

In my column for this week on Verdict, part 1 of a 2-part series, I begin analyzing the case of Burrage v. United States, which asks under what circumstances a heroin dealer may be held to have caused the death of his customer for purposes of a federal statute attaching an enhanced mandatory minimum sentence when heroin dealing results in death.  The column first explains different types of factual causation, including "but for" causation and "independent sufficient causation."  Under either of these tests, it appears that the defendant in Burrage should have been acquitted.  The column next discusses the issue of proximate cause, the sort of causation that the law considers adequate to justify the attribution of legal responsibility.

Let us assume that a heroin dealer did in fact cause the death of his customer, because his customer would not have died in the absence of the heroin sold to him by the dealer and did in fact die because he ingested that heroin.  Should the dealer, without more, be held criminally accountable for that death? Part 2 of the series will delve into that question.

Meanwhile, as Professor Dorf noted on this blog, yesterday Cornell Law School hosted a panel discussion on my book, Mind If I Order the Cheeseburger? And Other Questions People Ask Vegans. Although the topic may seem far afield, a chapter in the book does bear on the question in the Burrage case. The chapter is called: "Aren't the Animals Dead Already Anyway?."  Some people agree that it is morally indefensible for people who have other choices to slaughter a living being to turn him or her into a food product but, they say, it is the one who kills the animal -- not the consumer -- who bears moral responsibility for this indefensible conduct. After all, by the time the consumer purchases and eats an animal's flesh, the animal in question is already dead and thus can no longer be harmed by anything the consumer does.

In response to this question/argument, my chapter discusses the nature of supply and demand in a market economy as well as the distinction, if any, between concrete and visible harms (to a known and determinate victim), one the one hand, and abstract and invisible harms (to an unknown and future victim), on the other.  I explain how, more than any vote you might cast as a citizen, the repeated votes you cast as a consumer (or a non-consumer) carry tremendous power.  They either encourage the producer to kill more animals, with the promise of money, or they refuse to provide compensation to farmers and other animal-product "dealers" for the slaughter and torture of living beings.  The purchase of cheese pizza today condemns a mother dairy cow and her infant son to suffering and death tomorrow.  Consumers are accordingly active accomplices in the violence that farmed animals endure, soliciting the violence through their purchases.

Likewise, consumers may bear substantial responsibility when a product causes harm to the consumers themselves, including the harm of premature death.  In the absence of a profound disability that diminishes the moral agency of a consumer (and in the absence of fraudulent representations by the seller), the consumer partners with the producer to bring about whatever harm results from the purchased product, whether that harm be an overdose, in the case of heroin, or premature death from heart disease, diabetes or any of the other illnesses to which a diet based on animal products contributes.

Does any of this mean that I think producers should be able to freely externalize the costs of their business? No.  If you produce a harmful product, then you ought to share in shouldering the inevitable costs that result from the creation and use of that product.  Such sharing might be accomplished by taxing (or fining) businesses that sell products at what are currently artificially low prices (such as flesh and dairy, as you can see in David Robinson Simon's recent book, Meatonomics). It is easy to ridicule the plaintiffs in lawsuits against McDonald's for "making people fat," but the imperative of cost-internalization provides good grounds for resisting a legal regime in which a plaintiff's supposed assumption of risk provides producers and sellers with a complete defense against civil liability.

But imposing prison terms is another matter.  If your victim is a willing participant in his own death, because he knowingly purchased a harmful product from you and then ate that product three times a day for years (or voluntarily injected that product into his veins), then I think it is both insulting to him and unfair to you to criminally punish you with a prison sentence for what you (and he together) did to him.