Sherry Colb's Penultimate Article: Reconceptualizing Double Effect
by Michael C. Dorf
Last week the Connecticut Law Review published an article on the doctrine of double effect (DDE) that Sherry Colb wrote before she passed away last August. Titled A New and Improved Doctrine of Double Effect: Not Just for Trolleys, the article makes important contributions to both moral philosophy and law. By reconceptualizing DDE as properly focused on objectively permissible possible intentions rather than actual subjective intentions, the article renders DDE defensible as against common critiques (especially that of T.M. Scanlon). Sherry shows that DDE as she reconceptualizes it plays a much larger role in extant law than commonly appreciated.
Here's the abstract:
In its standard formulation, the doctrine of double effect (DDE) permits an action that causes foreseeable and harmful, even dire, collateral consequences, so long as the actor merely foresees but does not intend them and the harms are proportional to the benefit. Yet DDE’s critics question the moral distinction between intending a bad outcome, on one hand, and merely knowing that the actions will result in the bad outcome but acting in exactly the same way, on the other. After all, except in a few narrow circumstances, criminal law in the United States treats intent and knowledge as equally culpable mental states that each amount to “intent.”
This Article reinterprets and reconstructs DDE to avoid this critique. Properly reimagined, DDE does not depend on an actor’s subjective intentions. Instead, it allows an action if one can plausibly identify a permissible intention that could explain that action and any resulting harm is proportionate to the expected benefit from the action. However, if the only plausible way to understand a particular action is as the product of an impermissible intention, then the action is morally impermissible, and there is then no need to inquire into proportionality. Thus reconceived, DDE helps make sense of how the law resolves problems in a wide range of contexts, including jury nullification, disparate impact race discrimination, and the admissibility of evidence that proves too much. With the notable exception of most prohibitions against intentional discrimination—which control the special context of at-will employment and other at-will settings—DDE as reconstructed proves to be a powerful instrument for answering challenging legal questions.
In addition to the novel applications of DDE (as reconstructed), the article also addresses the canonical cases in which moral philosophers and lawyers apply (or contest the application of) DDE: collateral civilian casualties in war; abortion; hypothetical cases involving trolleys and a "fat man"; and lethal palliation. As I explain in a short preface that accompanies the article, that last example is especially poignant, given that Sherry had stage-4 cancer when she wrote the article. Although she completed most of the initial writing at a point when her medium-term prognosis was better than the course of her illness ultimately turned out to be, even then the discussion of end-of-life medical treatment was not merely hypothetical.
The newly published article is one of three of Sherry's papers that will end up being published more or less posthumously. Our co-authored article "If We Didn't Eat Them, They Wouldn't Exist": The Nonidentity Problem’s Implications for Animals (Including Humans), bears a publication date of August 15, 2022, which was just ten days before Sherry died. As I note in the asterisk footnote to the newly published article on DDE, I worked with the (excellent) editors of the Connecticut Law Review on the relatively minor changes between the version of the paper she sent in draft in March 2022 and the final version. I also made some small substantive tweaks based on feedback from Cornell colleagues to whom I presented the article at a workshop this past January. But the DDE article is essentially Sherry's work.
The DDE article is, however, only the penultimate article of Sherry's. She left behind another manuscript. It addresses the question why conservative libertarians who oppose even relatively minor affirmative obligations (like to buy health insurance), especially if they intrude on bodily integrity even a little (as with a vaccine mandate), nonetheless are untroubled by much more substantial mandates that impose on bodily integrity in other ways. In particular, it looks at the logic of and rhetoric supporting laws restricting abortion, gender-affirming care, and assisted suicide.
Although Sherry had written down some of the arguments and core ideas for that last paper, it still needed a great deal of fleshing out and structuring. By contrast with the DDE paper, I couldn't simply edit while preserving Sherry's voice. Accordingly, I decided to make myself a co-author of the article and continue the research, writing, and editing. I gave it the working title Mandating Nature's Course. I've been getting it in shape for publication as our joint work -- with the caveat that I'm extrapolating Sherry's views where I address issues she didn't. I'll present the paper at the symposium commemorating her work that will be held on September 29 at Rutgers Law School in Newark and co-sponsored by Rutgers and the Cornell Law Review. (I've been working with the other symposium organizers on various logistical details of the symposium. We expect to launch a website in the next few weeks and will then periodically update with information about speakers, reservations, accommodations, etc.)
I noted at the memorial service at Cornell Law School last October that each of Sherry's last three papers included substantial discussion of death and dying. In addition to the discussion of end-of-life care in the DDE article and the unfinished paper that will become Mandating Nature's Course, a key portion of If We Didn't Eat Them contrasts never existing with dying, noting in the process that death can be a mercy if it ends terrible suffering. As I said at the service:
Someone who didn’t know Sherry well might think that as her own end came into view she became obsessed with death and dying, but that’s not accurate. Throughout her career, Sherry drew inspiration for her scholarship from her experiences, whether they were cases she worked on, questions students asked in class, or personal relationships. For Sherry, it was perfectly natural to develop an interest in the legal regulation of death and dying.
Here I'll simply add that readers of the DDE article will realize that in expounding the logic of DDE with respect to palliative care, Sherry was in no way endorsing it as a limit on what doctors should be able to do for their patients. As the DDE article explains (at page 546), Sherry thought that there is a moral right and ought to be a legal right to what is sometimes called "a peaceful death." That view finds expression in Mandating Nature's Course, but in the DDE article she bracketed it to expound the hitherto under-appreciated ubiquity of (reconceptualized) DDE logic in the law. It is a testament to her integrity as a scholar that, even when the stakes were so personal, she put the project first.