Dr Sarch's research tackles theoretical and doctrinal questions about the criminal law, with a particular emphasis on culpable mental states and the fundamental limits on the reach of criminal liability. He has published widely on criminal culpability, willful ignorance, risk taking, well-being and blame, and his current projects focus on cognitive biases and motivated reasoning in corporate crime, as well as legal fictions and the regulation of artificial agents (from AI to corporations). His book, entitled Criminally Ignorant: Why the Law Pretends We Know What We Don't, is forthcoming with Oxford University Press (due out in print in spring 2019). He received his JD from University of Michigan Law School, his PhD in Philosophy from University of Massachusetts, Amherst, and his BA from Cornell University. Dr Sarch clerked on the US Court of Appeals for the Second Circuit and worked as an associate at Akin Gump Strauss Hauer & Feld in New York.
Areas of specialism
Dr. Sarch's research tackles theoretical and doctrinal questions about the criminal law, with a particular emphasis on culpability, mental states and the fundamental limits on the reach of criminal liability. His published work, which often draws on moral philosophy, covers a range of topics including willful ignorance, the concurrence requirement, accomplice liability, corporate crime, well-being and blame, and his articles have appeared in a number of law reviews and peer-reviewed journals including Legal Theory, Law and Philosophy, University of Colorado Law Review, Penn State Law Review, Criminal Law and Philosophy, Philosophical Studies and Pacific Philosophical Quarterly. His book, entitled Criminally Ignorant: Why the Law Pretends We Know What We Don't, is forthcoming with Oxford University Press (due out in print in spring 2019). In it, he defends a culpability-based theory of why the law is justified in imputing mental states like knowledge or awareness of risks even when we don't actually possess those mental states. This surprising and controversial practice is justified, Dr. Sarch argues, when we are just as culpable, and culpable in the same way, as if we really did possess the missing mental states. Along the way, the book explores the normative foundations of criminal liability and critically examines widespread legal fictions in the criminal law.
- Criminal law
- Corporate crime
- White collar crime
- Legal theory
- Regulation of artificial intelligence
- Internet governance
Dr. Sarch teaches criminal law and tort law, and supervises PhD dissertations in both fields. He particularly welcomes PhD applications regarding criminal law theory, white collar crime, corporate criminal liability, the limits of criminal liability, online criminal activity, or criminal law and artificial intelligence.
The criminal law declines to punish merely for bad attitudes that are not properly manifested in action. One might try to explain this on practical grounds, but these attempts do not justify the law’s commitment to never punishing unmanifested mental states in worlds relevantly similar to ours. Instead, a principled explanation is needed. A more promising explanation thus is that one cannot be criminally culpable merely for unmanifested bad attitudes. However, the leading theory of criminal culpability has trouble making good on this claim. This is the theory that an action is criminally culpable to the extent that it manifests insufficient regard for legally protected interests. The trouble is that this theory’s defenders have not adequately explained what it is for an action to manifest insufficient regard. In this paper, I aim to provide the required account of manifestation, thereby rendering the insufficient regard theory more defensible. This, in turn, allows the view to explain the broad range of doctrines that treat unmanifested mental states as irrelevant. The resulting theory of criminal culpability is both descriptively plausible and normatively attractive. Moreover, it highlights the continuity between criminal culpability and moral blameworthiness by showing how the former functions as a stripped-down analogue of the latter.
There is a long history of disagreement about what the mens rea for complicity is. Some courts take it to be the intention for the underlying crime to succeed while others take mere knowledge of the underlying crime to be sufficient. Still others propose that the mens rea for complicity tracks the mens rea of the underlying crime-the so-called "derivative approach. " However, as argued herein, these familiar approaches face difficulties. Accordingly, we have reason to continue our search for the elusive mens rea for complicity. This Article develops a new account of the mens rea for complicity, drawing on an older approach informed by agency law principles. In particular, I argue that a distinct attitude of condoning the underlying crime is best seen as the mens rea for complicity. This approach yields a more principled framework for determining when accomplice liability is warranted than the existing approaches do. Moreover, it demonstrates that certain reforms to the current legal regime are warranted. Most importantly, the law should recognize that complicity comes in degrees. While reforms of this sort have been previously proposed for reasons relating to causation, this Article argues that different levels of complicity must also be recognized on independent mens rea grounds.
In a recent paper in this journal, Gideon Yaffe provides an expected utility model of culpability in order to explain why willfully ignorant misconduct sometimes is just as culpable as knowing misconduct. Although promising, I argue here that challenges remain for Yaffe’s view. First, I argue that Yaffe’s proof of the equal culpability of willful ignorance and knowledge is not watertight in certain realistic cases. Next, I argue that Yaffe’s view of culpability is motive-sensitive in a way that sits uncomfortably with criminal law doctrine, and I show that his view has difficulty with unjustified actions that are nonetheless privileged. Perhaps these problems can be solved by modifying Yaffe’s account using the notion of legally recognized reasons. However, I argue that difficulties remain when it comes to implementing this solution into Yaffe’s mathematical model. Finally, I raise concerns about Yaffe’s account of willful ignorance in particular. While his view initially seems to have a major advantage over the additive picture of willful ignorance I’ve defended, this advantage does not stand up under scrutiny. In fact, Yaffe likely relies (albeit covertly) on an additive metaphysical picture of willful ignorance as well.
American criminal law is committed to some version of the doctrine of double effect (“DDE”). In this paper, I defend a new variant of the agent-centered rationale for a version of DDE that is of particular relevance to the criminal law. In particular, I argue for a non-absolute version of DDE that concerns the relative culpability of intending a bad or wrongful state of affairs as opposed to bringing it about merely knowingly. My aim is to identify a particular feature of the former in virtue of which it is pro tanto more culpable than the latter. Providing an agent-centered argument of this kind for a culpability version of DDE, I argue, is an especially attractive route to take for those who are interested in vindicating the way the criminal law actually encodes DDE. © 2015 Springer Science+Business Media Dordrecht
It is a foundational, but underappreciated principle of criminal liability that being guilty of a crime requires not only possessing the requisite mens rea and actus reus, but that this mens rea also be appropriately connected to the actus reus. That is, the former must concur with or "actuate" the latter. While there has been much discussion of the connection requirement as applied to the mens rea of intent, its meaning as applied to knowledge and recklessness has received far less attention. In this paper, I consider one of the few sophisticated attempts to spell out the requirement as applied to knowledge and recklessness — namely, the counterfactual approach offered by Ken Simons. However, I argue that this sort of approach faces problems. In its place, I defend a different kind of approach to the connection requirement — one that does not rely on counterfactual tests, but rather places normative questions front and center.
This book review sketches the main arguments of Findlay Stark’s book, and then goes on to develop an objection to Stark’s account of one of the core notions in the book—namely, awareness of risk.
This article introduces the main conceptual and normative questions about willful ignorance. Section I asks what willful ignorance is, while Section II asks why—and how much—it merits moral or legal condemnation. My approach is to critically examine the criminal law’s view of willful ignorance. Doing so not only reveals the range of positions one might take about the phenomenon, but also sheds light on foundational questions about the nature of culpability and the relation between law and morality.
Courts commonly allow willful ignorance to satisfy the knowledge element of a crime. The traditional rationale for this doctrine is that willfully ignorant misconduct is just as culpable as knowing misconduct. But it is not obvious that this “equal culpability thesis” holds across the board. Is it true in all cases of willful ignorance or only some? This is the question I investigate here. Specifically, I argue against several common versions of the equal culpability thesis before defending my own restricted version. First, I argue that the broadest version of the thesis, adopted by many courts, is overinclusive. Then I argue against several restricted versions of the thesis offered by legal theorists including Doug Husak, David Luban, and Deborah Hellman. My own account, by contrast, is premised on a duty of reasonable investigation. If my account is on the right track, the widely employed willful ignorance doctrine stands in need of reform.
The 'adjustment strategy' currently seems to be the most common approach to incorporating objective elements into one's theory of well-being. These theories face a certain problem, however, which can be avoided by a different approach - namely, that employed by 'partially objective multi-component theories.' Several such theories have recently been proposed, but the question of how to understand their mathematical structure has not been adequately addressed. I argue that the most mathematically simple of these multi-component theories fails, so I proceed to investigate more sophisticated ways to formulate such a theory. I conclude that one of these - the Discount/Inflation Theory - is particularly promising.
In this insightful and well-argued article, W. Robert Thomas sets out to make progress on a long-standing problem for corporate criminal law: namely, the difficulties presented by using fines as the primary method of punishing corporations.1 Thomas convincingly argues that corporate criminal fines do not do a particularly good job of promoting the goals of criminal punishment—i.e. deterrence, coupled with retributivist ends and the expression of societal condemnation.2 He then defends a proposal for how corporate law can be reformed to enable corporate criminal fines to more effectively serve such goals.3 The result is a concrete and promising policy reform. In this Response, I raise a number of critical questions for Thomas’s arguments. Most importantly, several versions of Thomas’s policy proposal are available, and one wonders why these alternatives would not be at least as desirable as the version Thomas himself endorses. In Parts I and II, I briefly recap the basics of Thomas’s argument. Then in Part III, I subject them to a bit of critical scrutiny. Ultimately, Thomas’s proposal is intriguing, and the aim of this Response is simply to continue the important conversation Thomas has begun.
In his recent book Attempts, Gideon Yaffe suggests that attempts should be criminalized because of a principle he dubs the "Transfer Principle." This principle holds that if a particular form of conduct is legitimately criminalized, then the attempt to engage in that form of conduct is also legitimately criminalized. Although Yaffe provides a powerful defense of the Transfer Principle, in this paper I argue that Yaffe's argument for it ultimately does not succeed. In particular, I formulate two objections to Yaffe's argument for the Transfer Principle. First, I argue that a basic assumption about criminalization, on which Yaffe's argument crucially depends, is incomplete, and Yaffe's own attempt to supplement it undermines his argument for the Transfer Principle. Second, I argue that Yaffe's argument does not properly account for the fact that those who merely attempt a crime and those who complete it might sometimes be responding to reasons in different ways. Accordingly, I conclude that Yaffe has not succeeded in establishing the truth of the Transfer Principle. © 2013 Springer Science+Business Media Dordrecht.
This Article investigates the limits of the willful ignorance doctrine as employed in federal criminal law. This foundational rule allows willfully ignorant defendants to be treated as knowing wrongdoers. The willful ignorance doctrine is of increasing importance at the moment in light of the mens rea reform bills currently working their way through Congress. This legislation seeks to establish some form of knowledge as the default mens rea in federal law. Thus, if some version of this law is passed, the willful ignorance doctrine will provide a partial work-around. Motivated by the central role of the willful ignorance doctrine in federal prosecutions for a range of crimes-from drug offenses to white-collar crime-this Article analyzes a tension between the way federal courts justify the doctrine and the way they apply it. In particular, the Article argues that courts are committed to expanding the doctrine beyond the limits within which it is currently applied. The law allows willful ignorance to substitute for knowledge on the theory that these two mental states are equally culpable. This Article argues that, as a result, the law is also committed to allowing some forms of egregious non-willful ignorance-most importantly, reckless ignorance-to substitute for knowledge when the conditions of equal culpability are met. Moving beyond the traditional willful ignorance doctrine is especially important in order to combat the incentives that lawyers, accountants, and other white-collar professionals have to remain in ignorance of fraud committed by their clients. While the existing willful ignorance doctrine is responsive to conscious efforts to remain in ignorance of fraud in one's midst, the criminal law does not have sufficient doctrinal tools to counteract the incentives to recklessly allow one's ignorance to be preserved. This is the gap that the Iterated Reckless Ignorance Principle defended here is meant to fill.
In this article, I aim to clarify how Actual Desire Satisfactionism should accommodate the ways in which desire and time are connected. In particular, I argue that Weak Concurrentism represents the most promising way for the Desire Satisfactionist to capture the temporal nature of desire. I consider the Desire Satisfactionist's other main options, but argue that none succeeds. This leaves Weak Concurrentism looking attractive. However, Weak Concurrentism might also be thought to have some implausible consequences of its own. Nonetheless, I argue that, on closer inspection, these consequences are not implausible at all-at least by the lights of the Desire Satisfactionist. I do not offer a full-blown defence of Weak Concurrentism, but rather aim to defend only a conditional conclusion: in so far as one is committed to Actual Desire Satisfactionism, Weak Concurrentism represents the best way to tackle the problems raised by the temporal nature of desires.
Hausman and McPherson defend welfare economics by claiming that even if welfare does not consist in preference satisfaction, preferences still provide good, if fallible, evidence of welfare. I argue that this strategy does not yet fully solve the problems for welfare economics stemming from the preference satisfaction theory of welfare. More work is needed to show that our self-interested preferences are sufficiently reliable, or in some other sense our best, evidence of well-being. Thus, my aim is to identify the challenges that remain and clarify what additional work is needed before Hausman and McPherson's defence of welfare economics succeeds. © 2014 Cambridge University Press.
There are sometimes good reasons to define a criminal offense in a way that is over-inclusive, in the sense that the definition will encompass conduct that is not otherwise wrongful. But are these reasons ever sufficient? When, if ever, can such laws justifiably be made and enforced? When, if ever, can they permissibly be violated? In The Realm of Criminal Law, Antony Duff tackles this challenge head on. We find Duff’s strategy promising in many ways as an effort to reconcile over-inclusive offenses with the wrongness constraint on criminalization. Nonetheless, we aim to move the discussion forward by raising questions about Duff’s solution and highlighting some limitations and costs. We begin in Part 2 by sketching the contours of Duff’s position; then in Part 3 we propose one refinement and offer two practical observations; and finally, in Part 4 we raise broader concerns. In particular, we question whether the problem of over-inclusive offenses is one that can or ought to be solved, or whether it is better conceived as a difficulty to be managed and mitigated. Of course, we should avoid undue harshness in the law where we can, and Duff’s approach is guided by this worthy ambition. But there may also be a limit to this. To the extent that the harshness cannot be avoided, perhaps this should be acknowledged and faced up to, rather than obscured or finessed.
Internalism about a person's good is roughly the view that in order for something to intrinsically enhance a person's well-being, that person must be capable of caring about that thing. I argue in this paper that internalism about a person's good should not be believed. Though many philosophers accept the view, Connie Rosati provides the most comprehensive case in favor of it. Her defense of the view consists mainly in offering five independent arguments to think that at least some form of internalism about one's good is true. But I argue that, on closer inspection, not one of these arguments succeeds. The problems don't end there, however. While Rosati offers good reasons to think that what she calls 'two-tier internalism' would be the best way to formulate the intuition behind internalism about one's good, I argue that two-tier internalism is actually false. In particular, the problem is that no substantive theory of well-being is consistent with two-tier internalism. Accordingly, there is reason to think that even the best version of internalism about one's good is in fact false. Thus, I conclude, the prospects for internalism about a person's good do not look promising. © 2010 Springer Science+Business Media B.V.
George Bealer has provided an elaborate defense of the practice of appealing to intuition in philosophy. In the present paper, I argue that his defense fails. First, I argue that Bealer's theory of determinate concept possession, even if true, would not establish the "autonomy" of philosophy. That is, even if he is correct about what determinate concept possession consists in, it would not follow that it is possible to answer the central questions of philosophy by critical reflection on our intuitions. Furthermore, I argue that Bealer's account of determinate concept possession in fact faces serious problems. Accordingly, I conclude that Bealer does not succeed in vindicating the appeal to intuition in philosophy. © 2008 Springer Science+Business Media B.V.
According to the willful ignorance doctrine, when conviction of a crime requires knowledge of some fact, the defendant’s willful ignorance may be allowed to satisfy the relevant knowledge requirement. However, there is a circuit split concerning what, precisely, being willfully ignorant involves. According to the restricted motive approach endorsed by the Eighth, Tenth and Eleventh Circuits, the defendant has to have deliberately remained in ignorance in order to preserve a defense against liability in the event of prosecution. However, according to the unrestricted approach championed by the Ninth Circuit and endorsed by a number of other circuits, no particular motive for remaining in ignorance is required. This Article argues that both of these approaches are in tension with the courts’ “traditional rationale” for the willful ignorance doctrine. The traditional rationale is premised on the idea that acting in willful ignorance is just as culpable as acting knowingly — the so-called “equal culpability thesis.” However, this Article argues that the equal culpability thesis does not hold across the board, only in a limited set of circumstances. Appreciating this fact shows that the unrestricted approach is overinclusive in that it sometimes permits willful ignorance to substitute for knowledge even when the equal culpability thesis does not hold. Similarly, the restricted motive approach proves to be underinclusive in that it sometimes fails to allow willful ignorance to substitute for knowledge even when the equal culpability thesis does hold. These defects threaten the normative underpinnings of both approaches. To arrive at a more normatively justified approach to the willful ignorance doctrine, a systematic account is needed of the conditions in which the equal culpability thesis holds. The task is even more important because the thesis is rarely defended explicitly. This Article attempts to fill this gap by defending a version of the thesis that more accurately captures the conditions under which acting in willful ignorance is as culpable as acting knowingly. This appropriately restricted version of the thesis is then used as the basis for offering a more justified approach to the willful ignorance doctrine — one that avoids the overinclusiveness of the unrestricted approach and the underinclusiveness of the restricted motive approach, while also remaining practically implementable by courts.
Some societies used to impose liability on inanimate objects, a practice we’d now regard as silly and confused. When we punish corporations today, are we making similar mistakes? Here I consider some important sources of philosophical skepticism about imposing criminal liability on corporations, and I argue that they admit of answers, which places punishing corporations on stronger footing than punishing inanimate objects. First, I consider the eligibility challenge, which asserts that corporations are not the right kind of thing to be punished. Second, the reductionist challenge insists that corporate culpability always reduces to individual culpability. I suggest that progress can be made in addressing these challenges by asking the right law-focused questions and attending to recent developments in criminal law theory and moral philosophy.
Reactive emotion accounts hold that blameworthiness should be analyzed in terms of the familiar reactive emotions. However, despite the attractions of such views, we are not persuaded that blameworthiness is ultimately a matter of correctly felt reactive emotion. In this paper, we draw attention to a range of little-discussed considerations involving the moral significance of the passage of time that drive a wedge between blameworthiness and the reactive emotions: the appropriateness of the reactive emotions is sensitive to the passage of time in ways that attributions of blameworthiness are not. There are a number of ways in which reactive emotion accounts might attempt to accommodate the moral significance of time, however. We consider the most important of these but ultimately find them wanting. Accordingly, we conclude that the prospects for the reactive emotion accounts are bleak. Our argument, if successful, has a range of implications for legal theory, most importantly in providing a novel moral basis for statutes of limitations and in shedding light on new avenues in the theory of criminal law generally.
This is a book about the legal fiction that sometimes we know what we don't. The willful ignorance doctrine says defendants who bury their heads in the sand rather than learn they're doing something criminal are punished as if they knew. Not all legal fictions are unjustified, however. This one, used within proper limits, is a defensible way to promote the aims of the criminal law. Preserving your ignorance can make you as culpable as if you knew what you were doing, and so the interests and values protected by the criminal law can be promoted by treating you as if you had knowledge. This book provides a careful defense of this method of imputing mental states based on equal culpability. On the one hand, the theory developed here shows why the willful ignorance doctrine is only partly justified and requires reform. On the other hand, it demonstrates that the criminal law needs more legal fictions of this kind. Repeated indifference to the truth may substitute for knowledge, and very culpable failures to recognize risks can support treating you as if you took those risks consciously. Moreover, equal culpability imputation should also be applied to corporations, not just individuals. Still, such imputation can be taken too far. We need to determine its limits to avoid injustice. Thus, the book seeks to place equal culpability imputation on a solid normative foundation, while demarcating its proper boundaries. The resulting theory of when and why the criminal law can pretend we know what we don't has far-reaching implications for legal practice and reveals a pressing need for reform.
Whether causing flash crashes in financial markets, purchasing illegal drugs, or running over pedestrians, AI is increasingly engaging in activity that would be criminal for a natural person, or even an artificial person like a corporation. We argue that criminal law falls short in cases where an AI functionally commits a crime and there are no practically or legally identifiable upstream criminal actors. This Article explores potential solutions to this problem, focusing on holding AI directly criminally liable where it is acting autonomously and irreducibly. Conventional wisdom holds that punishing AI is incongruous with basic criminal law principles such as the capacity for culpability and the requirement for a guilty mind. Drawing on analogies to corporate and strict criminal liability, as well as familiar imputation principles, we show AI punishment cannot be categorically ruled out with quick theoretical arguments. AI punishment could result in general deterrence and expressive benefits, and it need not run afoul of negative limitations such as punishing in excess of culpability. Ultimately, however, punishing AI is not justified, because it might entail significant costs and it would certainly require radical legal changes. Modest changes to existing criminal laws that target persons, together with potentially expanded civil liability, are a better solution to AI crime.
The concept of well-being is one of the oldest and most important topics in philosophy and ethics, going back to ancient Greek philosophy. Following the boom in happiness studies in the last few years it has moved to centre stage, grabbing media headlines and the attention of scientists, psychologists and economists. Yet little is actually known about well-being and it is an idea that is often poorly articulated. The Routledge Handbook of Philosophy of Well-Being provides a comprehensive, outstanding guide and reference source to the key topics and debates in this exciting subject. Comprising over 40 chapters by a team of international contributors, the Handbook is divided into six parts: well-being in the history of philosophy current theories of well-being, including hedonism and perfectionism examples of well-being and its opposites, including friendship and virtue and pain and death theoretical issues, such as well-being and value, harm, identity and well-being and children well-being in moral and political philosophy well-being and related subjects, including law, economics and medicine. Essential reading for students and researchers in ethics and political philosophy, it is also an invaluable resource for those in related disciplines such as psychology, politics and sociology.
This paper looks at two accounts of Aristotle's views on the virtue of megalopsychia. The first, defended by Christopher Cordner, commits Aristotle to two claims about the virtuous person that might seem unpalatable to modern readers. The second account, defended by Roger Crisp, does not commit Aristotle to these claims. Some might count this as an advantage of Crisp's account. However, I argue that Cordner's account, not Crisp's, is actually the better interpretation of Aristotle. Nonetheless, this does not ultimately spell trouble for Aristotle, since, as I argue, the claims that Cordner's account commits Aristotle to are, on closer inspection, not really problematic.
The legal reasons that bind a judge and the moral reasons that bind all persons can sometimes pull in different directions. There is perhaps no starker example of such judicial dilemmas than in criminal sentencing. Particularly where mandatory minimum sentences are triggered, a judge can be forced to impose sentences that even the judge regards as “immensely cruel, if not barbaric.” Beyond those directly harmed by overly harsh laws, some courts have recognized that “judges who, forced to participate in such inhumane acts, suffer a loss of dignity and humanity as well.” When faced with such a judicial dilemma—a powerful tension between the judge’s legal and moral reasons—the primary question is what a judge can do to resolve it. We argue that the two standard responses—sacrificing morality to respect the law (“legalism”), or sacrificing the law to respect morality (“moralism”)—are unsatisfying. Instead, this Article defends an underexplored third response: rather than abandoning one ideal to maximally promote the other, we argue that judges should seek to at least minimally satisfy the demands of both. Judges should, in other words, look for and employ what we dub Satisficing Options. These are actions that enjoy sufficient support from both the legal reasons and the moral reasons, and thus are both legally and morally permissible—even if the acts in question would not strictly count as optimal by the lights of the law or morality. This common sensical response to the problem is not only underappreciated in the literature, but also has great practical import. Focusing on the sentencing context, this Article demonstrates that judicial dilemmas can be systematically resolved, mitigated or avoided through a range of concrete strategies that on their own or in conjunction can constitute Satisficing Options: these strategies include seeking out legally permitted but morally preferable interpretations of the law, expressing condemnation of unjust laws in dicta, and seeking assistance or cooperation from other actors to help defendants facing substantively unjust mandatory sentences. While these strategies can at times also go too far, we argue that in certain contexts they can be sufficiently defensible on both legal and moral grounds to be a justifiable response to judicial dilemmas. This Article thus provides both a novel theoretical framework for understanding the justification of judicial responses to unjust laws, as well as a practical a menu of options which judges can use to guide their responses to the judicial dilemmas that they are increasingly likely to encounter within our criminal justice system.
Monograph (forthcoming with Oxford University Press):
CRIMINALLY IGNORANT: WHY THE LAW PRETENDS WE KNOW WHAT WE DON'T