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Group Think: The Law of Conspiracy and Collective Reason

NCJ Number
Journal of Criminal Law and Criminology Volume: 98 Issue: 1 Dated: Fall 2007 Pages: 147-206
Jens David Ohlin
Date Published
60 pages
This article provides a doctrinal justification, applying theory consistent with the basic principles of criminal law sufficient to ground vicarious liability for co-conspirators.
The article suggests that previously, scholarly literature has either focused its attention on developing a theory to ground vicarious conspiratorial liability, the demise of case precedent, or the wider concept of conspiracy itself should be wiped from the landscape of criminal law. This piece contends that each of these avenues is flawed, that in Conspiracy Law, no scholar has successfully developed a theory consistent with the basic principles of criminal law sufficient to ground vicarious liability for co-conspirators, and seeks to provide that doctrinal justification. Examined first were the previous attempts at justifying vicarious liability. The most promising approach involved finding the relevant intention in a group's intention to commit the crime. Considered was the idea of how the "group will" view became untenable, in particular because legal realism discouraged analysis into the metaphysics of collective endeavors generally. The author argues that this was especially unfortunate since groups truly matter to the law and cannot be reduced to their individual members. The article provides that the model of the conspiracy as a series of overlapping agents provides the best ground for attributing the mental intention of the group to its individual members, as well as the acts of one conspirator to all others, and does so without resort to the panicky psychology of a “group will.” This model recognizes the irreducibly collective aspect to some criminal behavior, yet also explains how these collective endeavors are built from the bricks and mortar of individual agents. This model was employed in the article to describe the different categories of conspiracies, each with a slightly different structure, and traced the doctrinal implications. 219 notes


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