Issues

In recent years, criminal prosecutors have pursued homicide charges against the parents of teenaged school shooters. Two high-profile cases—one from Michigan and one from Georgia—provide paradigmatic examples. In each case, the parents provided their children with weapons and ammunition despite obvious signs of each child’s dangerousness and instability. Criminal liability for such reckless conduct is appropriate. But homicide charges are not. This Article critiques this new trend in prosecutions as distorting the substantive criminal law to obtain an outcome that is otherwise unavailable without criminal code reform.

It is a long-held criminal law tenet that intentional wrongful conduct by one party—such as a school shooter—severs the chain of causation that might otherwise tie earlier wrongdoing—such as the provision of weapons— to prohibited results. In order to seek convictions against the parents of school shooters, prosecutors and judges have been discarding this foundational tenet of criminal causation and replacing it with a tort-like assessment of simple foreseeability. This distorts the substantive criminal law in dangerous ways, radically expanding the number of people and types of acts that can be said to have caused the deaths in question, misattributing blame, producing punishment out of proportion to culpability, and undermining the criminal law’s commitment to free will.

Meanwhile, more appropriate theories of liability, such as accomplice liability, are foreclosed by strict mens rea requirements that do not reflect the parents’ wrongful acts in these cases. Prosecutors thus find themselves stuck between pursuing inappropriate charges and taking no action at all.

To forestall any further corruption of the criminal law’s causation doctrines, and to more accurately sanction the parents’ problematic conduct, this Article calls for the creation of a new class of accomplice liability: reckless accomplices. A reckless accomplice is one who is aware of a substantial and unjustifiable risk that their actions will materially facilitate another’s criminal wrongdoing. Importantly, unlike traditional accomplices, who share a criminal purpose with the perpetrator, reckless accomplices would not be liable for the crimes they facilitated. Rather, legislators should create a standalone crime with punishment statutorily cabined to reflect the accomplice’s individual contribution to the crime. In most cases, this would be a small fraction of the punishment authorized for the principal offender. Criminalizing reckless accomplices in this manner would provide a relief valve for our punitive instincts in the wake of sensational tragedies, without the overcriminalization and overpunishment that attend homicide prosecutions. And it may, more broadly, invite us to reconsider the derivative nature of accomplice liability generally, which holds accomplices responsible for harm that is more properly attributable to the acts of others.

Originalists are increasingly turning to a general-law theory of constitutional rights. Under this theory, constitutional enactment declared but did not create constitutional rights. The content of those rights was, and remains, a question of general law—a species of common law, regularly employed at the Founding, that transcends jurisdictional boundaries. This preoccupation with general law has precipitated a wave of scholarship developing general-law accounts of various constitutional rights. Yet the nature of general law itself remains poorly understood.

This Article offers a theory of general law. Using philosophical methods to reexamine early American cases and recent work in legal history, the Article finds that general law depended on morality. To the extent that constitutional law consists of general law, identifying constitutional law calls for moral reasoning. This is not pure moral reasoning employed from an armchair but rather applied moral reasoning that accounts for customs, legal texts, institutional roles, and other social facts, all filtered through lawyers’ specialized training and experience.

The implications for originalism are striking. First, the general-law theory of constitutional rights requires reconceiving the core originalist principles of fixation and constraint, as general law satisfies those principles only in the sense and to the extent that morality does. Second, applying general law can be seen as either finding or making law; the distinction turns on one’s view of the nature of law and is of no consequence for adjudication. Third, the theory supports an approach to adjudication that centers on moral reasoning and is consistent with a range of non-originalist approaches.

Modern arbitration clauses hide a dirty secret: many don’t actually provide for genuine arbitration. These provisions masquerade as mutual commitments to fair and efficient private dispute resolution but, in truth, are mere imitations of genuine arbitration provisions. Some reserve for the drafter the power to amend or terminate the clause at will without notice or consent; others design the arbitration process to ensure bias from the start; still others depart so radically from the bilateral, informal model blessed by the Supreme Court that they scarcely resemble arbitration at all. These arrangements are arbitration in name only, falling outside the Federal Arbitration Act’s (FAA) scope, which extends only to the enforcement of authentic arbitration agreements.

Much turns on the threshold question of whether a valid arbitration clause exists. Once a court classifies a clause as “arbitration,” the FAA’s machinery activates: state-law defenses are narrowed by federal preemption, delegation provisions channel validity challenges to the arbitrator, and courts must stay litigation and compel arbitration under §§ 3 and 4 of the FAA. But when a clause fails to qualify as arbitration in the first instance, the FAA never applies. No preemption, no delegation, no pro-arbitration presumption—just the application of ordinary contract law. Yet courts routinely treat the label “arbitration” as dispositive, extending FAA protection to provisions that lack arbitration’s basic attributes and enabling sham regimes to proliferate in consumer and employment contracts.

This Article recovers arbitration’s definitional boundaries. Drawing on the FAA’s text and legislative history, and on the Supreme Court’s repeated emphasis on arbitration’s defining features, it identifies three core prerequisites—structural neutrality, procedural minimalism, and mutual obligation. Clauses that lack these features are not simply flawed arbitration agreements—they are not FAA-protected arbitration at all.

This definitional clarity is especially urgent today. Corporations, seeking to stave off mass arbitration, are rewriting their clauses to impose exhaustion requirements, batching rules, queuing regimes, and other procedural chokepoints that transform streamlined dispute resolution into a bureaucratic obstacle course. Plaintiffs are increasingly challenging these anti-mass-arbitration provisions as exceeding arbitration’s definitional boundaries—yet courts lack principled tools for distinguishing genuine arbitration from its counterfeits. A threshold inquiry into whether a provision truly constitutes arbitration would prevent the FAA’s protections from extending to arrangements that bear arbitration’s name but not its substance.