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Bar Exam, Dahlia Lithwick, Orin Kerr, Attempt and Conspiracy

Prof. Kerr takes another swing at Dahlia Lithwick in her latest column, which she titles "Minority Report" in reference to the movie (and possibly short story) of the same name. Her hypothesis is that the recent arrests of two terror networks in their planning stages brings us "ever closer to criminalizing bad thoughts."

Prof. Kerr matches fact to Lithwick's musings and concludes that she's worried about an "expansion" of powers no more novel than bog-standard conspiracy. He's certainly right, but she's also misinterpreted the movie on which she bases her comparison.

While there is a conspiracy in Minority Report, if the movie represents any fundamental change in the law (besides the lack of a requirement of trial by jury), it's a change in the standards for attempt, not conspiracy. As my fellow bar exam sufferers know, in most jurisdictions conspiracy requires an agreement, an intent to agree and an overt action in pursuance of the conspiracy. On the other hand, attempt requires an intent to commit the crime and a substantial step beyond mere preparation in furtherance thereof. (These are quick definitions from my notes suitable for bar prep, of course, and not detailed outlines.)

According to Lithwick, the world of Minority Report is one in which "people are arrested for crimes they hope to commit in the future." But Department Chief Anderton (Cruise) runs from "justice" with no idea who his intended victim is or why he would want to kill him. In short, he's being "prosecuted" for attempt despite the lack not only of a substantial step, but without even intent. His accusers, the "Precogs," are so named because they see the future, not because they read minds. In the very strictest sense, they're not "thought police."

Also, unless I'm failing to remember the movie correctly, Anderton never really commits a conspiracy. Those who help him might rise to the level of solicitation or accomplices (Iris, for instance, encourages him to break into his old office), but they're not conspirators: they don't agree to a criminal objective. To the extent that there is a "conspiracy" in the non-legal sense, it's on the part of the fellow who sets up Anderton, and I don't recall him having much in the way of help.

This springs to mind not (merely) through an excess of geekery, but also because it's relevant for the bar exam. The substantial step analysis for attempt is much more demanding than the overt action of conspiracy, and the two crimes, while both inchoate, require separate consideration. Attempt requires the intent to commit the crime, while conspiracy requires the much broader intent to agree. Lithwick can make this error because she's already passed the exam, but those of us yet to take it can learn from the mistake.


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