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Seton Hall Law Review



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Many moral demands on social groups cannot be met without cooperation among group members. In some cases, individual action does not advance the collective moral interest at all without some threshold level of cooperation by other group members. Is an individual required to act as if others will cooperate even if she knows that they will not? This Article argues that individuals may take into account the reality of pervasive noncooperation and decline to attempt cooperation. Only ex ante mandatory rules can solve moral collective action problems. In a political community, those rules are public law. The most compelling argument in favor of recognizing individual duties to attempt cooperation is that we may not predict that other people will fail to comply with their moral duties. A variety of legal rules reveal discomfort with such “agent predictions” in the context of criminal law, tort law, and First Amendment law. This Article will show, however, that legal shifts in several doctrinal areas, especially tort law, not only tolerate but, in some cases, appear to require that individuals make agent predictions. This trend is consistent with contemporary thinking about how people relate to contingent features of our environment. This Article will parse out permissible and impermissible agent predictions. The agent predictions at issue in moral collective action problems are usually permissible. This Article articulates and defends a “no-martyr principle” that denies a duty to (attempt to) contribute to collective endeavors that are futile in the light of sound agent predictions. While such conduct is virtuous, it is not compulsory. Private law rules (in tort and contract law) largely respect the no-martyr principle. This Article shows how public law gets around it and why we should use mandatory rules issued by the state rather than moral exhortation of individuals to solve moral collective action problems.

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