Abstract
Because liberalism is concerned with individual freedom, it finds that one person is responsible for the conduct of another only under very narrow circumstances. To a large extent, the law reflects this narrow conception of complicity. There is however one glaring exception to the law’s general resistance to complicity claims: where one actor becomes connected to another’s act through a pecuniary contribution, the law’s liberalism falls away. Money forges a cognizable association no matter how tenuous the causal connection and no matter the subsidizer’s attitudes toward the subsidized act. For example, in Burwell v. Hobby Lobby, the Supreme Court recognized complicity arising from an employer-subsidized health plan, even though the employer had no role to play in the ways its employees chose to spend their healthcare dollars. Pecuniary association explains material support cases where donors to the peaceful wing of an advocacy group can nonetheless be guilty of the crime of supporting a foreign terrorist organization if the group has a violent wing; after all, money is fungible, and no matter that the donor might oppose the group’s violence. Janus v. American Federation of State, County, and Municipal Employees, Council 31, where an employee successfully contested his union dues, even though they were not going to fund the union’s political activity, can be understood on similar grounds.
The first aim of this piece is to trace the law’s divergent approaches to shared responsibility. On the one hand, the law’s atomism generally constrains complicity. But the doctrine tells a very different story where money is the means of association. I aim to draw out this divergence across numerous doctrinal areas, including compelled hosting, campaign finance, public accommodations, and school choice.
Given that religion pervades many complicity claims, a second aim of the piece is to survey Christian conceptions of complicity to see if they share secular law’s special solicitude for money. Two findings emerge. First, Christian concerns with purity—along with the inevitable intermingling with the profane that market interactions involve—prompt a heightened focus on pecuniary association. But, second, the understanding of the evil of pecuniary complicity in Christian thought is far more defensible than the one embodied in secular law.
Recommended Citation
Amy J. Sepinwall,
Tender and Taint: Money and Complicity in Entanglement Jurisprudence,
98
Notre Dame L. Rev.
1623
(2023).
Available at:
https://scholarship.law.nd.edu/ndlr/vol98/iss4/7