Category Archives: Causation

Nicholas Hooper, ‘The Phenomenology of Medico-Legal Causation’

Abstract: The language of counterfactual causation employed from the bench obscures the analytical vacuity of the ‘but for’ test. This paper takes issue with the consistent recourse to ‘common sense’ as a methodological tool for determining the deeply complex issue of causality. Despite manifestly empty gestures to, eg, robust pragmatism, the current approach imposes the […]

Barbara Billauer, ‘The Causal Conundrum: Examining the Medical-Legal Disconnect in Toxic Tort Cases from a Cultural Perspective or How the Law Swallowed the Epidemiologist and Grew Long Legs and a Tail’

Abstract: The literature regarding the law-epidemiologic disconnect in causal proof is vast, non-conclusive and partisan. Some favor weakening the plaintiff’s burden in cases of ambiguous causation (when we don’t have enough objective scientific proof), even if bastardizing scientific requisites is necessary. Scientific purists, of course, object. Some suggest crafting novel legal causes of action, such […]

Lando and Schweizer, ‘Causality and Incentives with Multiple Tortfeasors’

Abstract: For a tortfeasor to be liable for a victim’s loss, the tortfeasor’s negligence must have caused the loss. In the context of multiple tortfeasors, this is generally taken to mean that but-for the tortfeasors negligence, the loss would not have occurred, given the acts by other tortfeasors. In the law and economics literature on […]

‘Rethinking Actual Causation in Tort Law’

“The concept of causation is central to myriad areas of tort law: a defendant commits simple battery only if she ‘intentionally causes bodily contact’ with another; she trespasses only if she ‘intentionally enters or causes tangible entry upon the land in possession of another’; she is liable for negligence only if she ‘causes personal injury […]

Shahar Dillbary, ‘Sharing Externalities: The Surprising Value of Agreements to Commit Torts’

Abstract: This article focuses on agreements to commit or induce the commission of a tort. Examples include an agreement between factories to use a production process that would pollute a lake, or an agreement where one entices another to publish a false statement by promising to share the cost of the injury. Such agreements are […]

Lachlan Caunt, ‘Hows, Whys, and But-Fors: Theorizing, Comparing, and Solution Finding within the Principle of Material Contribution to Risk in the Law of Negligence’

Abstract: Material contribution to risk is a principle of tort causation; yet has never been applied. It may potentially violate all of the principles that underpin tort causation, whatever those principles may be. Alternately, it may simply be another conventional adaptation of tort causation to avoid manifest injustice. The supposition is that it will fall […]

Lachlan Caunt, ‘Say What You Mean, and Mean What You Say: Rebuilding the Building Blocks of But-For Causation’

Abstract: What does ‘causation’ actually mean? Is saying that an act ‘caused’ an outcome linked to an observable notion of cause and effect; or is such a statement based upon supposition and guesswork? This early draft article begins to break down and rebuild the term ‘causation’, and what is required to ‘prove’ a causal link […]

Anthony Sebok, ‘Actual Causation in the Second and Third Restatements: Or, the Expulsion of the Substantial Factor Test’

Abstract: This chapter contrasts the Restatement (Third) of Torts: Liability for Physical Harm’s Chapter Five (on Factual Cause) and Chapter Six (on Scope of Liability) with the treatment of causation in the Restatement (Second) of Torts’ Chapter 16 (‘Legal Cause’). It was written for a book on causation in both common law and civilian jurisdictions. […]

‘Crossing Boundaries? Public Duties and Private Law’: Workshop, Leicester Law School, 21 October 2016

The aim of the workshop is to bring together private lawyers and human/constitutional rights lawyers from the UK and South Africa to reflect on the different ways in which these two jurisdictions have dealt with the relationship between tort law and human/constitutional rights law. The morning session will be focused on duties, reflecting especially on […]

Karriann Laubach, ‘Epigenetics and Toxic Torts: How Epidemiological Evidence Informs Causation’

Introduction: “… Part II of this Note provides a scientific background and summarizes the current state of epigenetics research. Part III summarizes the primary challenges of proving causation in toxic tort cases and how courts address these challenges by modifying the existing causation framework. Part IV discusses how epigenetics can inform the causation inquiry in […]