Category Archives: Causation

Sergio Campos, ‘The Commonality of Causation’

ABSTRACT This essay, a version of which was given as the inaugural Goldman Endowed Lecture at Ohio Northern University School of Law, discusses the treatment of causation in class actions, multidistrict litigation, and similar collective litigation. Causation is a ubiquitous element of civil claims, and typically it is treated as an individual element of a […]

Eric Johnson, ‘Dividing Risks’

ABSTRACT The central question in the law of proximate cause is how to divide risks into parts. The leading test of proximate cause, the foreseeability test, requires the jury to decide whether the ‘general type’ of outcome that occurred was too improbable to be foreseeable. Before the jury can address this question, though, it has […]

Richard Wright, ‘Karl Engisch’s Die Kausalität als Merkmal der trafrechtlichen Tatbestände [Causality as a Characteristic of Criminal Law] Part II English Translation’

ABSTRACT This work by Karl Engisch was, as far as I am aware, the first to reject the traditional but-for / sine-qua-non test as the exclusive test of factual causation, or even as a proper test when employed, as usually assumed, through hypothetical analysis of what might otherwise have occurred rather than real world analysis […]

Sergio Campos, ‘The Commonality of Causation’

ABSTRACT This essay, a version of which was given as the inaugural Goldman Endowed Lecture at Ohio Northern University School of Law, discusses the treatment of causation in class actions, multidistrict litigation, and similar collective litigation. Causation is a ubiquitous element of civil claims, and typically it is treated as an individual element of a […]

Schauer and Spellman, ‘Probabilistic Causation in the Law’

ABSTRACT This paper challenges the widespread view that the legal system’s conception of causation is largely deterministic and token-level, that view stemming from the law’s principal focus on assigning ex post responsibility for past acts. We argue, in opposition to this view, that the probabilistic, ex ante, and type-level conceptions of causation that dominate the […]

Dan Burk, ‘Thirty-Six Views of Copyright Authorship, By Jackson Pollock’

ABSTRACT Humans have long used a variety of tools to convey artistic expression. Perhaps the most recent and mysterious artistic tools are machine learning or ‘artificially intelligent’ (AI) computer systems that have captured popular attention. When taken in isolation, these devices seem to operate autonomously, giving the illusion that there is no author behind their […]

Madeleine Morgan, ‘Revitalizing Louisiana’s Lost Chance Doctrine: Burchfield v Wright Sheds Light on the Need for Medical Expenses’

INTRODUCTION … Part I of this Comment provides background on relevant law regarding the lost chance doctrine and will trace the lost chance doctrine’s development in the United States and Louisiana. Part II articulates Louisiana’s approach to lost chance of a better outcome damages and will present the case Burchfield v Wright. Part III offers […]

‘Clinical Negligence: Birth Injury Claim’

“Clinical negligence litigation continues apace as Simeon Maskrey QC, sitting as a Deputy High Court Judge, handed down Judgment last week in a clinical negligence birth injury case (severe neuro-disability consequent upon an acute near total hypoxic-ischaemic insult) following a two-week trial which concluded early last month. This case highlights the ever-increasing importance placed on […]

Mihajlo Cvetković, ‘Causal Uncertainty: Alternative Causation in Tort Law’

ABSTRACT The causal link between the tortfeasor’s unlawful act and the resulting damage is an essential element of tort liability. There are situations in tort law practice where singular damage has more than one potential cause, so it is important to determine which one is legally relevant. In those situations, it is hard for the […]

Kevin Tobia, ‘Legal Concepts and Legal Expertise’

ABSTRACT A recent wave of empirical legal scholarship reports surprising findings about various concepts of legal significance, including the concept of acting intentionally, causation, consent, knowledge, recklessness, reasonableness, and law itself. These studies typically examine laypeople, but often draw broader conclusions about legal experts or law. Findings about laypeople’s (‘ordinary’) concepts have been taken to […]