Category Archives: Causation

Damiano Canale, ‘Three Concepts of Probabilistic Causation in the Law’

ABSTRACT Frederick Schauer and Barbara Spellman have recently argued that the probabilistic treatment of causality is widespread in legal practice. Although judicial decisions are focused on single events, there are many aspects of the law in which the relationship between cause and effect is interpreted in probabilistic terms. As in social and natural sciences, also […]

‘Crowdsourcing Plain Meaning’

James A Macleod, Ordinary Causation: A Study in Experimental Statutory Interpretation, 94 Indiana Law Journal (forthcoming 2019), available at SSRN. Employment discrimination doctrine is a mess, and one of the messiest parts concerns causation. Problems with causation have been the focal point of many articles in recent years, often in response to the ‘tortification’ of […]

Rizzi and Vicente, ‘Defectiveness and Causation in Vaccine Liability Cases – the Jurisprudence of the Supreme Court of the United States and the Court of Justice of the European Union’

ABSTRACT The reflection we undertake is two-pronged. We analyse the policy arguments put forth in crucial decisions by the European and American highest courts to sanction vaccine-related injuries. In parallel, we investigate the place and role of scientific evidence in the legal framework disciplining liability of vaccine manufacturers. In doing so, we will identify convergence […]

‘Causation in the Law’

“In this context the basic questions concerning causation in the law are: (i) what are the criteria in law for deciding whether one action or event has caused another (generally harmful) event; (ii) whether and to what extent causation in legal contexts differs from causation outside the law, for example, in science and everyday life; […]

Michael Pratt, ‘What Would the Defendant Have Done But for the Wrong?’

ABSTRACT Suppose a defendant owed the claimant a duty that it could have discharged by taking any one of several different measures. It took none, violating the duty. When assessing damages, how should the court determine which measure the defendant would have taken had it not committed the wrong? I explain how this peculiar counterfactual […]

‘Legal Theory Lexicon: Causation’

“Causation is one of the basic conceptual tools of legal analysis. And for most purposes, we can get along with a notion of causation that is both vague and ambiguous. In the world of medium sized physical objects (automobiles, pedestrians, etc), our judgments about causation rarely depend on conceptual niceties. The driver’s negligence caused the […]

Joanna Manning, ‘Oh What an Unholy Mesh! Diamond v Royal Devon and Exeter NHS Foundation Trust [2019] EWCA Civ 585′

ABSTRACT In Diamond v Royal Devon and Exeter NHS Foundation Trust [2019] EWCA Civ 585, the Court of Appeal mistakenly applied the wrong test to the issue of the causal link between the surgeon’s failure to disclose material information and her physical injury. Even had that test been correct, its application to the facts was […]

Tasneem Haradasa, ‘Causation in Section 15 of the Property (Relationships) Act 1976: Analysing the New Zealand Supreme Court’s “Working Assumption” – Is It Really Working?’

ABSTRACT Scott v Williams concerned s 15 of the Property (Relationships) Act 1976. In situations of significant economic disparity post-separation, s 15 empowers courts to depart from the default rule of equal division of relationship property to compensate the disadvantaged partner. Causation is one of the jurisdictional hurdles. Only disparity ‘because of’ the division of […]

‘Scope of Duty and Causation: Chester v Afshar revisited’

In these episodes we bring the highlights from the recent 1COR seminar – ‘Scope of Duty and Causation: Chester v Afshar revisited’. We hear from Jonathan Metzer as he gives his interpretation of the case. Then Dominic Ruck Keene discusses the effects of the case. [Law Pod UK, 10 June]

Maytal Gilboa, ‘Multiple Reasonable Behaviors Cases: The Problem of Causal Underdetermination in Tort Law’

ABSTRACT This article introduces a significant yet largely overlooked problem in the law of torts: causal underdetermination. This problem occurs when the causal inquiry of a but-for test produces not one but two results, which are contradictory. According to the first, the negligent defendant is the likely cause of the plaintiff’s injury, whereas according to […]