Category Archives: Causation

Ori Herstein, ‘Legal Luck’

Abstract Explaining the notion of ‘legal luck’ and exploring its justification. Focusing on how legal luck relates to ‘moral luck’, legal causation and negligence, and to civil and criminal liability. Herstein, Ori J, Legal Luck (February 2, 2018). Routledge Companion to the Philosophy of Luck, Ian M Church and Robert J Hartman eds (forthcoming).

Dmitry Karshtedt, ‘Divided Infringement, Economics, and the Common Law’

Abstract This essay responds to and builds on ‘Economic Theory, Divided Infringement, and Enforcing Interactive Patents’, an article published by Professor Keith Robinson. In his article, Professor Robinson analyzed liability under various tests courts have developed to address the so-called ‘divided infringement’ problem, which arises when multiple entities perform the steps of a method patent […]

Donal Nolan, ‘Causation and the Goals of Tort Law’

Abstract In this chapter, I explore the relationship between causation and the ‘goals’ of tort law. My contention is that it is impossible to understand or to resolve difficult questions concerning causation unless it is appreciated that these issues go to the heart of what tort law is about. The chapter is divided into three […]

Smillie, Eccleston-Turner and Cooper, ‘C-621/15 – W And Others v Sanofi Pasteur: An Example of Judicial Distortion and Indifference to Science’

Abstract This case commentary examines the CJEU’s recent decision in C-621/15 W and Others v Sanofi Pasteur MSD SNC [2017] ECR I. This commentary critically examines the decision through the lens of the cultural conflict between law and science. We argue that the CJEU’s decision reflects both a distortion of scientific knowledge and an improper […]

Emmanuel Voyiakis, ‘Causation and Opportunity in Tort’

Abstract This article shows that we can approach both ‘epistemic’ and ‘conceptual’ problems of causation in tort with the aid of a moral idea sketched out by HLA Hart and developed into a more general account by TM Scanlon. Applied to causation, that idea is that we may justify principles that require people to meet […]

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 […]