Category Archives: Causation

‘The Legacy of the Mothers of Srebrenica Case’: special Issue of the Utrecht Journal of International and European Law

Introduction: Special Issue ‘The Legacy of the Mothers of Srebrenica Case’ (Cedric Ryngaert and Kushtrim Istrefi) Mothers of Srebrenica: Causation and Partial Liability under Dutch Tort Law (Rianka Rijnhout) The Right to Life in the Mothers of Srebrenica Case: Reversing the Positive Obligation to Protect from the Duty of Means to that of a Result […]

Stuart-Smith and others, ‘Filling the evidentiary gap in climate litigation’

ABSTRACT Lawsuits concerning the impacts of climate change make causal claims about the effect of defendants’ greenhouse gas (GHG) emissions on plaintiffs and have proliferated around the world. Plaintiffs have sought, inter alia, compensation for climate-related losses and to compel governments to reduce their GHG emissions. So far, most of these claims have been unsuccessful. […]

‘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 […]

Louise Austin, ‘Correia, Diamond and the Chester Exception: Vindicating Patient Autonomy?’

ABSTRACT In Chester v Afshar [2004], the House of Lords stated they were departing from the traditional rules of causation in order to vindicate the patient’s right of autonomy. Subsequent judgments in the Court of Appeal expressed concerns over the lack of clarity of the legal principles to be derived from that judgment. In Correia […]

Remington Slama, ‘So You’re Telling Me There’s a Chance: An Examination of the Loss of Chance Doctrine Under Nebraska Law’

ABSTRACT This Comment examines the loss of chance doctrine and its different permutations. It argues that Nebraska should adopt the ‘distinct compensable injury’ approach to the loss of chance doctrine to allow patients to recover damages when their original chance of survival or better outcome is less than 50%. Nebraska should adopt this form of […]

Justin Sytsma, ‘The Responsibility Account’

ABSTRACT There is now a great deal of evidence that norm violations impact people’s causal judgments. But it remains contentious how best to explain these findings. This includes that the primary explanations on offer differ with regard to how broad they take the phenomenon to be. In this chapter, I detail how the explanations diverge […]

Carlo Vittorio Giabardo, ‘Climate Change Litigation and Tort Law: Regulation Through Litigation?’

ABSTRACT Protecting our climate is a legal obligation. So, people – whether individually or in aggregate forms – are seeking reliefs for climate damages in courts (‘climate change litigation’). States, governments, supranational entities and heavily-polluting corporations are increased called to account before courts for their (in)action or for their direct contribution in causing the global […]

Simon Stern, ‘Proximate Causation In Legal Historiography’

ABSTRACT The variety of legal history published in general-interest law journals tends to differ from the variety published in history journals. This study compares the two varieties by examining footnote references in five general-interest law journals and footnote references in two journals of legal history. In the law journals, cases and statutes accounted for the […]

Samuel Castan Blashki, ‘“What World Are We Imagining?”: Counterfactual Reasoning and the “But For” Test in Lewis v ACT

ABSTRACT Counterfactual causal analysis raises fundamental philosophical questions with far-reaching practical implications for the assessment of compensatory damages. Australian courts frequently skirt around this vexed issue rather than pursuing a coherent, principled approach. The High Court has recently provided much-needed practical guidance on the operation of counterfactuals and the ‘but for’ test. This case note […]

‘Known Unknowns: Legal Responses To Intractable Factual Uncertainties’

“In arguments relating to General Stanwix’s Case, heard in the English Court of Chancery in 1772, one lawyer posed the following question: ‘Do not facts, in their very nature, precede laws? Is it not to them the creation and necessity of laws are owing? … If laws, therefore, were made for facts, and not facts […]