Category Archives: Causation

Yeung and Fee, ‘Limiting the fiduciary’s account of profits: but-for causation?’

ABSTRACT In an account of profits for breach of fiduciary duty, courts have understandably required some form of nexus between the breach and the gains to be disgorged, but have otherwise struggled to articulate a precise test. In the recent case of UVJ v UVH, the Singapore Court of Appeal broke new ground by requiring […]

Martin Jarrett, ‘Extracting Legal Causation from International Investment Law’

ABSTRACT Whenever the question of state responsibility in investor-state arbitration arises, the following causal question must be analysed: has the state conduct caused the investor’s investment loss? To answer this question, arbitral tribunals apply the approach advocated for by the International Law Commission, which in turn is the approached used by domestic courts. This is […]

Alexandra Lahav, ‘Why Justice Gorsuch Was Wrong About Causation in Comcast

ABSTRACT In a recent decision, Justice Neil Gorsuch stated that the traditional common law rule in tort required ‘but-for’ or counterfactual causation. This is a historical error that could easily have been avoided. In addition to being a particularly poor example of law office history, I think it demonstrates two important things. First, it is […]

Stephen Utz, ‘Causation and Fault Apportionment’

ABSTRACT We now have a professedly unified approach to assigning tort responsibility that treats simple and more complex cases in fundamentally different ways without acknowledging it. The strictly causal component of so-called ‘apportionment of fault’ (the US term) provides no basis for disproportionate assignments of liability but is treated as if it does. Other considerations […]

Wes Henricksen, ‘Intended Injury: Transferred Intent and Reliance in Climate Change Fraud’

ABSTRACT ‘For an intended injury the law is astute to discover even very remote causation’ – Justice Thurgood Marshall ExxonMobil, the world’s largest oil company, misled the public about climate change for at least two decades. Several states’ attorneys general have opened investigations into the potential criminality of the company’s conduct. The Securities and Exchange […]

Mazin Ezzeldin, ‘Adequacy and Foreseeability of the Financial Damage Analysis in International Arbitration’

ABSTRACT The financial damage analysis has always been problematic in the world of international dispute resolution, this issue is one of the most intricate questions in arbitration, and it became more sophisticated during the era of COVID-19, and will continue to be even after this pandemic is over. And this explains why the arbitrators usually […]

Lawrence Kessler, ‘Alternative Liability in Litigation Malpractice Actions: Eradicating the Last Resort of Scoundrels’

ABSTRACT The legal malpractice tort, however, has managed to withstand the winds of legal change. Particularly crucial has been the refusal to apply alternative causation doctrines. The refusal to apply causation doctrines that have been embraced in other areas has significant social effects. As a result, the consumers of legal services receive less protection from […]

Alexandra Lahav, ‘Chancy Causation in Tort’

ABSTRACT This Essay demonstrates that the causation inquiry in tort law, at least where causation is chancy, is largely a normative inquiry. Chancy causation is where the cause of an event can only be attributed probabilistically. Contrary to the understanding popular in both tort theory and doctrine, scientific fact plays only a minimal role in […]

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 […]