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Causation in Tort Law
Abstract
This paper critically surveys the various analyses of causation in the law and insists on the need to distinguish the factual (natural) caustion issue from the legal responsibility and ultimate liability issues and to focus the causal analysis on the tortious aspect of a person's conduct. It then demonstrates the failure of the traditional strong necessity (but-for) and substantial factor analyses to resolve properly overdetermined (duplicative and preemptive) causation cases and re-introduces, corrects and further develops the more comprehensive weak necessity (NESS: necessary for the sufficiency of a sufficient set) analysis underlaying Hart and Honoré's identification of causally relevant factors. Finally, it distinguishes the causation issue from the ultimate liability issue in overdetermined causation cases and in cases in which only risk exposure and probabilities of causation can be established.
... First, there is a 1 The discussion is inspired by the legal case Saunders System Birmingham Co v Adams 117 So 72 (Alabama, 1928). Among legal theorists the braking case and similar cases involving the non-use or misuse of missing or malfunctioning safety devices has attracted considerable discussion and there is no agreement on the causal verdict regarding such cases (Wright, 1985(Wright, , 2001(Wright, , 2011(Wright, , 2022Fischer, 1992Fischer, , 2006Stapleton, 2008;Abrams, 2022). There has also been philosophical interest in the braking case as an instance involving preemptive omission (Metz, 2022). 2 There have been various formalizations of legal criteria for causation such as Richard Wright's (1985) NESS condition (Baldwin & Neufeld, 2004;Halpern, 2008;Bochman, 2018;Beckers, 2021), and suggestions to formalize concepts of responsibility and blame (Chockler & Halpern, 2004;Halpern, 2016). ...
... Among legal theorists the braking case and similar cases involving the non-use or misuse of missing or malfunctioning safety devices has attracted considerable discussion and there is no agreement on the causal verdict regarding such cases (Wright, 1985(Wright, , 2001(Wright, , 2011(Wright, , 2022Fischer, 1992Fischer, , 2006Stapleton, 2008;Abrams, 2022). There has also been philosophical interest in the braking case as an instance involving preemptive omission (Metz, 2022). 2 There have been various formalizations of legal criteria for causation such as Richard Wright's (1985) NESS condition (Baldwin & Neufeld, 2004;Halpern, 2008;Bochman, 2018;Beckers, 2021), and suggestions to formalize concepts of responsibility and blame (Chockler & Halpern, 2004;Halpern, 2016). Several case studies have been provided in which this approach has been applied to clarify legal cases (Halpern, 2015;Chockler et al., 2015;Liepina et al., 2018) and other cases involving disagreement over causes (Statham, 2020;Fischer, 2021b;Hanley, 2022). ...
... Yet one might worry that the causal model is symmetrical regarding the rental company and the driver, and that the result of the causal analysis is thus built into the model from the get-go. In Sections 3 and 4 I address these concerns by examining more closely a well-known proposal to treat the braking case as an instance of preemptive prevention (Wright, 1985(Wright, , 2001(Wright, , 2011. According to this proposal, only the driver's actions are an actual cause because they preempted the rental company's failure. ...
Recently, there has been an increased interest in employing model-based definitions of actual causation in legal inquiry. The formal precision of such approaches promises to be an improvement over more traditional approaches. Yet model-based approaches are viable only if suitable models of legal cases can be provided, and providing such models is sometimes difficult. I argue that causal-model-based definitions benefit legal inquiry in an indirect way. They make explicit the causal assumptions that need to be made plausible to defend a particular claim of actual causation. My argument concerns the analysis of legal cases involving a combination of double prevention and causal redundancy. I show that discussions among legal theorists about such cases sometimes suffer from ambiguous assumptions about the causal structure. My account illustrates that causal models can act as a heuristic tool for clarifying such assumptions, and that causal models provide a framework for more accurate analyses of legal cases involving complex causal structure.
... In this example, the light being on represents a conjunctive, "multiple-necessary" scenario (Kelley 1973, Kun & Weiner 1973, Halpern & Pearl 2005: the two switches must both be on for the light to be on, so each one is individually necessarybut-insufficient for that outcome. Together, the two switches being on represent a "sufficient set" (Mackie 1965, Wright 1985, Baglini & Bar-Asher Siegal 2020 for the light to be on -a conjunction of multiple factors that are jointly sufficient for the result. Conversely, the light being off represents a disjunctive, "single-sufficient" scenario: any one switch being off is enough for the light to be off, so each one is individually sufficient-but-unnecessary. ...
... While the definitions of necessity and sufficiency are straightforward, it is much less clear how they play a role in the lexical semantics of words such as cause. Some researchers (Lewis 1973, Hobbs 2005, Neeleman & Van de Koot 2012, Nadathur & Lauer 2020 have defined cause primarily in terns of necessity, others in terms of sufficiency (used by Ikuta et al. 2014 for cause, and by Nadathur & Lauer 2020 for the periphrastic causative make), and others (Mackie 1965, Halpern & Pearl 2005, Wright 1985, Baglini & Bar-Asher Siegal 2020, Beller et al. 2020) using more elaborate combinations of the two. 7 In prior literature, the roles of necessity and sufficiency in the meaning of cause remain unresolved. ...
... Here, S1=OFF (the state where Switch 1 is off) is not globally necessary for L=OFF (we can imagine situations where L=OFF even when S1=ON, namely when S2=OFF), but is locally necessary for L=OFF if we take S2=ON as fixed. Similarly, C is locally sufficient for E if it is sufficient given a particular fixed setting of other variables (echoing the idea of a "sufficient set" from Mackie 1965, Wright 1985 Bar-Asher Siegal 2020 and the idea from Nadathur & Lauer 2020 of sufficiency with respect to a background situation in which other variables are fixed at the correct values). S1=ON is not globally sufficient for L=ON (if S2=OFF, the light would still be off even if S1=ON), but is locally sufficient for L=ON if we take S2=ON as fixed. ...
This paper sets out to explain why the verb cause tends to occur with negative-sentiment complements (cause damage, cause problems), as observed by Stubbs 1995. Formalized using causal models (Pearl 2000, Halpern & Pearl 2005, Schulz 2011), the analysis hinges on the asymmetric inference patterns licensed by necessary versus sufficient causes in the common scenario where some variables in a causal model remain uncertain. States of certainty/uncertainty are captured by subdividing the traditional definitions of necessity and sufficiency into a local version (all other variables fixed at particular values) and a global version (all other variables unsettled). C causes E is argued to entail that that C is locally sufficient for E, and to implicate that C is at least possibly locally necessary for E. With this definition, it is shown that C causes E can be truthfully applied to more uncertain contexts when C is a globally sufficient cause of E rather than a globally necessary one. Cause thus tends to occur with outcomes depending on a single globally sufficient cause -- outcomes which are moreover shown to be negative in sentiment, reflecting the independently motivated “Anna Karenina Principle” that bad outcomes tend to require single sufficient causes, thus indirectly explaining why cause prefers negative-sentiment complements. The meaning and collocational sentiment of cause are used to illuminate one another. EARLY ACCESS
... This idea has been developed further. We learned from Mackie (1965Mackie ( , 1974 and Wright (1985) that the sets of actual conditions which are jointly sufficient for the effect to occur must be minimal. And Baumgartner (2013) shows that the regularities must Holger Andreas and Mario Günther contributed equally. ...
In this paper, we propose a regularity theory of causation. The theory aims to be reductive and to align with our pre‐theoretic understanding of the causal relation. We show that our theory can account for a wide range of causal scenarios, including isomorphic scenarios, omissions, and scenarios which suggest that causation is not transitive.
It can be argued that intelligence activity has ethical value through
its important role in detecting, preventing, and countering threats that would
cause harm to the political community and its members. What has been
relatively overlooked, however, is the potentially (un)ethical role of
intelligence in the economic sphere—that is, whether secret intelligence acts
of economic espionage and economic covert action can be used against
another (potentially aggressive) state’s economy or economic actors as a
means of protecting one’s own economic, social, and military security.
Economic intelligence works to create a competitive economic or political
advantage, but this can cause harm that is more likely to be disproportionate
and inflicted on those who have done nothing to warrant it. The harms
caused by economic intelligence can be widely spread across society and
against those who are unjustified targets. To account for this, additional care
needs to be given to questions of proportionality and discrimination.
In this paper we will approach a cultural heritage sentence focusing on its causal content with the aim of providing a causal graph that, once pruned using bayesian techniques, schematically shows in an abbreviated way the essential content of the sentence for a non-specialist or general audience. For that purpose, the paper develops the following story line. We begin by noting the frequent controversies around heritage and its prosecution when discrepancies emerge. Next, we analyze a Spanish legal sentence about cultural heritage focusing on its causal structure and lexicon. In this respect, relevant aspects of causality are discussed both from a logical and a lexical point of view, which makes it possible to extract from the text of the judgment those sentences that are causally most salient. Differences between causality of physical and law facts are also cleared. Finally, a causal graph is depicted from the selected set of causal phrases of the sentence and a Bayesian analysis is applied to separate effective causes from the spurious ones for understanding the judge’s verdict, concluding the usefulness of the causal analysis with the aim to grasp the factual and evidentiary contents of a sentence about heritage.
Causation in the Law of the World Trade Organization: An Econometric Approach is for both scholars and practitioners of WTO law with an interest in the causal questions that WTO law raises. Assuming no prior knowledge of causal philosophy or statistical analysis, Dr Gascoigne discusses the problems in the current approach to causation in the WTO jurisprudence and proposes an alternative methodology that draws on causal philosophy and econometric analysis. The book demonstrates how this methodology could be harnessed to make causal determinations for the purpose of implementing trade remedies and to make out claims of serious prejudice. It also argues that the methodology could be helpful for assessing the impact of domestic legislation on policy objectives under the General Exceptions and the Technical Barriers to Trade Agreement as well as for calculating the amount of retaliation permissible under the Dispute Settlement Understanding.
Professor Tribe considers the accuracy, appropriateness, and possible dangers of utilizing mathematical methods in the legal process, first in the actual conduct of civil and criminal trials, and then in designing procedures for the trial system as a whole. He concludes that the utility of mathematical methods for these purposes has been greatly exaggerated. Even if mathematical techniques could significantly enhance the accuracy of the trial process, Professor Tribe also shows that their inherent conflict with other important values would be too great to allow their general use.
supra note 7; Williams, supra note 21
- Strachan
Strachan, supra note 7; Williams, supra note 21, at
For similar confusion by American writers, see Henderson, supra note 105, at 201-12; Peaslee, supra note 175. 262
For similar confusion by American writers, see Henderson, supra note 105, at 201-12; Peaslee,
supra note 175.
262. E.g., Kingston v. Chicago & N.W. Ry., 191 Wis. 610, 211 N.W. 913 (1927) (dicta); Cook v.
- St P S Minneapolis
- M Ste
- Ry
Minneapolis, St. P. & S. Ste. M. Ry., 98 Wis. 624, 74 N.W. 561 (1898);
Associated Dairies But see RESTATEMENT (SECOND) OF TORTS
- Jobling V
Jobling v. Associated Dairies,
1982 A.C. 794 (1981). But see RESTATEMENT (SECOND) OF TORTS § 432(2) comment d (1965);