Once More into the Bramble Bush: Duty, Causal Contribution, and the Extent of Legal Responsibility

Abstract

Courts, lawyers, law students, and academics continue to confuse the empirical issue of causal contribution with the distinct normative issues of tortious conduct and legal injury, which precede and frame the causal-contribution inquiry, and the normative issue of the extent of legal responsibility for tortiously caused consequences, which follows the causal-contribution inquiry. In a number of prior articles, I have tried to distinguish and clarify these various issues, which arise not only in tort law, but also in much the same form in criminal law and many other areas of the law. I have focused primarily on distinguishing and clarifying the empirical issue of causal contribution and elaborating a comprehensive test, the "NESS" test, for resolving this issue. In this paper, which was prepared for the recent Wade Conference on the Third Restatement of Torts: General Principles, I revisit these issues. I focus more than I previously have on the Restatement's unhelpful, opaque, confused, and contradictory treatments of these issues, while also commenting on recent scholarship which fails to properly distinguish these issues. I defend the NESS test of causal contribution against some recent criticisms, propose a practical way of properly presenting the causal-contribution issue to students and jurors, criticize alternative proposed tests (including Jane Stapleton's "targeted but-for" test), further elaborate the notion of causal sufficiency (rather than mere analytical or empirical sufficiency) that underlies the NESS test, and provide a more detailed explanation of the NESS test's application to the conceptually most difficult types of causation cases, the overdetermined multiple-omission cases.