Abstract In Bagley v. Mt. Bachelor, Inc., the Oregon Supreme Court considered a topic of widespread, daily significance – the enforceability of tort waivers in the context of sports and recreation. Although these Sports Waivers vary considerably in their precise form and deployment, they function primarily to release organizers and providers of sports and recreation from claims of negligence. Almost every adult has signed such a waiver. Indeed, such waivers are so common that one might fairly think that (assuming the waivers are enforceable) the typical sports or recreation provider faces little to no accountability for its own negligence. Bagley stands out among recent cases because it opened new directions for how to evaluate and draft Sports Waivers.
{"title":"Bagley v. Mt. Bachelor, Inc.: A New Direction for the Enforceability of Sports Waivers?","authors":"Alfred C. Yen","doi":"10.1515/jtl-2023-0023","DOIUrl":"https://doi.org/10.1515/jtl-2023-0023","url":null,"abstract":"Abstract In Bagley v. Mt. Bachelor, Inc., the Oregon Supreme Court considered a topic of widespread, daily significance – the enforceability of tort waivers in the context of sports and recreation. Although these Sports Waivers vary considerably in their precise form and deployment, they function primarily to release organizers and providers of sports and recreation from claims of negligence. Almost every adult has signed such a waiver. Indeed, such waivers are so common that one might fairly think that (assuming the waivers are enforceable) the typical sports or recreation provider faces little to no accountability for its own negligence. Bagley stands out among recent cases because it opened new directions for how to evaluate and draft Sports Waivers.","PeriodicalId":39054,"journal":{"name":"Journal of Tort Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41633418","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Goodbye Substantial Factor, Hello Doull v. Foster!","authors":"W. J. Cardi","doi":"10.1515/jtl-2023-0018","DOIUrl":"https://doi.org/10.1515/jtl-2023-0018","url":null,"abstract":"","PeriodicalId":39054,"journal":{"name":"Journal of Tort Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-05-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49562604","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract In a well-known article, Thomas Merrill posed the question “Is Public Nuisance a Tort?”, ultimately answering the question in the negative: “public nuisance is not, and never was, a tort.” This article reaches a different answer to Merrill’s question. It argues that Merrill was wrong to conclude that the characterisation of public nuisance as tort was a recent invention and that public nuisance claims are not privately actionable by individual plaintiffs. The article presents a defence of the private action for public nuisance and concludes, on both an historical and a theoretical account, that public nuisance has long been understood as a tort at common law, and for good reason.
{"title":"Public Nuisance is a Tort","authors":"D. Bullock","doi":"10.1515/jtl-2022-0014","DOIUrl":"https://doi.org/10.1515/jtl-2022-0014","url":null,"abstract":"Abstract In a well-known article, Thomas Merrill posed the question “Is Public Nuisance a Tort?”, ultimately answering the question in the negative: “public nuisance is not, and never was, a tort.” This article reaches a different answer to Merrill’s question. It argues that Merrill was wrong to conclude that the characterisation of public nuisance as tort was a recent invention and that public nuisance claims are not privately actionable by individual plaintiffs. The article presents a defence of the private action for public nuisance and concludes, on both an historical and a theoretical account, that public nuisance has long been understood as a tort at common law, and for good reason.","PeriodicalId":39054,"journal":{"name":"Journal of Tort Law","volume":"15 1","pages":"137 - 175"},"PeriodicalIF":0.0,"publicationDate":"2022-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41381535","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract The deployment of self-driving cars seems to be the recent focus in several parts of the world. The operation of Robotaxis, shuttles and other forms of public transport in the United States [the US], China and France are illustrative of these trends. Some other parts of the world, such as Germany and Japan, have simultaneously been gearing up to open public roads to such cars. The recent trends indicate that implementation of such modern technologies is no longer a moot point. Instead, current questions have increasingly focused on how, not whether, technological developments such as these may safely be adapted into public life. The introduction of self-driving cars has not been free of complexities. Among other things, their introduction necessitates an urgent overhaul of the regulatory environment to address the unique challenges of modern technologies. On the legislative front, the formulation of clear, coherent rules to ascertain the rights and liabilities of the various stakeholders, such as users vis-à-vis owners and manufacturers, for harm caused by such vehicles has become indispensable. On several occasions, the determination of liability for harm caused by self-driving vehicles would involve an interplay between domestic accident-liability rules and conflict-of-laws rules, especially where the damage has allegedly been caused by a car that has been manufactured overseas. In the absence of a treaty or Convention, several major jurisdictions such as Germany, France, the UK and China have developed legal principles in tandem with the introduction of self-driving cars. In contrast, India has been unmoved by these global developments. As the world progresses towards a legal discourse to revamp the regulatory framework to address the challenges of self-driving cars, India has stood firm in banning their operation. On the other hand, consumer anxieties concerning the operation of such vehicles on public roads in India have consistently risen – depicting the lack of trust in the ability of the current legislative framework to safeguard the rights and interests of the potential users and injury victims. This article attempts to identify the source of consumer concerns. It critically evaluates the predicaments that adjudicators and claimants may encounter if ordinary legal principles for motor vehicle injuries are extended to self-driving cars. The article demonstrates the uncertainties in Indian law on the subject of self-driving cars. The present legislative principles merely stipulate the mechanism to ascertain the liability for fatal or grave injuries caused by motor vehicles without concurrently prescribing the consequences of forms of damage that are not fatal or grave. Consequently, the paper recognizes the need for special rules on the regulation of self-driving cars and, accordingly, examines some workable solutions that Indian lawmakers may consider adopting if the ban on self-driving cars is eventually lifted.
{"title":"Self-Driving Cars and Some (Unintended) Regulatory Barriers in India: A Road Less Travelled?","authors":"Saloni Khanderia","doi":"10.1515/jtl-2022-0013","DOIUrl":"https://doi.org/10.1515/jtl-2022-0013","url":null,"abstract":"Abstract The deployment of self-driving cars seems to be the recent focus in several parts of the world. The operation of Robotaxis, shuttles and other forms of public transport in the United States [the US], China and France are illustrative of these trends. Some other parts of the world, such as Germany and Japan, have simultaneously been gearing up to open public roads to such cars. The recent trends indicate that implementation of such modern technologies is no longer a moot point. Instead, current questions have increasingly focused on how, not whether, technological developments such as these may safely be adapted into public life. The introduction of self-driving cars has not been free of complexities. Among other things, their introduction necessitates an urgent overhaul of the regulatory environment to address the unique challenges of modern technologies. On the legislative front, the formulation of clear, coherent rules to ascertain the rights and liabilities of the various stakeholders, such as users vis-à-vis owners and manufacturers, for harm caused by such vehicles has become indispensable. On several occasions, the determination of liability for harm caused by self-driving vehicles would involve an interplay between domestic accident-liability rules and conflict-of-laws rules, especially where the damage has allegedly been caused by a car that has been manufactured overseas. In the absence of a treaty or Convention, several major jurisdictions such as Germany, France, the UK and China have developed legal principles in tandem with the introduction of self-driving cars. In contrast, India has been unmoved by these global developments. As the world progresses towards a legal discourse to revamp the regulatory framework to address the challenges of self-driving cars, India has stood firm in banning their operation. On the other hand, consumer anxieties concerning the operation of such vehicles on public roads in India have consistently risen – depicting the lack of trust in the ability of the current legislative framework to safeguard the rights and interests of the potential users and injury victims. This article attempts to identify the source of consumer concerns. It critically evaluates the predicaments that adjudicators and claimants may encounter if ordinary legal principles for motor vehicle injuries are extended to self-driving cars. The article demonstrates the uncertainties in Indian law on the subject of self-driving cars. The present legislative principles merely stipulate the mechanism to ascertain the liability for fatal or grave injuries caused by motor vehicles without concurrently prescribing the consequences of forms of damage that are not fatal or grave. Consequently, the paper recognizes the need for special rules on the regulation of self-driving cars and, accordingly, examines some workable solutions that Indian lawmakers may consider adopting if the ban on self-driving cars is eventually lifted.","PeriodicalId":39054,"journal":{"name":"Journal of Tort Law","volume":"15 1","pages":"177 - 214"},"PeriodicalIF":0.0,"publicationDate":"2022-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48262879","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract The article is devoted to the issue of compensation for pure economic losses under Russian law. The category of pure economic losses came into the focus of Russian researchers relatively recently. Currently, the mainstream discussion of Russian scholars on the topic is based on the analysis of foreign cases and arguments related to them. Meanwhile, Russian case law has been enriched with precedents that can lead to a non-consistent way for resolving such kind of disputes. We propose the approach that the reimbursement of pure economic losses directly depends on the determination of the limits of tort liability or its conditions. Thereby, the comprehensive analysis of these conditions will make it possible to more clearly define the scope of the pure economic losses. Nevertheless, the conservatism of the Russian doctrine of tort law and the inconsistency of law enforcement does not always allow us to apply the usual conditions of tort liability as a method for analyzing pure economic losses under Russian law. Thus, we consider the arguments for and against the recovery of pure economic losses that have developed abroad and are often discussed by Russian scholars. Besides, the article deals with the most important cases in which the courts have granted claims for the recovery of the pure economic losses. Nevertheless, the reasoning of the courts does not always look satisfactory, since it has not always been supported by the strict analysis of conditions of tort liability. We also consider cases where courts’ attention to factual circumstances prevails over their legal analysis. Although these cases reflect the current Russian political agenda, we posit that they provide with valuable material for legal discussion on the issue of recovery of pure economic losses. The coherent application of liability conditions would have removed the political context of these cases and led to the concentration of courts’ attention on the legal details of the cases. As a result, the authors postulate the need to analyze the core of tort liability, i.e., its conditions. This will create a more subtle mechanism for setting up tort liability and develop immunity of tort law to exogenous factors related to the political context.
{"title":"Pure Economic Losses from the Russian Perspective","authors":"A. Nektov, S. Stepanov","doi":"10.1515/jtl-2022-0006","DOIUrl":"https://doi.org/10.1515/jtl-2022-0006","url":null,"abstract":"Abstract The article is devoted to the issue of compensation for pure economic losses under Russian law. The category of pure economic losses came into the focus of Russian researchers relatively recently. Currently, the mainstream discussion of Russian scholars on the topic is based on the analysis of foreign cases and arguments related to them. Meanwhile, Russian case law has been enriched with precedents that can lead to a non-consistent way for resolving such kind of disputes. We propose the approach that the reimbursement of pure economic losses directly depends on the determination of the limits of tort liability or its conditions. Thereby, the comprehensive analysis of these conditions will make it possible to more clearly define the scope of the pure economic losses. Nevertheless, the conservatism of the Russian doctrine of tort law and the inconsistency of law enforcement does not always allow us to apply the usual conditions of tort liability as a method for analyzing pure economic losses under Russian law. Thus, we consider the arguments for and against the recovery of pure economic losses that have developed abroad and are often discussed by Russian scholars. Besides, the article deals with the most important cases in which the courts have granted claims for the recovery of the pure economic losses. Nevertheless, the reasoning of the courts does not always look satisfactory, since it has not always been supported by the strict analysis of conditions of tort liability. We also consider cases where courts’ attention to factual circumstances prevails over their legal analysis. Although these cases reflect the current Russian political agenda, we posit that they provide with valuable material for legal discussion on the issue of recovery of pure economic losses. The coherent application of liability conditions would have removed the political context of these cases and led to the concentration of courts’ attention on the legal details of the cases. As a result, the authors postulate the need to analyze the core of tort liability, i.e., its conditions. This will create a more subtle mechanism for setting up tort liability and develop immunity of tort law to exogenous factors related to the political context.","PeriodicalId":39054,"journal":{"name":"Journal of Tort Law","volume":"15 1","pages":"215 - 267"},"PeriodicalIF":0.0,"publicationDate":"2022-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43969836","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract Contemporary tort theory is a contest between instrumentalism and formalism. The prominence of instrumentalism is no surprise. American tort theory was born in the work of Oliver Wendell Holmes and his views were resolutely, if elusively, instrumentalist. Until very recently, economic views have dominated contemporary discussions of tort law in the American Legal Academy, and the economic analysis of torts is uncompromisingly instrumentalist. The rise of formalism, by contrast, is surprising. Legal realism swept over American legal thought long ago. Ever since, formalism has been treated more as epithet than as credible position by American legal scholars. In contemporary tort theory, though, formalism has roared back to life and struck some powerful blows against instrumentalism. Tort, these neo-formalists argue, is not an instrument for the pursuit of independently valuable ends. It is an institution whose norms are constitutive of just relations among persons. The bipolar, backward-looking form of the ordinary tort lawsuit has been the fulcrum that critics of economic analysis have used to pivot tort theory away from economic instrumentalism. That form, prominent tort theorists have persuasively argued, instantiates a backward-looking morality of responsibility, not a forward-looking morality of regulation. But the formalist enterprise has its own weaknesses. For one thing, formalist tort theory has tended to reshape tort law in ways that beg the questions that the theory purports to answer. For another, just relations among persons are a matter of substance as well as form. In the case of tort law, just relations require that tort law identify and safeguard those interests urgent enough to justify imposing reciprocal responsibilities of care and repair. We cannot, therefore, pull the rabbit of a convincing conception of tort law out of the hat of the field’s formal structure. What tort theory needs is two-pronged theory—theory that can both make sense of form and—by attending to tort law’s role in safeguarding our urgent interests from impairment and interference at each other’s hands—also illuminate tort law’s independently significant substance.
{"title":"Form and Function in Tort Theory","authors":"Gregory C. Keating","doi":"10.1515/jtl-2022-0020","DOIUrl":"https://doi.org/10.1515/jtl-2022-0020","url":null,"abstract":"Abstract Contemporary tort theory is a contest between instrumentalism and formalism. The prominence of instrumentalism is no surprise. American tort theory was born in the work of Oliver Wendell Holmes and his views were resolutely, if elusively, instrumentalist. Until very recently, economic views have dominated contemporary discussions of tort law in the American Legal Academy, and the economic analysis of torts is uncompromisingly instrumentalist. The rise of formalism, by contrast, is surprising. Legal realism swept over American legal thought long ago. Ever since, formalism has been treated more as epithet than as credible position by American legal scholars. In contemporary tort theory, though, formalism has roared back to life and struck some powerful blows against instrumentalism. Tort, these neo-formalists argue, is not an instrument for the pursuit of independently valuable ends. It is an institution whose norms are constitutive of just relations among persons. The bipolar, backward-looking form of the ordinary tort lawsuit has been the fulcrum that critics of economic analysis have used to pivot tort theory away from economic instrumentalism. That form, prominent tort theorists have persuasively argued, instantiates a backward-looking morality of responsibility, not a forward-looking morality of regulation. But the formalist enterprise has its own weaknesses. For one thing, formalist tort theory has tended to reshape tort law in ways that beg the questions that the theory purports to answer. For another, just relations among persons are a matter of substance as well as form. In the case of tort law, just relations require that tort law identify and safeguard those interests urgent enough to justify imposing reciprocal responsibilities of care and repair. We cannot, therefore, pull the rabbit of a convincing conception of tort law out of the hat of the field’s formal structure. What tort theory needs is two-pronged theory—theory that can both make sense of form and—by attending to tort law’s role in safeguarding our urgent interests from impairment and interference at each other’s hands—also illuminate tort law’s independently significant substance.","PeriodicalId":39054,"journal":{"name":"Journal of Tort Law","volume":"15 1","pages":"1 - 27"},"PeriodicalIF":0.0,"publicationDate":"2022-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49519477","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract Modern corrective justice theorists of tort law remain critical of the Anglo-American common law doctrine that allows a plaintiff to be awarded damages beyond compensation, and for the distinct purpose of punishing a defendant in a civil tort action. From the corrective justice standpoint, punishment is an illegitimate remedial purpose of the law of tort. So much so, that the historical doctrine of civil damages that continues to allow for it – exemplary (or punitive) damages – should be totally abolished. This article revisits a historical tort case that modern corrective justice tort theorists have praised for very nearly abolishing the exemplary damages doctrine in one leading common law jurisdiction: it critically explores the 1964 decision of the Appellate Committee of the United Kingdom House of Lords in Rookes v. Barnard. In doing so, it strives to set this theoretically significant reform of the English law of civil tortious recovery more vividly in the historical context in which it was undertaken. It contends that a deeper appreciation of Rookes’ theoretical significance requires taking fuller account of the context of ideas in which Lord Devlin – the Law Lord to whom the House’s decision on damages is ascribed – undertook it.
{"title":"Punishment in Tort: The Context of Ideas in Rookes v. Barnard","authors":"N. Sinanis","doi":"10.1515/jtl-2021-0010","DOIUrl":"https://doi.org/10.1515/jtl-2021-0010","url":null,"abstract":"Abstract Modern corrective justice theorists of tort law remain critical of the Anglo-American common law doctrine that allows a plaintiff to be awarded damages beyond compensation, and for the distinct purpose of punishing a defendant in a civil tort action. From the corrective justice standpoint, punishment is an illegitimate remedial purpose of the law of tort. So much so, that the historical doctrine of civil damages that continues to allow for it – exemplary (or punitive) damages – should be totally abolished. This article revisits a historical tort case that modern corrective justice tort theorists have praised for very nearly abolishing the exemplary damages doctrine in one leading common law jurisdiction: it critically explores the 1964 decision of the Appellate Committee of the United Kingdom House of Lords in Rookes v. Barnard. In doing so, it strives to set this theoretically significant reform of the English law of civil tortious recovery more vividly in the historical context in which it was undertaken. It contends that a deeper appreciation of Rookes’ theoretical significance requires taking fuller account of the context of ideas in which Lord Devlin – the Law Lord to whom the House’s decision on damages is ascribed – undertook it.","PeriodicalId":39054,"journal":{"name":"Journal of Tort Law","volume":"15 1","pages":"29 - 65"},"PeriodicalIF":0.0,"publicationDate":"2022-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41903467","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract Suppose a legal rule makes it negligent to have a loaded gun out in the open in a place of business. Should a defendant who violated this rule by using a loaded gun as a paperweight be liable for his client’s broken toes when the gun falls onto her foot? Problems manifesting this basic structure have occupied scholars and Restatement reporters for decades. In this essay, I reframe untaken precautions as a bundle of risk control services, each of which counteracts a particular risky element, like “shooting capacity” or “heaviness” in the case of the gun. Tort law ought to induce actors to produce all, and only, the risk control services that are worth the cost of providing. Cashing out that prescription is tricky because precautions often jointly provide multiple risk mitigation services, and more than one precaution may meet the legal standard. Nonetheless, the task becomes tractable if we examine the cost structure of precautions — and, analogizing to break-even analysis for products, identify which risk control services contribute to rather than detract from a precaution’s bottom line. The risk services framework partially redeems but also revises harm-within-the-risk and negligence per se doctrines that limit negligence liability based on the type of danger or category of victim involved in a given accident. By enabling us to assess which ostensible risk control services are really societal disservices, this approach provides a firmer basis for calibrating the scope of liability.
{"title":"The Gun and the Paperweight: Risk Control Services and Disservices","authors":"L. Fennell","doi":"10.2139/ssrn.4242348","DOIUrl":"https://doi.org/10.2139/ssrn.4242348","url":null,"abstract":"Abstract Suppose a legal rule makes it negligent to have a loaded gun out in the open in a place of business. Should a defendant who violated this rule by using a loaded gun as a paperweight be liable for his client’s broken toes when the gun falls onto her foot? Problems manifesting this basic structure have occupied scholars and Restatement reporters for decades. In this essay, I reframe untaken precautions as a bundle of risk control services, each of which counteracts a particular risky element, like “shooting capacity” or “heaviness” in the case of the gun. Tort law ought to induce actors to produce all, and only, the risk control services that are worth the cost of providing. Cashing out that prescription is tricky because precautions often jointly provide multiple risk mitigation services, and more than one precaution may meet the legal standard. Nonetheless, the task becomes tractable if we examine the cost structure of precautions — and, analogizing to break-even analysis for products, identify which risk control services contribute to rather than detract from a precaution’s bottom line. The risk services framework partially redeems but also revises harm-within-the-risk and negligence per se doctrines that limit negligence liability based on the type of danger or category of victim involved in a given accident. By enabling us to assess which ostensible risk control services are really societal disservices, this approach provides a firmer basis for calibrating the scope of liability.","PeriodicalId":39054,"journal":{"name":"Journal of Tort Law","volume":"15 1","pages":"67 - 107"},"PeriodicalIF":0.0,"publicationDate":"2022-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47075868","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract Chancy causation is where the cause of an event can only be attributed probabilistically. Contrary to the understanding popular in legal theory, scientific fact plays only a minimal role in chancy causation cases. As a matter of metaphysics, factual inquiry can only determine whether an event has a tendency to cause an outcome. Yet tort doctrine requires that the plaintiff prove a counterfactual: that but for the event, the outcome would not have occurred. Understanding that in chancy causation cases proving the counterfactual is impossible is the first step towards a discussion of what really ought to matter in chancy causation cases: whether imposing liability is normatively desirable. Methodologically, the Essay builds on scholarship about the metaphysics of causation as a first step to understanding this legal concept. If it is true that causation cannot be pinned down deterministically, as chancy causation cannot, then what determines factual causation? The answer is policy. I call this approach “pragmatic” because it evaluates the use of an idea rather than claims regarding its metaphysical truth. But there is a metaphysical piece here as well. We only get to the point of applying a pragmatic analysis by understanding something about the metaphysics of causation.
{"title":"Chancy Causation in Tort Law","authors":"Alexandra D. Lahav","doi":"10.1515/jtl-2021-0016","DOIUrl":"https://doi.org/10.1515/jtl-2021-0016","url":null,"abstract":"Abstract Chancy causation is where the cause of an event can only be attributed probabilistically. Contrary to the understanding popular in legal theory, scientific fact plays only a minimal role in chancy causation cases. As a matter of metaphysics, factual inquiry can only determine whether an event has a tendency to cause an outcome. Yet tort doctrine requires that the plaintiff prove a counterfactual: that but for the event, the outcome would not have occurred. Understanding that in chancy causation cases proving the counterfactual is impossible is the first step towards a discussion of what really ought to matter in chancy causation cases: whether imposing liability is normatively desirable. Methodologically, the Essay builds on scholarship about the metaphysics of causation as a first step to understanding this legal concept. If it is true that causation cannot be pinned down deterministically, as chancy causation cannot, then what determines factual causation? The answer is policy. I call this approach “pragmatic” because it evaluates the use of an idea rather than claims regarding its metaphysical truth. But there is a metaphysical piece here as well. We only get to the point of applying a pragmatic analysis by understanding something about the metaphysics of causation.","PeriodicalId":39054,"journal":{"name":"Journal of Tort Law","volume":"15 1","pages":"109 - 135"},"PeriodicalIF":0.0,"publicationDate":"2022-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45953155","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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