Statutory Proximate Cause

Abstract

Federal statutes often use general causal language to describe how an actor’s conduct must be connected to harm for liability to attach. For example, a statute might state that harm must be “because of” certain conduct. Federal courts have recently relied on this general causal language and other arguments to apply the common law idea of proximate cause to several federal statutes.

While legal scholarship has explored the relationship between statutes and the common law generally, it has not considered whether particular common law doctrines are especially problematic in the statutory context. This Article argues that using proximate cause in statutes raises many theoretical, doctrinal, and practical problems and that, to date, courts have engaged in crude statutory interpretation that largely ignores these issues.

This interpretation relies on demonstrably weak textual, intent and purpose-based arguments to justify using proximate cause. Courts have not been sufficiently attentive to congressional direction, separation of powers, the relationship of modern statutes to the common law, and whether proximate cause is theoretically stable. I coin the term “statutory proximate cause” to highlight the special issues that arise when this common law principle is used in statutes.

Keywords: Torts, Proximate Cause

JEL Classification: K13, K41