Causation in Tort Law: A Reconsideration
Keith N. Hylton
William Fairfield Warren Distinguished Professor, Boston University; Professor of Law, Boston University School of Law
July 23, 2013
Research Handbook on the Economics Of Torts, (Jennifer Arlen, ed., Edward Elgar Publishing, 2013), Forthcoming
Boston Univ. School of Law, Law and Economics Research Paper No. 13-30
Boston Univ. School of Law, Public Law Research Paper No. 13-30
Causation is a source of confusion in tort theory, as well as a flash point between consequentialist and deontological legal theorists. Consequentialists argue that causation is generally determined by the policy grounds for negligence, not by a technical analysis of the facts. Conversely, deontologists reject the view that policy motives determine causation findings. Causation has also generated different approaches within the consequentialist school. In this chapter I try to bring some order to the arguments on causation by isolating key elements of the cases and introducing a "causation tree" that highlights the role of information. A better model of causation may help to resolve the arguments between different schools of tort theory, and to reconcile conflicting models within the consequentialist school.
Number of Pages in PDF File: 32
Keywords: intervening causation, Hand Formula, factual causation, proximate causation, negligence, foreseeability, ex post negligence, ex ante negligence
JEL Classification: K13, K19, K39Accepted Paper Series
Date posted: July 24, 2013
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