Involving Epidemiological Expertise into Causation: How to Cope with the Science Charade
MRIC Working Paper Series No. 18
16 Pages Posted: 26 Mar 2013 Last revised: 3 Jun 2013
Date Written: March 25, 2013
What is fascinating about causation is that on the one hand it is essential for market players and society to rely on definite rules and principles with regards to causation in order to allow for benefits from investments in trust. On the other, neither the lawmaker nor judges provide a definite answer to when causation in torts and insurance is established. A vast number of juristic literatures has tried to shine some light on the proper meaning of causation but has “left a trail of doubt and uncertainty.” Although lawyers emphasize that causation is a legal notion and hence needs to be determined legally, non-legal experts have always played a crucial role in the assessment of legal causation and thereby liability and amount of harm. Philosophers such as Hegel and Kant, physiologists such as Johann v. Kries and economists from the Chicago school of law and economics have tried to provide some answers for the causation problem in law. It is therefore no wonder that other expert groups such as recently epidemiologists have claimed for ground in the legal debate on causation. I will evaluate whether epidemiological expertise may contribute to solving the problem of legal causation and whether there are limits to this approach. I will test from a legal point of view if and how the involvement of epidemiological expertise can contribute to overcoming the weaknesses of contemporary causation theories and where it intensifies them (II). I will conclude that epidemiological expertise may provide one form of probability that the association under question is causal in the sense of factual causation. However, factual causation forms only one facet on the judicial balancing exercise. Epidemiological research may, if any, hence provide an indication for causation only, which forms one facet of the judicial balancing exercise when assigning costs on the parties (III).
Keywords: Epidemiology, Legal Epidemiology, Science Charade, Science, Law, Causation, Insurance
JEL Classification: G22, K13, K12, K32, K33
Suggested Citation: Suggested Citation