Causation in Tort Law: A Reconsideration

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

32 Pages Posted: 24 Jul 2013

See all articles by Keith N. Hylton

Keith N. Hylton

Boston University - School of Law

Date Written: July 23, 2013

Abstract

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.

Keywords: intervening causation, Hand Formula, factual causation, proximate causation, negligence, foreseeability, ex post negligence, ex ante negligence

JEL Classification: K13, K19, K39

Suggested Citation

Hylton, Keith N., Causation in Tort Law: A Reconsideration (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, Available at SSRN: https://ssrn.com/abstract=2297543

Keith N. Hylton (Contact Author)

Boston University - School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States
617-353-8959 (Phone)
617-353-3077 (Fax)

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