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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  

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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