Causation in Tort Law: A Reconsideration
Research Handbook on the Economics Of Torts, (Jennifer Arlen, ed., Edward Elgar Publishing, 2013), Forthcoming
32 Pages Posted: 24 Jul 2013
Date Written: July 23, 2013
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: Suggested Citation