Causation Actually

50 Pages Posted: 10 Feb 2016 Last revised: 15 Apr 2016

See all articles by Shahar Dillbary

Shahar Dillbary

University of Alabama School of Law

Date Written: February 4, 2016

Abstract

The article debunks the consensus that in concerted action, concurrent causes and alternative liability situations, the actual causation requirement is missing. While courts and scholars insist that in these cases tort law holds liable parties who clearly did not cause the victim’s harm, this article offers a novel approach. Using a simple model and applying it to leading decisions, it shows that a party who did not and could not even potentially injure the victim could nevertheless be a but-for reason for the harm. The article also challenges claims that causation theories like concerted action, substantial factor and alternative liability are fair to the victim or that they are designed to deter actors from engaging in “antisocial” activities. In deviation from the prior literature, this article reveals that these causation theories reduce the parties’ incentives to take care and result in more, rather than fewer, accidents. This article further shows that, despite lip service to the contrary, tort law promotes harmful activities that judges declare immoral, antisocial and illegal. The article argues, however, that in many cases this result can be justified on efficiency grounds. The article concludes that the but-for test should have a larger role in causation analysis, and it provides a number of policy recommendations to courts and lawmakers.

Keywords: actual causation, concerted action, concurrent causes, alternative liability, but-for, substantial factor, NESS, efficiency, welfare, fairness, deterrence

Suggested Citation

Dillbary, Shahar John, Causation Actually (February 4, 2016). 51 Georgia Law Review 1 (2016) (Forthcoming); U of Alabama Legal Studies Research Paper No. 2729476. Available at SSRN: https://ssrn.com/abstract=2729476 or http://dx.doi.org/10.2139/ssrn.2729476

Shahar John Dillbary (Contact Author)

University of Alabama School of Law ( email )

P.O. Box 870382
Tuscaloosa, AL 35487
United States

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