Two Kinds of Coincidence: Why Courts Distinguish Dependent from Independent Intervening Causes
26 Pages Posted: 25 Apr 2017
Date Written: April 24, 2017
The traditional distinction between “dependent” and “independent” intervening causes is not, as some scholars have supposed, an archaic relic. Rather, as is evident from Justice Kagan’s dissent last term in Utah v. Strieff, the distinction remains deeply intuitive. But what’s behind these intuitions? This paper argues that the distinction between dependent and independent intervening causes ultimately is rooted in a deeper distinction between two kinds of coincidence, one of which is, as a general rule, more improbable than the other. This conclusion has important implications for the law of proximate cause. If, as this paper argues, the intuitions underlying the distinction between dependent and independent intervening causes ultimately are intuitions about probability, rather than intuitions about, say, justice, or the nature of causation, then juries do not require separate instruction on the distinction. They will reach the right results by applying straight tests of foreseeability or probability.
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