Managing Uncertain Causation in Toxic Exposure Cases: Lessons for the European Court of Human Rights from U.S. Toxic Tort Litigation

51 Pages Posted: 21 Jun 2017

See all articles by Katalin Sulyok

Katalin Sulyok

Eötvös Loránd University - Faculty of Law

Date Written: June 20, 2017

Abstract

Under Articles 2 (right to life) and Article 8 (right to private life) of the European Convention on Human Rights, the European Court of Human Rights (Strasbourg Court) decides cases involving personal health injuries allegedly caused by toxic exposures. Thus far no one has conducted a systematic inquiry on how the Strasbourg Court deals with uncertain causation inherent in toxic exposure cases. This paper provides an analytic framework for examining situations involving uncertain causal links under the Strasbourg system and evaluates the Strasbourg Court’s approach to uncertain causation and scientific evidence. It argues that the Strasbourg Court decides these cases based on certain proxies that describe some non-causal aspects of the case. By doing so, the Strasbourg Court can adjudge toxic exposure claims without evaluating scientific proof of causal links, which approach entails several drawbacks. The paper surveys the innovative legal tools US courts employ in toxic tort litigation to assess probabilistic scientific evidence and uncertain causation. It concludes with proposals for the Strasbourg Court to borrow certain techniques from toxic tort case law, which would help the Strasbourg Court adopt a more consistent approach to uncertain causation.

Keywords: causation, sciantific uncertainty, toxic torts, human rights adjudication

JEL Classification: K,

Suggested Citation

Sulyok, Katalin, Managing Uncertain Causation in Toxic Exposure Cases: Lessons for the European Court of Human Rights from U.S. Toxic Tort Litigation (June 20, 2017). Available at SSRN: https://ssrn.com/abstract=2989876 or http://dx.doi.org/10.2139/ssrn.2989876

Katalin Sulyok (Contact Author)

Eötvös Loránd University - Faculty of Law ( email )

Budapest
Hungary

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