Chancy Causation in Tort

Abstract

This Essay demonstrates that the causation inquiry in tort law, at least where causation is chancy, is largely a normative inquiry. Chancy causation is where the cause of an event can only be attributed probabilistically. Contrary to the understanding popular in both tort theory and doctrine, scientific fact plays only a minimal role in chancy causation cases. Understanding this reality opens the door to considering what approach to causation is normatively desirable. The Essay proposes a change in the doctrine that effectuates this observation.

Methodologically, the Essay utilizes a metaphysical inquiry into causation as a first step to understanding this legal concept. If it is true that causation cannot be pinned down deterministically, as chancy causation cannot, then what determines factual causation? The answer is policy. I call this approach “pragmatic” because like the pragmatists of the late 1800s, it evaluates the use of an idea rather than claims regarding its metaphysical truth. But there is a metaphysical piece here as well. We only get to the point of applying a pragmatic analysis by understanding something about the metaphysics of causation.

Keywords: causation, tort, probability

JEL Classification: K13