Causation, Responsibility, Risk, Probability, Naked Statistics, and Proof: Pruning the Bramble Bush by Clarifying the Concepts
78 Pages Posted: 9 Sep 2023 Last revised: 17 Sep 2023
Date Written: July 1, 1988
Abstract
This paper critically surveys the existing literature on causation in the law. It emphasizes, unlike most of the literature, the need to distinguish the factual (natural) causation issue from the further issues of legal responsibility and ultimate liability. Rejecting contrary philosophical arguments by Mackie and practical arguments by Kelman, it demonstrates the need to employ the more comprehensive weak necessity (NESS: necessary for the sufficiency of a sufficient set) analysis rather than the traditional strong necessity (but-for) analysis traditionally employed by almost all lawyers and philosophers to resolve propertly situations involving duplicative and preemptive overdetermination. Finally, it engages in an extensive discussion of the proof of causation in specific instances, which requires proof of sufficient instantiation of the relevant laws of nature and their generalizations by particular concrete facts in the specific instance rather than, as argued by many, mere proof of a 50+% statistical frequency or probability. When only risk (statistical probability) rather than actual causation can be proven, proportional liability based on the probability of causation might be proper in some situations involving inherently impossible proof of causation, but, contrary to what is argued in the last part of the paper, not by recognizing the risk as a distinct legal injury.
Keywords: causation, factual causation, legal responsibility, strong necessity, but-for, weak necessity, NESS, overdetermined causation, duplicative causation, preemptive causation, legal proof, statistical evidence, naked statistics, instantiated causal laws, risk, proportional liability
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