The Death of Causation: Mass Products Torts' Incomplete Incorporation of Social Welfare Principles

85 Pages Posted: 25 Apr 2006

See all articles by Donald G. Gifford

Donald G. Gifford

University of Maryland Francis King Carey School of Law


Legal actions against the manufacturers of disease-causing products, such as cigarettes and asbestos insulation, have redefined the landscape of tort liability during the past generation. These actions bedevil courts, because any particular victim often is unable to identify the manufacturer whose product caused her harm. Increasingly, but inconsistently, courts allow victims to recover without proof of individualized causation.

This article argues that instrumental approaches seek to turn mass products tort law into the equivalent of a social welfare program, not unlike workers' compensation or Social Security. As with any such program, the accident compensation system must include compensation entitlement boundaries, specifying which victims are entitled to receive benefits, and liability boundaries, delineating which parties are assessed to provide the necessary funds. Individual causation, together with a requirement of tortious conduct by the injurer, previously played both roles in the common law. When workers' compensation laws did away with those requirements, they substituted statutorily defined compensation entitlement and liability boundaries.

This article finds that Fleming James, Jr., Guido Calabresi, and other scholars undermined the individual causation requirement in the common law of torts to advance a social welfare ("instrumentalist") vision that they saw exemplified in workers' compensation. Yet when courts transferred recovery without proof of individual causation to the common law, they left behind the legislated boundary requirements present in workers' compensation.

This article concludes that any compensation system handling mass products torts must develop a structure of compensation entitlement and liability boundaries that coherently replaces individual causation. So far, courts have failed in this endeavor, probably because the task exceeds their institutional competencies.

Keywords: causation, enterprise liability, mass products torts, workers' compensation, legal history, nineteenth century European social welfare legislation, no-fault, Calaabresi, James, instrumental conception of torts

Suggested Citation

Gifford, Donald G., The Death of Causation: Mass Products Torts' Incomplete Incorporation of Social Welfare Principles. Wake Forest Law Review, Vol. 41, 2006, U of Maryland Legal Studies Research Paper No. 2006-11, Available at SSRN:

Donald G. Gifford (Contact Author)

University of Maryland Francis King Carey School of Law ( email )

500 West Baltimore Street
Baltimore, MD 21201-1786
United States

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