Causation is a source of confusion in tort theory, as well as a flash point for the debate between consequentialist and deontological legal theorists.1 Consequentialists argue that causation is generally determined by the policy grounds for negligence, not by a technical analysis of the facts.2 Conversely, deontologists reject the view that policy motives determine causation findings.
Causation has also generated different approaches within the consequentialist school. Some take an essentially forward- looking approach to formalizing causation analysis, finding causation analysis to be subsumed within the Hand Formula.4 Another approach within the consequentialist school closely examines the incentive effects of causation in the presence of an uncertain application of the negligence test.5 This approach makes use of the fact that the causation test is applied retrospectively, but it makes no attempt to reconcile itself with the forward- looking approach.
In this chapter I will try to bring some order to the arguments on causation.6 My perspective is consequentialist, but the arguments here have implications for the deontological theorists as well. In particular, by isolating the key elements of the causation cases, and introducing a “causation tree” to aid analysis, I hope to identify important missing pieces in the existing literature on causation. A better model of causation may help to resolve the arguments between different schools of tort theory, and to reconcile conflicting models within the consequentialist school.
This chapter is organized as follows. Part 2 discusses canonical causation cases, and identifies different notions of causation observed in the case law. Part 3 reviews the economic literature on causation. Part 4 presents a framework for causation analysis developed in Hylton and Lin (2013) that incorporates and extends preexisting economic approaches. Part 5 uses the framework of Part 4 to examine informational constraints binding on courts in causation cases. Part 6 concludes.
Keith N. Hylton,
Causation in Tort Law: A Reconsideration
Research Handbook on the Economics of Torts
Available at: https://scholarship.law.bu.edu/faculty_scholarship/185