ABSTRACT
In a recent decision, Justice Neil Gorsuch stated that the traditional common law rule in tort required ‘but-for’ or counterfactual causation. This is a historical error that could easily have been avoided. In addition to being a particularly poor example of law office history, I think it demonstrates two important things. First, it is a feature of legal education that we are all taught shibboleths and we swallow them whole until we have occasion to really question them. That the requirement of tort has ‘always’ been but-for causation is one of these. Second, the opinion underscores the importance of reading a case all the way through before citing it.
Lahav, Alexandra D, Why Justice Gorsuch Was Wrong About Causation in Comcast (July 23, 2020). 23 Green Bag 205, 2020.
First posted 2020-09-02 10:47:44
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