Category Archives: Causation

Andre Nollkaemper, ‘Causation Puzzles in International Climate Litigation’

ABSTRACT The multiplicity of causes of climate change may make it very difficult, if not impossible, to establish causal connections between individual states’ greenhouse gas emissions and the harmful effects of climate change. This causation puzzle offers states a defence against claims that they would be responsible for harmful effects. However, the increasing body of […]

Jane Stapleton, ‘Unnecessary and Insufficient Factual Causes’

ABSTRACT Law recognizes a necessary (ie, but-for) factor as a factual cause. However, it is a common misconception that the but-for test is the exclusive test of factual causation. Longstanding case law reveals that a factor may be a factual cause of an outcome, even if it was neither necessary nor sufficient for it. This […]

W Jonathan Cardi, ‘Goodbye Substantial Factor, Hello Doull v Foster!’

INTRODUCTION For over twenty years, I have exposed my students to the conceptual vacuity of the ‘substantial factor test’ for factual (and, for that matter, proximate) causation. Most torts scholars I know do the same. I explain that although many jurisdictions still purport to use a substantial factor test, even such jurisdictions typically apply the […]

Blair Bullock, ‘Frivolous Floodgate Fears’

ABSTRACT When rejecting plaintiff-friendly liability standards, courts often cite a fear of opening the floodgates of litigation. Namely, courts point to either a desire to protect the docket of federal courts or a burden on the executive branch. But there is little empirical evidence exploring whether the adoption of a stricter standard can, in fact, […]

Richard Wright, ‘Dialogues on Causation with Stapleton’

ABSTRACT This paper, forthcoming in an Oxford University Press festschrift in honour of Jane Stapleton, retraces my discussions and debates with her over several decades on the concept of causation and its employment in determinations of legal responsibility. Until recently, she agreed with me on the need (i) to distinguish causation in its core sense […]

Sara Golru, ‘Judging the Genome: Using Genetic Evidence to Support or Refute Causation’

ABSTRACT This article explores the increasingly important role that genetic evidence is playing in toxic tort litigation, and indeed personal injury litigation more broadly, with reference to recent case law in both Australia and the United States. Genetic information can provide valuable evidence to support or dispute causation by showing genetic changes indicating a plaintiff’s […]

Shahshahani and Wittlin, ‘The Missing Element in Trademark Infringement’

ABSTRACT As trademark law is currently litigated and understood, a plaintiff may succeed on an infringement claim by showing that (1) it owns a valid trademark, and (2) the defendant used a mark in commerce that is likely to confuse consumers into thinking that the plaintiff’s and defendant’s products come from the same source. We […]

Steven Shavell, ‘An Alternative to the Basic Causal Requirement for Liability Under the Negligence Rule’

ABSTRACT The primary causal requirement that must be met for a negligent party to be held liable for a harm is a demonstration that the harm would not have occurred if the party had not been negligent. Thus, for a speeding driver to be found liable for harm done in a car accident, it must […]

Thomas Galligan, ‘Policy and Poppycock in Proximate Cause Cases A/K/A Scope of Liability and Starting to Make Sense’

ABSTRACT Studying proximate cause is like trying to decode mumbo jumbo. Courts continue to use words like direct, remote, natural and probable, foreseeable, hindsight, and intervening and superseding causes, and they make them sound like tests. They make them sound like law. Furthermore, as one test is debunked and another appears, courts continue to apply […]

Abraham and White, ‘Tort Law’s Temporality Impasse’

ABSTRACT It has long been said that the common law ‘works itself pure’. But in the law of torts, not always. This Article reveals and analyzes the inconsistencies among a set of tort doctrines whose relationship to each other has gone unrecognized for over a century-and-a-half. These are what we call the ‘temporality’ doctrines. Temporality […]