Category Archives: Causation
Lando and Schweizer, ‘Causation and the Incentives of Multiple Injurers’
ABSTRACT Under the but-for requirement of causation, a tort injurer cannot be held liable for more than the difference between the loss the victim would have suffered if the injurer had not been negligent, and the loss that is in reality suffered. We ask whether this causation requirement yields efficient precaution in the context of […]
Alec Walen, ‘More Contra Moore on Absences as Causes’
ABSTRACT Michael Moore’s 2009 book Causation and Responsibility is a landmark work on causation and the law. In it he defends a thesis that seems highly intuitive, namely that there is no such thing as causation by omission. Jonathan Schaffer has offered a compelling rebuttal, the punchline of which is that on Moore’s view beheading […]
‘What Practitioners Can Teach Academics about Tort Litigation’: symposium in Journal of Tort Law
Expert Testimony Needs Judges to Act as ‘Gatekeepers’: The Maryland Court of Appeals Teaches Why (Victor E Schwartz) Shifting the Burden of Proof on Causation: The One Who Creates Uncertainty Should Bear Its Burden (Sara M Peters) Defending Government Tort Litigation: Considerations for Scholars (Paul Figley) What Practitioners can Teach Academics About Tort Litigation – […]
Dov Fox, ‘The Unintended Consequences of Genetic Engineering: Intergenerational Problems of Causation, Compensation, and Corrective Justice’
ABSTRACT New forms of genetic engineering promise relief from debilitating disorders. But they also risk unintended side-effects of off-target mutations. How should society respond to gene editing gone awry, when misplaced splices get passed on to offspring born generations later? Traditional principles of tort liability and corrective justice demand that complaining parties to show that […]
Betsy Grey, ‘Causal Proof in the Pandemic’
ABSTRACT In COVID-19 exposure cases, injured plaintiffs seeking compensation face a nearly insurmountable burden of proving causation given the highly contagious nature of the virus, the multiple sources of exposure plaintiffs may experience, and the developing state of the art on effective mitigation measures to prevent viral spread. This essay explores these issues. It examines […]
Sara Peters, ‘Shifting the Burden of Proof on Causation: The One Who Creates Uncertainty Should Bear Its Burden’
ABSTRACT Wrongdoing does not only produce the harm that is the subject of a tort suit. It also necessarily produces uncertainty regarding what would have occurred without the wrongdoing. As a result, in proving causation, plaintiffs must overcome an information deficit that is not of their own making. From case to case, there is variation […]
‘Causation in insurance law – a new interpretation?’
“The High Court in Financial Conduct Authority v Arch Insurance (UK) Ltd [2020] EWHC 2448 (Comm) have provided much needed guidance on business interruption insurance. Within the judgment was analysis on the law of causation for insurance policies. The decision may be perceived as, at best, widening the approach when undertaking the ‘but for’ test, […]
Simon Stern, ‘Proximate Causation in Legal Historiography’
ABSTRACT The variety of legal history published in general-interest law journals tends to differ from the variety published in history journals. This study compares the two varieties by examining footnote references in five general-interest law journals, and footnote references in two journals of legal history. In the law journals, cases and statutes accounted for the […]
Yeung and Fee, ‘Limiting the fiduciary’s account of profits: but-for causation?’
ABSTRACT In an account of profits for breach of fiduciary duty, courts have understandably required some form of nexus between the breach and the gains to be disgorged, but have otherwise struggled to articulate a precise test. In the recent case of UVJ v UVH, the Singapore Court of Appeal broke new ground by requiring […]
Martin Jarrett, ‘Extracting Legal Causation from International Investment Law’
ABSTRACT Whenever the question of state responsibility in investor-state arbitration arises, the following causal question must be analysed: has the state conduct caused the investor’s investment loss? To answer this question, arbitral tribunals apply the approach advocated for by the International Law Commission, which in turn is the approached used by domestic courts. This is […]