Category Archives: Causation
Schauer and Spellman, ‘Probabilistic Causation in the Law’
ABSTRACT This paper challenges the widespread view that the legal system’s conception of causation is largely deterministic and token-level, that view stemming from the law’s principal focus on assigning ex post responsibility for past acts. We argue, in opposition to this view, that the probabilistic, ex ante, and type-level conceptions of causation that dominate the […]
Dan Burk, ‘Thirty-Six Views of Copyright Authorship, By Jackson Pollock’
ABSTRACT Humans have long used a variety of tools to convey artistic expression. Perhaps the most recent and mysterious artistic tools are machine learning or ‘artificially intelligent’ (AI) computer systems that have captured popular attention. When taken in isolation, these devices seem to operate autonomously, giving the illusion that there is no author behind their […]
Madeleine Morgan, ‘Revitalizing Louisiana’s Lost Chance Doctrine: Burchfield v Wright Sheds Light on the Need for Medical Expenses’
INTRODUCTION … Part I of this Comment provides background on relevant law regarding the lost chance doctrine and will trace the lost chance doctrine’s development in the United States and Louisiana. Part II articulates Louisiana’s approach to lost chance of a better outcome damages and will present the case Burchfield v Wright. Part III offers […]
Mihajlo Cvetković, ‘Causal Uncertainty: Alternative Causation in Tort Law’
ABSTRACT The causal link between the tortfeasor’s unlawful act and the resulting damage is an essential element of tort liability. There are situations in tort law practice where singular damage has more than one potential cause, so it is important to determine which one is legally relevant. In those situations, it is hard for the […]
‘Clinical Negligence: Birth Injury Claim’
“Clinical negligence litigation continues apace as Simeon Maskrey QC, sitting as a Deputy High Court Judge, handed down Judgment last week in a clinical negligence birth injury case (severe neuro-disability consequent upon an acute near total hypoxic-ischaemic insult) following a two-week trial which concluded early last month. This case highlights the ever-increasing importance placed on […]
Kevin Tobia, ‘Legal Concepts and Legal Expertise’
ABSTRACT A recent wave of empirical legal scholarship reports surprising findings about various concepts of legal significance, including the concept of acting intentionally, causation, consent, knowledge, recklessness, reasonableness, and law itself. These studies typically examine laypeople, but often draw broader conclusions about legal experts or law. Findings about laypeople’s (‘ordinary’) concepts have been taken to […]
Gilboa and Kaplan, ‘Loser Takes All: Multiple Claimants and Probabilistic Restitution’
ABSTRACT Consider these two seemingly unrelated recent scandals: The publicized fall from grace of cyclist Lance Armstrong, and the truly ruinous Madoff pyramid scheme. These cases (as well as a plethora of more mundane scenarios discussed throughout this Article) share a common feature, hitherto scantly discussed by courts and legal scholars: causal ambiguity in restitution […]
Knobe and Shapiro, ‘Proximate Cause Explained: An Essay in Experimental Jurisprudence’
ABSTRACT Among the oldest debates in American jurisprudence concerns the concept of ‘proximate cause’. According to so-called formalists, the legal concept of ‘proximate cause’ is the same as the ordinary concept of ‘cause’. The legal question of whether a cause is proximate for the purposes of establishing tort liability, therefore, is an objective matter about […]
James Norton, ‘Treating Chance Consistently: Recasting the Approach to Causation and Damage in Negligence’
ABSTRACT ‘Lost chance’ claims in the law of negligence have been the subject of much judicial disagreement and academic debate. Regrettably, issues of consistency and principle in the law’s treatment of chance have been chronically overlooked in this context. In both Australia and England, this has led to decisions compelling even the most optimistic proponents […]
Gemma Turton, ‘Causation and Risk in Negligence and Human Rights Law’
INTRODUCTION … The paper begins, in Section II, by elucidating the causal requirements and the function of causation within each area of law. It is beyond the scope of this paper to address all of the ECHR rights, so the focus is on Articles 2 and 3, and, in the final section Article 8, which […]