Category Archives: Causation
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 […]
Tim Trotman, ‘Synergistic causation in tort’
ABSTRACT The purpose of this article is to look at synergistic causation in the current law of tort. Existing references to synergy in case law will be examined, a definition of synergy put forward, and an attempt made to place synergy within the existing landscape of both material contribution, and Fairchild liability. Many examples discussed […]
Griffin Edwards, ‘An Empirical Assessment of the Foreseeability Test’
ABSTRACT This Article provides empirical support for the heavily debated role of foreseeability in tort law. In Palsgraf v Long Island, Judge Cardozo argued that foreseeability is a necessary requirement to establish duty while Judge Andrews dissented on the grounds that duty describes the general relationship that exists in society and that foreseeability should be […]
Mark Geistfeld, ‘Duty-Preserving Tort Rules as an “Old Category” for Justifying the Loss-of-Chance Doctrine in Medical Malpractice Cases’
ABSTRACT The loss-of-chance doctrine paradigmatically applies to wrongful death cases in which a physician omits malpractice and seeks to avoid liability on the causal ground that the patient probably would have died anyway from the pre-existing medical condition, even if it had been treated properly. By rejecting this argument and permitting recovery in these cases, […]
Kenneth Simons, ‘Lost Chance of a Better Medical Outcome: New Tort, New Type of Compensable Injury, or New Causation Rule?’
ABSTRACT In an important category of medical negligence cases, such as cases of doctors negligently failing to diagnose a potentially fatal disease, the defendant significantly increases the risk of harm to the plaintiff, but that increase in risk is insufficient to satisfy the preponderance test of factual causation, which requires proof that but for the […]
‘Refining the use of Probabilistic Evidence in Loss of a Chance Cases’
Elissa Philip Gentry, ‘Damned Causation’, 51 Arizona State Law Journal 419 (2022). A common but troublesome factual cause problem arises in the following medical malpractice scenario. A doctor negligently treats or fails to diagnose a patient’s medical condition, and the patient dies or suffers serious harm from the condition. The patient (or the patient’s family) […]
Aisha Saad, ‘Attribution for Climate Torts’
ABSTRACT This Article argues that advances in climate science overcome key challenges to US climate tort lawsuits by making it possible to attribute specific climate damages to human contributions to greenhouse gases. In the absence of comprehensive statutory regulation or executive action on greenhouse gas emissions, those seeking to mitigate and compensate the harms of […]
Meixian Song, ‘Causation or correlation: the chimera in section 11 of the Insurance Act 2015’
ABSTRACT Prior to the Insurance Act 2015, an insurer could refuse payment by relying on terms unrelated to the manner in which the loss occurred, or with the assured’s default. Section 11 of the Insurance Act 2015 reverses that and requires ‘the punishment to fit the crime’ by introducing a ‘could have increased the risk’ […]
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 […]
Marin Scordato, ‘Three Kinds of Fault: Understanding the Purpose and Function of Causation in Tort’
ABSTRACT Causation is a concept of enormous importance in the law. In just the last two years, the United States Supreme Court has explicitly considered its importance and meaning on at least three occasions, in areas of the law as diverse as specific personal jurisdiction, Title IX, and Section 1981. It has also been the […]