Actual Causation vs. Probabilistic Linkage: The Bane of Economic Analysis

Abstract

ONE of the focal points in the current debate about competing theories of tort liability is the actual causation requirement, which relieves a defendant of liability if his tortious conduct was not in fact a cause of the plaintiff's injury. It is generally recognized that any successful theory must come to terms with the requirement, since it has been the most pervasive and enduring requirement of tort liability over the centuries.' But the requirement has been troublesome for modern tort theorists, because of their difficulties either in articulating its precise meaning or in fitting it into a particular theory. The definitional problem has plagued proponents of the traditional corrective or theories of tort liability, which hold that, as a matter of individual justice between the plaintiff and the defendant, the defendant who has caused an injury to the plaintiff in violation of his rights in his person or property must compensate him for such injury, whether or not imposition of liability will further some collective social goal.2 The central role of the actual causation requirement in