Causation and lawyers' causes

Abstract

The subject of this conference-Causation and Financial Compensation-brings to a lawyer’s mind our field of tort law as the first and freest association. Other legal categories implicate this topic to some degree, for example, workers’ compensation and disability insurance, but the main arena is surely that of torts. From Bhopal to Agent Orange to the routine street corner collision, the tort action leaps to the lawyer’s thoughts as the paradigm and the main profit center. This close association accounts in large measure for the dubious results achieved by our legal system for both of the worthy goals in question-the ascertainment of causes and the provision of needed and deserved financial compensation. Let me start for a minute with the basic human needs and values that lead to conferences of this kind. Our concern is with catastrophic events or “accidents” causing injury and death, and how to provide for the resulting human needs. Consider two kinds of occurrence. In Case 1 a man in his middle years with a wife and children suffers a stroke one night and is permanently disabled. Assume that he has been gainfully employed until then but is as improvident as many of us are. He has little or no insurance to replace the suddenly lost income and only very meager savings. His dependents are left to fend for themselves. His wife may go to work and fill or partially fill the gap. Or the family may be forced soon onto the welfare rolls. In any event, the important point is that the community at large neither takes nor assigns to anyone major responsibility for “compensating” him or caring for him. He is a “victim” of illness but not a victim of any other person or people. Nobody is at “fault.” Nobody is expected to care for him or his dependents. Case 2 is similar in many respects. A similar man in similar circumstances crosses a street on his way to work and is hit by a truck careening through a red light. The truck is being driven in the service of a large, solvent corporation. The victim is permanently disabled. He has acquired a ticket to what one legal scholar, as the title