But-for Causation Research Articles

HOW THE SUPREME COURT DISTORTED TEXT, IGNORED HISTORY, AND GASLIGHTED THE BOLD PROMISE OF THE CIVIL RIGHTS ACT OF 1866 A Comcast Case Study

HOW THE SUPREME COURT DISTORTED TEXT, IGNORED HISTORY, AND GASLIGHTED THE BOLD PROMISE OF THE CIVIL RIGHTS ACT OF 1866 A <i>Comcast</i> Case Study

Causation and the incentives of multiple injurers

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 two or more injurers. Contrary to a widely accepted view, we find that but-for causation may lead to the existence of an inefficient Nash-equilibrium. We characterize when this may occur and compare those instances with precedent in which courts have not required but-for causation. Moreover, we ask whether alternative concepts of causation do better than but-for causation in terms of incentives. We find that while both the NESS-test and the Shapley provide optimal incentives when injurers act simultaneously, there are reasons for considering the Shapley-value as the more satisfactory concept of causation.

In Defence of AIB v Mark Redler

Abstract Following Target Holdings v Redferns and AIB v Mark Redler, it is now common theme that equitable compensation is underpinned by a compensatory mindset requiring but-for causation. This article argues that, despite criticisms that the compensatory reasoning does not sit well with the orthodoxy, the law has moved on. The traditional accounting mechanism should no longer be maintained since it could create unjust results. The better approach is to look at the obligation in question which, together with the underlying policy and the remedial goal, informs the proper remedy to a particular claim.

The Coming Causation Revolution in Employment Discrimination Litigation

For more than a decade, employment discrimination causation law has been a confusing, often overly restrictive quagmire that has contributed substantially to the paltry success rate of plaintiffs in employment discrimination cases. Most of these cases are dismissed pre-trial, all too often based on a failure of causation. A key reason traces back to loose and misleading language — centered on a single word — in a 2009 Supreme Court opinion involving the but-for causation standard that applies in most discrimination cases. The Court said that the discriminatory motive must be “the” but-for cause of the employer’s action when it should have said “a” but-for cause. This language incorrectly implies that the discriminatory motive must be the sole cause — “the” cause — of the employer’s action, and though that standard is demonstrably wrong, many courts nevertheless have required a sole-cause showing. In 2020, the Supreme Court held in Bostock that gay and transgender workers are protected from employment discrimination. But it did more than that. The Court discussed but-for causation in broad terms, making it clear that but-for cause does not require proof of sole causation. That discussion will likely change how causation impacts not only gay and transgender workers but in employment discrimination litigation generally. This article explains why. It studies the root of the causation problem and shows its real-world consequences with extensive case law analysis. Then, it analyzes how Bostock’s broad causation language, properly interpreted, should apply to most employment discrimination claims and details why Bostock should remedy each of the identified causation issues. Based on its study of the post-Bostock litigation outcomes and the promise of Bostock’s broad application, the article predicts a revolution in employment discrimination litigation.

Dimensional Disparate Treatment

Last year’s decision in Bostock v. Clayton County was an important victory for gay and transgender workers—but the Supreme Court’s textual analysis has failed to persuade a number of thoughtful commentators, and it threatens to leave anti-discrimination law in disarray. The root of the problem is that Bostock trumpeted a “simple test” of but-for causation that could not alone explain the correctness of the results that the Court reached. This explanatory gap not only has left Bostock’s holding vulnerable to attack, but also has engendered uncertainty about the panoply of disparate-treatment questions for which Bostock now provides the governing precedent. Indeed, because Bostock took it upon itself to interpret Title VII from textualist first principles, its analysis will orient—and perhaps disorient—judicial approaches to all manner of disparate-treatment claims for many years to come. What disparate-treatment law needs, but the Court has thus far failed to provide, is a coherent, general, and textually grounded account of what it means for a decision to be made “because of” a protected characteristic—one that accords with Bostock’s motivating intuitions but transcends its overly simplistic account of its own reasoning. Drawing on a venerable body of work in analytic philosophy concerning “determinable” properties and their corresponding “determinates,” this Article develops an account that meets that need. In brief, this “dimensional” account of disparate treatment recognizes a decision as being made “because of [an] individual’s X” whenever the decision is motivated by a property that characterizes the individual in the dimension of X—regardless of whether a different decision would have been made if the individual had belonged to any other determinate class that is defined along that dimension. After introducing and defending this analysis, the Article traces its implications for a wide range of current controversies—involving bisexuality, pregnancy, race and gender stereotypes, and more. Finally, the Article defends the dimensional account and its implicit application in Bostock on textualist terms. It argues that the account captures the meaning that an “ordinary reader” would ascribe to Congress’s enactment of a disparate-treatment statute—so long as the reader construes the statute in light of characteristic features of legislative communication, as sophisticated accounts of modern textualism would demand.

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 but-for causation, apparently branching off from the Anglo-Australian jurisprudence which advocates a more liberal approach to causation. While the but-for test is practically appealing as a technique well known to various areas of law, this article seeks to assess the normative justifications for such a bold move, in view of the attendant issues of deterrence, the unique policy of fiduciary law, and the juridical nature of an account of profits.

Dehumanization 'Because of Sex': A Neutral Approach to the Rights of Sexual Minorities Under Multiaxial Analysis

Although Title VII prohibits discrimination against any employee “because of such individual’s . . . sex,” legal commentators have not yet accurately appraised Title VII’s trait and causation requirements embodied in that phrase. Since 2015, most courts assessing the sex discrimination claims of LGBT employees began to intentionally analyze “sex” as a trait using social-construction evidence, and evaluated separately whether the discriminatory motive caused the workplace harm. Responding to what this Article terms a “doctrinal correction” to causation within this groundswell of decisions, the Supreme Court recently issued an “expansive” and “sweeping” reformulation of but-for causation in Bostock v. Clayton County, one that combined the sex-trait analysis with causation analysis in determining that “traits or actions” related to sexual orientation or gender identity are protected. Because Bostock did not foreclose the use of social evidence or intersectional approaches in additional subordination contexts in which sex is a factor, this Article builds on this important development by introducing “multiaxial analysis,” a framework with which judges and stakeholders identify the role of Title VII’s protected traits as socially constructed along four axes: the aggrieved individual’s self-identification, the defendant-employer, society, and the state. This context-sensitive approach to subordination has the potential to give fuller effect to Title VII’s provisions and purposes as compared to sex-stereotyping theory or the Court’s reformulated “but-for causation.” Uncoupling causation from the sex trait analysis realizes the statute’s civil rights protections within relational, structural, and institutional dynamics as the law increasingly recognizes that the scope of sex extends beyond a fixed binary.

But-for Causation and the Implementability of Compensatory Damages Rules

Abstract A damages rule is called compensatory if it requires compensation of each party who complied with the due care standard for harm caused by deficient precaution of the other party. The two main contributions of this article are as follows. First, we show that any Nash equilibrium of the game induced by a compensatory damages rule enhances welfare compared to the welfare that would have been attained if both parties had complied. This is true irrespective of whether the due care standards are set at their socially optimal level. Second, we provide a general result for evaluating the conditions under which courts have sufficient information to implement compensatory damages rules. This is the case when the available evidence allows courts to determine whether the injurer’s precaution choice was the but-for cause of any harm to the victim. The exact levels of precaution and harm need not be observable (JEL K13).

Probabilistic Partial Causation and a Gap in the Criminal Law

Cases in which a person merely contributes to the probability of harmful events such as death cannot be properly handled in the criminal law as it currently exists. These cases provide another kind of case (in addition to overdetermination cases) demonstrating that factual causation should not be understood in terms of but-for causation. They also imply that the corpus of substantive law is incomplete.

Causality and Incentives with Multiple Tortfeasors

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 actually suffered by the victim. We ask whether this causation requirement yields efficient care levels when two or more injurers act simultaneously under the negligence rule. Contrary to a widely accepted view, we find that incentives may be insufficient under but-for causation, since one injurer's negligence may lower the impact of another injurer's negligence, in which case there may exist both an efficient and an inefficient Nash-equilibrium. When standards of due care are set optimally, this can only occur when there is multiple sufficient causation - as when either of two injurers' negligent acts is in itself sufficient for part or all of the injury - and/or when a negligent act confers a benefit to the victim. Instead of but-for causation, broader notions of causation may be applied; the Third Restatement of Tort Law advocates the NESS-test. We compare this test with the Shapley-value and find that while both yield efficiency when injurers act simultaneously, the latter does so in a less inclusive manner. Finally, we consider rules adjacent to the concept of causation in the light of our analysis, for example, the rule concerning the burden of proof of divisibility of damages and the treatment of over-determined injury when one of the factors sufficient for the harm is a non-negligent act or occurrence.

Say What You Mean, and Mean What You Say: Rebuilding the Building Blocks of But-For Causation

What does ‘causation’ actually mean? Is saying that an act ‘caused’ an outcome linked to an observable notion of cause and effect; or is such a statement based upon supposition and guesswork? This early draft article begins to break down and rebuild the term ‘causation’, and what is required to ‘prove’ a causal link in Canadian law. Courts, theorists, and practitioners have never neatly grasped the core of what causation means. The way science approaches cause is, by necessity, different to the way law approaches cause. The standards and nomenclature in the former are necessarily precise and ordered; the standards in the latter are, perhaps unnecessarily, less precise and disordered. This early draft (to which critical comments are greatly appreciated) works through the haze of imprecise language to begin to unearth what causation does, or perhaps should, mean.

The Fruit of the Poisonous Tree in IP Law

If a police officer searches my home illegally and finds evidence of a crime there, the criminal law suppresses not only that evidence, but evidence derived from the search that was not itself found illegally. This doctrine is known as the “fruit of the poisonous tree.” The animating principle of the fruit of the poisonous tree doctrine is but-for causation: if you had not violated the law, you wouldn’t have found the evidence, and so you wouldn’t have followed whatever investigative path was triggered by the finding of that evidence. The newly discovered evidence – the fruit – is tainted by the poison of the illegal search.Civil law also concerns itself with chains of causation, both in determining liability and in ordering relief. But civil does not apply the logic of the fruit of the poisonous tree to chase down every consequence of a wrong. Tort law, for example, requires proof not only of but-for causation but also that the defendant was a sufficiently proximate cause of the injury. Plaintiffs can recover for some (but not all) unforeseeable consequences. And while remedies law generally tries to return plaintiffs to their rightful position, compensating them for injuries and giving them what they could have expected to receive absent the wrong, it also limits both who can obtain compensation and the sort of thing for which they can be compensated. Intellectual property (IP) regimes in particular struggle with causation issues in one important set of cases: defendants who infringe an in IP right in the course of making a product that does not itself infringe that right. Suppose, for instance, that I copy your song onto my laptop in order to make my own song that samples yours. Depending on how much I use, the final song I release may not infringe your copyright, but intermediate versions of my song might, as might the original copy. Or suppose I use a patented microscope without permission to make a scientific discovery that turns into a new drug. The drug doesn’t infringe the patent, which is, after all, on a microscope, not a chemical. But the act of research might infringe. Or I might steal your product to figure out how it works, not so that I can copy it but so I can make a one that works a different way. My final product doesn’t incorporate your secret, but I used my ill-gotten knowledge of your product to get there.IP law is all over the map in dealing with such cases. Some IP regimes, like trade secret law, apply the fruit of the poisonous tree logic, allowing the plaintiff to recover not only for the profits the defendant made from secrets she actually stole and used but also for the profits of any product that resulted from the use of those secrets. It will also grant a “head-start” injunction against even non-infringing products. Copyright law, by contrast, does not permit a plaintiff either to obtain an injunction or to recover damages against non-infringing final products. Patent law is somewhere in between, refusing to enjoin non-infringing products but leaving the door open to reach-through royalty claims.It is not clear that these differences reflect any considered judgment about when IP law should prevent or punish the making and sale of non-infringing products tainted by infringement in the process of creation. In this article, I offer a cohesive way to think about the fruit of the poisonous tree in IP law. Whether IP remedies should extend to tainted but non-infringing products should be a function of the mental state of the infringer, the likelihood that infringement will be detected, and the contribution made by the final, non-infringing product. Balancing those three factors won’t necessarily lead all IP regimes to treat the fruit of the poisonous tree in the same way. But it does both explain and suggest some needed reforms to the current legal rules.

A Common Sense Understanding of Inevitable Discovery: Why Nix v. Williams Does Not Require Active Pursuit in the Application of the Inevitable Discovery Doctrine

Suppose that an officer has the requisite probable cause necessary to obtain a search warrant to seize evidence, but seizes the evidence that a search warrant would have rendered before obtaining the warrant. Should the evidence that was seized be admissible under the theory of inevitable discovery? This question's answer ultimately depends on the jurisdiction’s position on “active pursuit.” The idea of active pursuit was born out of the facts of Nix v. Williams, and has caused a divide amongst the various circuits of the United States Court of Appeals. Some have required it while others have expressly held it unnecessary. This article is the first to draw upon the Court’s dicta from Hudson v. Michigan to advance the argument that active pursuit should not be required and that the inevitable discovery doctrine should be analyzed through a “but-for” causal analysis. But-for causation is required in order to exclude evidence, and if police misconduct is not a but-for cause of the discovery of evidence the evidence should be admitted regardless of whether there was active pursuit. This article is also the first to break down the three different approaches taken at the circuit court level to resolve this issue, and then explain why the but-for causal analysis best effectuates the Court’s holding from Nix v. Williams as well as the Court’s recent exclusionary rule jurisprudence.

Substitutive performance claims for breach of trust: final nail in the coffin? AIB Group (UK) Plc v Mark Redler &amp; Co Solicitors [2014] UKSC 58

Traditionally, a beneficiary could require a trustee to reconstitute misapplied trust property without having to prove causation of loss, by seeking substitutive performance of the trustee’s primary obligation to deliver the trust property. This position was altered in Target Holdings v Redferns, where the House of Lords held that a beneficiary is only entitled to equitable compensation for loss he would not have suffered but for the trustee’s breach. The correctness of that decision has been much debated. In the recent case of AIB v Redler, the Supreme Court reaffirmed the but-for causation requirement, and it is suggested that this development may have sounded the death knell for substitutive performance claims in England.

The Gross Confusion Deep in the Heart of &lt;i&gt;Univ. Of Texas S.W. Med. Center v. Nassar&lt;/i&gt;

This essay addresses a fundamental issue underlying the Supreme Court’s consideration of Univ. of Texas S.W. Med. Center v. Nassar, namely the parameters of the factual causation standard applicable in disparate treatment cases. This essay also addresses a previously unrecognized area of agreement between the plurality and dissent in Price Waterhouse v. Hopkins that can resolve the factual causation issue underlying Nassar. The Court’s most recent pronouncement on this issue, in Gross v. FBL Financial Services, has led to confusion as defendants and courts have interpreted Gross to require sole factual causation for the plaintiff to prevail. Yet, sole causation is inherently absurd as every occurrence has a virtually infinite number of factual causes. Nassar provides the Court with a golden opportunity to eliminate the causal confusion that followed Gross and replace it with causal coherence. To do so, this essay argues, the Court should explicitly adopt the unrecognized factual causation standard from Price Waterhouse: that but-for causation in the disparate treatment context is established when the employer’s consideration of a protected trait was a necessary element of the set of factors that caused the decision.

Tortifying Employment Discrimination

Although Title VII is often described as a “statutory tort,” that label has, until recently, been mostly metaphorical. In Staub v. Proctor Hospital Corp., however, the Supreme Court took an important first step in incorporating concepts from tort law into the antidiscrimination statutes. Although Staub received some attention as a “cat’s paw” (or subordinate bias) liability decision, it will have broader significance for two reasons. First, the Court explicitly adopted tort law’s definition of “intent” for statutory discrimination cases, thus raising a threshold question of the what it means to “intend to discriminate.” This Article suggests that, rather than widening the notion of discriminatory intent, which Staub at first blush seems to do, the opinion actually adds another layer to the plaintiff’s burden – for liability, the decision-maker must now both have the requisite wrongful motivation and either desire a resulting “adverse employment action” or believe that such an action is substantially certain to occur. Second, and perhaps more important, Staub for the first time imported the concept of proximate cause into the antidiscrimination context from its usual home in negligence law. Such a transplant is especially remarkable because proximate cause was unnecessary for resolving the case before the Court. The only purpose of adding a proximate cause requirement is to limit liability short of the full reach of but-for causation, and limiting employer liability tracks what the Court has done in other areas of federal statutory law. In those areas, the Court has not only applied proximate cause to intentional conduct (a phenomenon largely foreign to tort law from which the Court is theoretically borrowing) but has also adopted a more rigorous view of what proximate cause requires. Rather than looking only to the foreseeability of the plaintiff or the harm, which is the majority approach in the negligence arena, the Court has articulated a policy-driven perspective that allows it to restrict liability in the name of applying traditional tort doctrine. After exploring these issues, the Article argues that Staub’s deployment of proximate cause in the discrimination area may have been intended to set the stage for a later effort to narrow the reach of Title VII and the other discrimination statutes by finding that “cognitive bias” does not proximately cause a resulting adverse employment action. While there is a spirited debate about whether Title VII bars adverse employment actions resulting from such bias, Staub may have set the stage for resolving that controversy by marking the path for a holding that only conscious bias can proximately cause an adverse employment action.

Medical negligence: legal theory and surgical practice

Our medical decisions and actions must be made in accordance with accepted standards of care. Surgeons should have a working knowledge of the law so that they can practice in a reasonable, responsible and rational manner. The key areas of law for surgeons are (i) duty of care, (ii) causation and (iii) consent. The standard of care is the objective, legal test by which duty of care is assessed. The tests of breach of duty of care are objective. The primary test for doctors is the Bolam test which states that if your actions (or omissions) would be the usual practice of a reasonable or responsible group of doctors then you satisfy the test. If breach of duty of care is established, the claimant must demonstrate that the breach caused some harm. The test is but-for causation, i.e. if it is established that but-for the breach the bad outcome would not have occurred the claimant will be able to link the breach to the damage done. Consent for surgery is a specific duty of care for doctors. Consent is based upon the principle of autonomy. Consent must be to all material risks of surgery. For surgical procedures, consent must be in writing.

Because Judges Are Not Angels Either:1 Limiting Judicial Discretion by Introducing Objectivity into Piercing Doctrine

Ordinarily, individual shareholders are immune from liability arising from a corporation’s activities through the doctrine of limited liability. That is, absent a personal breach of duty either in contract or in tort, an individual shareholder is only financially exposed to judgments against, or debts of, the corporation up to the shareholder’s investment. All rules, of course, have exceptions. The most frequently litigated of those exceptions is the doctrine of piercing the corporate veil. Notwithstanding the frequent litigation surrounding the doctrine and the “bright-line rules” courts have created to cabin the doctrine, disparate results frequently occur both internally within a jurisdiction and externally between jurisdictions, as, in most cases, the courts use a factually specific factors analysis to determine when piercing is proper. These disparate results have led to concerns by corporate scholars, as the lack of predictability and consistency in the doctrine’s application is concerning as a matter of justice, as a matter of logical consistency, and, perhaps most practically, as a matter of counseling clients to avoid this unruly beast. This Article argues that piercing doctrine could be made predictable and consistent through adoption of a conjunctive test requiring objective criteria for the elements of unity, injustice, causation, and insolvency. Part II of this Article briefly discusses the historical roots of the piercing doctrine, indicating its origination and the typical categorizations and classifications of its various incarnations. This section further reviews each state’s classifications of piercing doctrine, ultimately finding the traditional classifications are generally lip-service used to mask an unguided, and inconsistently applied, factors test. Part III of this Article discusses four remedies other scholars have advocated to alleviate the doctrine’s predictability concerns. This Part further discusses the deficiencies of each of those proposals. Finally, Part IV argues the doctrine can be cabined through the introduction of a four-part conjunctive test. First, the proposed test requires an injustice prong, compelling plaintiffs to demonstrate the corporation engaged in fraud, engaged in misrepresentation, or was undercapitalized. Special emphasis is provided in this section to the element of undercapitalization and a novel method of generating an objective test for determining undercapitalization. Ultimately, the Article advocates adopting the tort doctrine of custom as a mechanism to contain the discretion otherwise rampant in undercapitalization determinations. Second, the proposed test requires an objective unity element that is premised upon control over the decision-making process. This element dispenses with the notion of seeking to determine which shareholder has corporate unity and instead focuses piercing analysis on which shareholder(s) have unity with the decision. Third, the proposed test requires a causal element, requiring plaintiffs to demonstrate the inequitable conduct gave rise to the plaintiff’s harm. This section incorporates but-for causation and proximate causation into the piercing test. Finally, the proposed test requires an insolvency prong, requiring plaintiffs to prove the corporation is insolvent to pay the plaintiff’s debt.

The Insubstantiality of the 'Substantial Factor' Test for Causation

The Second Restatement of Torts continued the use of the test for causation. This article reconsiders that test in a causally problematic context, asbestos litigation. It considers how courts have used and abused the substantial factor test and concludes that its use is unfortunate because of its fuzziness and lack of analytical rigor. There are obvious advantages to returning to the but-for test of causation, as has the Third Restatement of Torts. The ambiguity surrounding the substantial factor test leads to inconsistent results, at least across jurisdictions. More importantly, the test gives no clear guidance to the factfinder about how one should approach the causal problem. It also permits courts to engage in fuzzy-headed thinking about what sort of causal requirement ought to be imposed on plaintiffs, especially in cases that present complications in the availability of evidence of such. The but-for test, on the other hand, offers a roadmap on how to think about causation.But this article can't demonstrate the advantage of but-for causation over the substantial factor approach in a context like asbestos, where proof of causation is not possible. Under the circumstances this article does not take issue with jurisdictions that relax their proof requirements and permit plaintiffs to do something less than show that exposure to a given defendant's asbestos products was a factual cause of the harm. But-for causation simply won't work in these circumstances. Nor does this article criticize the effort on the part of courts to limit the extent of liability for defendants who have made small contributions to the overall dose to which the plaintiff was exposed. But even in this situation, the substantial factor test obfuscates what is really going on and permits courts to proceed without grappling with the real issues presented and resolving them on a transparent and honest basis. Recognition of the very difficult problems of proof in asbestos, a predicate to a coherent response to that problem, can't proceed without a clear grasp on what we mean by causation and the role of but-for in that definition.

Rethinking Patent Damages

Determining the appropriate monetary remedy for patent infringement has always been a complicated and confusing task, for two principal reasons. The first is that the rules courts have developed for estimating patent damages have been, all too often, both complex and contradictory. This observation continues to be true even after the creation of the United States Court of Appeals for the Federal Circuit, which since 1982 has heard all appeals in patent infringement suits. The second reason is that the proper application of even relatively simple rules to real cases can be surprisingly difficult. In recent years, courts have begun to abandon the formalism that once characterized their approach to patent damages in favor of an analysis more solidly grounded in the economics of market structure, but much work remains to be done to set the law of patent damages on a rational footing. Our goal in this article is to provide a comprehensive economic framework for analyzing and estimating patent damages in the form of either lost profits or reasonable royalties. We begin with an overview of the law of patent damages, paying particular attention to the development of legal standards for estimating lost profits and reasonable royalties over the past thirty years. As we show, the courts have been moving by fits and starts toward adopting a general tort-law framework involving the application of cause-in-fact and proximate cause doctrine, though without completely giving up the idea that the law of patent damages should remain materially different from the law of damages as applied to other torts. We then provide a rationale for a general but-for causation standard and demonstrate how this standard might apply to a variety of market arrangements. Finally, we discuss the concept of proximate cause and what it might mean in the context of patent infringement. Although our results are largely supportive of some of the legal standards the Federal Circuit has adopted over the past ten years, we argue that the court has ignored some potent counterarguments, and that these counterarguments must be resolved before one can have any confidence in the standards chosen. In reaching our results, we therefore address, though ultimately reject, arguments that patent owners should systematically recover less than the amount of their but-for loss, in order to encourage efficient infringement or to avoid anticompetitive schemes of preemptive patenting or tying.