Causation In Law Research Articles

Of Climate Change, Quantum Physics and Causation: Is it Time for a Probabilistic Approach to Causation in Tort Law?

To date, the requirement that a plaintiff prove causation has hampered the success of tort-based claims against corporate greenhouse gas emitters. The need for an alternative approach to causation is clear. In recent years, courts and academics have engaged with the task of finding viable alternatives to the dominant "but for" test for causation. This article adds to that endeavour by proposing a new line of inquiry, grounded in approaches to causation that have emerged in scientific disciplines. It argues that the demise of deterministic theories of causation in science, and the rise of indeterministic and probabilistic alternatives, could be of interest to lawyers seeking a new approach to causation in law that is better tailored to the challenges of climate change. The article contends that courts' rigid application of the "but for" test is rooted in a Newtonian assumption that all things have a determinate cause. It advocates instead for a probabilistic approach, drawing on Fairchild v Glenhaven Funeral Services Ltd as evidence of its feasibility. Such an approach, it is argued, creates a real prospect of success for climate change litigants.

Climate Change and Causation. Joining Law and Climate Science on the basis of Formal Logic

A strict application of legal tests to find the cause of an event has always been a challenge for a coherent causal analysis. This is again the case for making causal statements in the climate change context, although we are witnessing unprecedented impacts of a changing climate at a global scale. While probabilistic event attribution provides information linking greenhouse gas emission levels to observable characteristics of extreme weather and climate related events, the conventional understanding of causation in law provides a very limited response to this scientific knowledge. We offer a new matrix for developing causal explanations based on formal logic, for a coherent analysis that is compatible with climate science and law. This matrix causally explains the relation between emissions, the increase in global mean surface temperature, the general increase in frequency and severity of climate related events and, most significantly, between emissions and individual climate related events.

Probabilistic Causation in Law

Probabilistic Causation in Law

Causation in the Law of State Responsibility and the Problem of Overdetermination: In Search of Clarity

This article addresses the preliminary steps that must be taken in order to study the problems stemming from overdetermination in the law of state responsibility. Overdetermination, broadly defined, is the existence of multiple causes (multiple wrongdoers, external natural causes, contribution to the injury by the victim and so on) contributing towards a harmful outcome. As relationships among states become more and more complex, there is a corresponding increase in the complexity of the potentially harmful outcomes of these relationships. The fact that the harm caused may originate in diverse sources (overdetermination) poses challenges to the law of state responsibility. These challenges pertain to most aspects of state responsibility, yet their dimension regarding causality has not been studied in depth. The confusion surrounding causal analysis conducted by international adjudicatory bodies leads to decisions that are not convincing in their determination of responsibility in causal terms. The argument of the article is twofold. First, it holds that the concept of causation in international law is unclear, especially in relation to overdetermination, and it must be clarified. Second, it holds that a clearer concept of causation can provide useful guidance to the decision-making process of international courts and tribunals: the clear and principled application of causal tests will, in turn, lead to clearer reasoning. A clearer judicial reasoning will improve the foreseeability of the judicial outcome, will provide better guidance for the parties before a court and will lead to a fairer judicial process.

Causal Responsibility in International Criminal Law

This article clarifies the factual basis for attributing causal responsibility in interpersonal causation scenarios in international criminal law. Such content is obliterated when explaining causal contributions in overdetermined and indeterministic harm scenarios. The resulting gap between individual agency and causal attribution is explained away by reference to values underlying legal liability (‘causal minimalism’). Probabilistic causal models can express causal influences in interpersonal causation scenarios, and explicate the objective basis of causal attribution. International Criminal Courts’ approaches to indirect and joint perpetration, as well as the notion of causal contribution in joint criminal enterprise are discussed in light of the existing approaches to testing causation in law, as well as with regard to Judea Pearl’s notion of causal sustenance. The article concludes that expressing causal contributions in language of probabilities can explain causal intuitions underlying legal liability better than supplanting factual basis of attributing responsibility with normative and policy justifications.

Econometric Evidence in EU Competition Law: An Empirical and Theoretical Analysis

Competition authorities and litigants worldwide have increased the use of economic quantitative methods and economic expert witnesses as a means to produce and support evidence in merger and antitrust cases. The application of quantitative techniques to antitrust has arisen naturally from the need to answer the central questions of antitrust analysis, such as, market definition and market structure issues, analysis of pricing and non-pricing behaviour by firms, quantification of damages and efficiencies and dynamic issues of entry and product reallocation. The paper aims, on the one hand, to briefly describe the main aspects of the most commonly used quantitative techniques in antitrust analysis, and on the other hand, to quantify their use in EU merger and antitrust decisions from 2004 until 2011. Moreover, we also codify the Commission‘s opinion on the techniques utilized. The paper then explores the substantive law framework for the assessment and evaluation of this quantitative evidence in EU competition law by the European Commission and the Courts, in particular topics relating to the standard of proof and evidential cogency and the interaction between the different concepts of causation in law and econometrics, whereas Section 5 provides a unique empirical analysis of the probative value of different kinds of econometric evidence, by performing for the first time a quantitative analysis of the opinion of the European Commission for the particular techniques used and their average evidential weight.

Vaccin contre l’hépatite B et sclérose en plaques : retour sur la causalité

On July 2009, the Highest court of appeal admitted link between multiple sclerosis and hepatitis B vaccination though scientific studies does not indicate such an association. This decision shows autonomy of causation in law and causality. Causation does not reflect scientific knowledge but results from a juridical rule determining the conditions under which pharmaceutical firm has to pay damages for multiple sclerosis developing after hepatitis vaccination. Causation in law is a fiction.

Causality and Causation in Law, Medicine, Psychiatry, and Psychology: Progression or Regression?

In this article, I review recent developments in the areas of law, medicine, psychiatry, and psychology concerning causality and causation. I analyze the validity of the 2008 edition of the American Medical Association (AMA)’s guides to the evaluation of permanent impairment and its accompanying volume on causation. I conclude with recommendations for a synthetic approach to causality in the legal field and a more consistent model of impairment in the mental health one. The AMA’s book on medical causation needs careful revision.

Causation in Torts, Crimes, and Moral Philosophy: A Reply to Professor Thomson

Professor Judith Jarvis Thomson's provocative article, 'The Decline of Cause,' focuses on the diminishing importance of causation in law and moral philosophy. In this reply, I suggest answers to some of the questions Professor Thomson raises. Professor Thomson's article revolves around various forms of a classic dilemma: two persons take equal care but, through chance, their actions produce different results. Does the outcome of their actions matter in a moral assessment of those actions? Professor Thomson first sets out what the styles as the Kantian and 'moral sophisticates position that the outcome of an act does not and should not effect our assessment of the moral quality of the act. Subsequently, however, Thomson rejects the absolute nature of this position. She concludes that, in cases of acts blameworthy in the first instance - i.e., blameworthy on some ground independent of the actual outcome - resulting harm or near harm does and should render our moral assessment more negative than it would be absent such result. Professor Thomson confesses herself to be largely at a loss to explain why we hold these moral intuitions, and thus she does little more than posit - rather than explain - them. In the first part of my reply to Professor Thomson, I explain why the reasoning that leads her to reject the Kantian position is flawed - why, in fact, her own arguments lead to the conclusion that the Kantian position is correct and that outcome does not matter in our moral assessment of a person's acts. In the second part of my reply, I accept for the sake of argument Professor Thomson's position on Kant and the 'moral sophisticates,' and I address her ultimate intuitive conclusion that outcome does matter, but only in cases of fault in the first instance. I submit that I can offer Professor Thomson reasons for her intuited conclusion, reasons which explain not only why outcome matters in cases of fault in the first instance, but why it matters in all cases - including cases of no fault in the first instance.

Causation in Law and Medicine

Causation in Law and Medicine

Causation in Law and Medicine

Causation in Law and Medicine

Causation in the Law

Hart and Honoré's book is a thorough and scholarly study of the concept of causation in Anglo-American law. Closely reasoned, with full reference to the literature and a considerable treatment of Continental theories, it represents a serious attempt to restate the law in tort, contract and crime in an intelligible way. In future, any serious student of the subject will have to take note of it. Unfortunately for the authors they have backed a loser in supporting Re Polemis and criticising the foreseeability test; and since much of their argument depends upon their opinion on this question, their book must now be accounted largely out of date, if the decision of the Judicial Committee in The Wagon Mound receives the acceptance that seems probable. In respect of the general theory of causation, however, the discussion retains its intellectual interest; and the chapters on contract and crime, though relatively short, are largely unaffected by The Wagon Mound.