Research Handbooks in Law and Economics series
Edited by Jennifer H. Arlen
Chapter 4: Causation in tort law: A reconsideration
Causation is a source of confusion in tort theory, as well as a flash point for the debate between consequentialist and deontological legal theorists. Consequentialists argue that causation is generally determined by the policy grounds for negligence, not by a technical analysis of the facts. Conversely, deontologists reject the view that policy motives determine causation findings. Causation has also generated different approaches within the consequentialist school. Some take an essentially forward-looking approach to formalizing causation analysis, finding causation analysis to be subsumed within the Hand Formula. Another approach within the consequentialist school closely examines the incentive effects of causation in the presence of an uncertain application of the negligence test. This approach makes use of the fact that the causation test is applied retrospectively, but it makes no attempt to reconcile itself with the forward-looking approach.
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