- Relative Proximity and Proximate Causation (Job-Talk Paper) (Draft)
The theory and doctrine of proximate cause has been too easily dismissed. Two primary intellectual errors underly this dismissal: one is a misunderstanding of causal proximity, the other is a mistaken inference from the otherwise correct observation that there are multiple causes of an effect, to the claim that there is no hierarchy between proximate and more remote causes.
This article defends the classic conception of proximate causation as a causally grounded notion. It does so by reconstructing the doctrine, articulating an underlying concept of proximate causation, in which proximity is relative (but still objective).
Proximate causation is a relation between two causes and an effect; it occurs when one cause mediates the effects of another. To say that D is a proximate cause of E relative to C, means that C’s influence on E runs through (is mediated by) D. When this happens, D is causally closer to E, than is C. Just as New York City is closer to Boston than is Philadelphia. This relation is only definable along a path of causation.
Understanding this idea informs the doctrines of proximate cause, which proceed following Bacon’s Maxim: trace back from the injury to its causes, in sequence. along the paths of causation, until responsibility is absorbed. Once responsibility is absorbed, the process terminates. For this reason, causal chains “break”: not because the cause and effect are too remote or attenuated, but because a set of causes that are proximate, relative to these remote causes, are sufficient to absorb responsibility. With responsibility absorbed, there is nothing further to trace back. This is missed if the tracing is conducted from cause to injury, rather than, in reverse, from injury to cause.
With a better understanding of these doctrines, the article shows how proximate causation, properly understood, underlies and explains much of the law of proximate cause. Proximate cause is essentially a defense that asserts that the defendant is not the most proximate cause to the harm, and that someone (or something) else is. The implications for both liability and contribution are discussed.
- Why Corrective Justice Theorists Should Like Market Share Liability (with Cosim Sayid). (In Progress. Draft Available Upon Request)
We argue that the controversial doctrine of Market Share Liability (MSL) can be justified on corrective justice grounds. While MSL doesn’t follow directly from an application of standard corrective justice principles, we offer a novel argument in its favor that preserves the substantive corrective justice rights of both parties. This renders MSL pareto-superior, and thus rationally ratifiable to each of the parties and preserves the standard requirements of corrective justice (bilaterality, wrongdoing, injury, causation) without reversing the burden of proof, relaxing the causation requirement in favor of culpability or risk, and, crucially, without resort to distributive justice principles.
We develop a framework introduced by Epstein (1979) in the context of nuisance law, for when “utilitarian constraints” justify departures from a baseline of corrective justice. This framework emphasizes the importance of administrative costs (establishing who caused which injury), transaction costs (governing potential contractual reallocation of rights between the parties) and in-kind compensation from all to all (determining when win-win reallocations improve each party’s standing relative to the corrective justice baseline). This framework can be used to either restrict or broaden the scope of standard common law rights.
Our argument is straightforward: In a perfect world with perfect information, or in a world in which the administrative costs (of determining whose pill Plaintiff took) were zero, each plaintiff would sue only the manufacturer whose drugs she ingested, and would recover. In the absence of such information, lacking a mechanism that solves for causal uncertainty, each manufacturer would be liable for nothing. MSL creates a mechanism that is not only pareto-superior to the standard tort alternative (creating in kind compensation), but does so by placing each party exactly where they would be in a world with no evidential uncertainty, i.e. in exactly the position they have a right to be in, according to the principles of corrective justice.
Corrective justice is attained via a technique of causal grouping, in which the entire group of manufacturers is grouped as one. The group as a whole caused the injury to the plaintiff. The market share mechanism concerns contribution by each defendant. The justification for both the grouping and the apportionment is a corrective justice one, employing the ex ante pareto argument, and the ex post perfect knowledge argument, which converge on market share lability.
- Omissive Overdetermination: Why the Act-Omission Distinction Makes a Difference for Causal Analysis , 49 University of Western Australia Law Review 57, Special Issue on Causation, Feb 2022 (Pre-print draft)
Analyses of factual causation face perennial problems, including preemption, overdetermination, and omissions. Arguably, the thorniest, are cases of omissive overdetermination, involving two independent omissions, each sufficient for the harm, and neither, independently, making a difference. A famous example is Saunders, where pedestrian was hit by a driver of a rental car who never pressed on the (unbeknownst to the driver) defective (and, negligently, never inspected) brakes. Causal intuitions in such cases are messy, reflected in disagreement about which omission mattered. What these analyses mistakenly take for granted, is that at issue is the ‘efficacy’ of each omission. I argue, on the contrary, the puzzle of omissive overdetermination favors taking the act/omission distinction seriously. Factual causation, properly understood precludes omissions (i.e. omissions are not causal). Of course, the law also attaches liability to omissions, but this works differently from liability for real causes (e.g. omissions have a duty requirement, they also respond differentially to difference-making considerations). The manner in which liability attaches for omissions differs from that of straightforward causal liability, and is entirely dependent on the underlying causal structure. Attention to that structure (e.g. that the driver’s hitting the pedestrian with his car is what actually caused the injury) sheds light on which omissions matter (e.g. driver’s failure to press on the brakes) and why (because that failure removes a defense the driver would have to liability for the accident he caused). Other cases, where the parties’ connection is entirely omissive (e.g. two physicians fail to detect independently lethal conditions), come out differently (tracking moralized elements). The analysis offered makes better sense of both why omissive determination cases are puzzling and how to resolve them.
- Paper on reasonable doubt and Bayesianism (under review) (name changed for peer review anonymity)
I propose an account of “Beyond a Reasonable Doubt” compatible with Subjective Bayesianism that rejects the view that identifies it with a threshold probability. Rather, guilt beyond a reasonable doubt is a judgment, not merely about the credal state the factfinder endorses as her own (i.e. not merely as one’s own credence in guilt), but as about alternative possible credences, specifically those the fact finder does not endorse, but finds reasonable.
- “Omissions, Causation, and Responsibility” (Manuscript available upon request)
Omissions are not causes, but they can, under certain special circumstances, be cited in causal explanations and in attributions of responsibility. We can explain events by appeal to omissions, and we can be responsible for outcomes dependent on our omissions. Explaining how this is so, and when, removes an important general objection to theories that rule out causation by omission. Omissive attributions appeal to normative features, but causes do not. This is because omissions are not causes at all. I suggest a general template for the attribution of responsibility for omissions and similar quasi-causal cases. Outcome responsibility for omissions is for circumstances not being where they ought to be. The grounds for such responsibility is a duty or norm that I failed to perform and which would have made a difference to those circumstances. This responsibility is not for causing these circumstances, rather, it is a matter of contrasting what the wrongdoer had an obligation to produce or prevent with what in fact did happen, because of the wrongdoing. This template sheds light on omission’s puzzling features, including the Queen of England Problem and the law’s duty requirement.
- “Productive Causation: Against Causal Pluralism” (Manuscript available upon request) (draft for PSA Baltimore 2021)
I argue for a unified monistic notion of causation as production. This sets my position in opposition to many of the predominant views on causation in the current literature: against the view that causation is a matter of dependence (counterfactual, probabilistic, or otherwise) of the effect on the cause; against the related view that causation encompasses several distinct notions (causal pluralism); and against views that run causation and causal explanation too closely together. These three errors are related. My diagnosis of the tendency to analyze causation in terms of dependence is that it conflates the desiderata of explanation and causation.
- “Touchdowns, Safeties, and the Jurisprudence of Fouls” Balkinization symposium on Berman & Friedman Jurisprudence of Sport