Legal Cause: Cause-in-Fact and the Scope of Liability for Consequences

The project to restate the law of torts offers a number of opportunities.\u27 One is law reform, as the last two Restatements concerning products liability illustrate. Another is to reflect on doctrinal history, both in the case law and in the academy. Yet an- other, and the one I focus on, is the opportunity to clarify legal concepts, if necessary by reformulation and restructuring, in order to assist courts to manage new challenges that have emerged since the last Restatement. Few areas in the law of tort are in more need of this re-evaluation than the area covered by the term legal cause as described in the earlier Restatements, where its treatment is opaque, confused, and contradictory. Perhaps even more importantly, legal cause is especially ripe for reconsideration in light of its complementary relationship with concepts that define the incidence of the relevant tort obligation, such as the duty concept in the tort of negligence. As the reach of such incidence-defining concepts shifts, so too will the reach of the concept of legal cause. This Article has three main themes. First, earlier Restatements took as their paradigm of a negligence claim one where the careless (positive) act of a private defendant results in physical injury to the plaintiff, such as when I carelessly run over a stranger with my car breaking her leg. But such claims, which I call traditional cases or simple running down cases, are not the most important in the challenges they present to modern tort doctrine. Of much greater significance are non-traditional claims, such as those alleging a negligent failure to control a third party, which test the limits of the contours of the map of torts. The Restatement (Third) of Torts ( Restatement (Third) ) should squarely address the challenge non-traditional claims pose to earlier dogmas such as the general duty owed to the whole world and the implicit assumption that a defendant will be liable for a consequence of tortious conduct unless, exceptionally, a rule restricting liability operates. Secondly, earlier Restatements are coy about the institutional competition between judge and jury that underlies doctrinal arrangements. Yet often the relationship of duty and legal cause is something akin to a seesaw. Often there is a choice to package a particular issue as one of duty, and therefore one for the court, or as one of legal cause, and therefore one for the jury, with a resultant empowering of one of these institutions at the expense of the other. Even where there is, as I suggest there should be, a move towards spelling out the detailed legal concerns that arise out of the particular facts of the case and bear on jury determinations, such a move might be characterized as empowering courts relative to the status quo. The Restatement (Third) should admit frankly the political dimension to possible doctrinal arrangements

Choosing What We Mean by Causation in the Law

In a radical new account of causation in the Law, I argue that causation is a term we use to express diverse information about the world. Clarity is promoted if we use the term causation to refer to the information yielded by only one type of inquiry. Lawyers have used the term to refer to more than one type of enquiry, and philosophers often do not specify an inquiry. The most useful inquiry for legal purposes is one that compares the actual world of a particular phenomenon with a hypothetical world and thereby determines, in the context of that comparison, the role that a specified factor played, if any, in the existence of the actual phenomenon. It is convenient to separate three forms of such a role of involvement : necessity, duplicate necessity and contribution, though contribution subsumes the others. We use our knowledge of the physical laws of nature, evidence of behaviour and so on to distinguish involved factors from factors that are merely associated with that phenomenon by a relation of constant conjunction: a determination that can be done objectively. I argue that Law should unequivocally choose involvement as the interrogation underlying causal terminology because (a) it promotes clarity and avoids ambiguity; (b) it promotes the clear identification of normative issues and provides a more transparent distribution of issues between causation and other analytical elements within legal analysis; and (c) it best serves the Law\u27s very wide range of purposes. Part I of this article sets out the above argument. Part II sketches the approach of others to the issue of causation in the Law

Half of Women in New Hampshire Have Experienced Sexual Harassment at Work

In this brief, authors Kristin Smith, Sharyn Potter, and Jane Stapleton discuss the results of a 2018 Granite State Poll survey conducted by the University of New Hampshire on workplace sexual harassment in New Hampshire. They report that over half of women and nearly one-quarter of men in New Hampshire have been victims of sexual harassment at their workplaces during their lifetimes. Women are more likely to state they suffered work-related consequences (for example, financial loss, being fired or demoted) than men, but similar shares reported quitting their jobs as a result of the harassment. Sexual harassment is problematic for the workplace, as it reduces worker morale and job satisfaction, diminishes productivity, and increases absenteeism and worker withdrawal. The authors suggest that employers would do well to invest in prevention, such as bystander intervention training, and encourage victims’ use of supports to mitigate the negative effects of workplace sexual harassment

Choosing Prevention Products: Questions to Ask When Considering Sexual and Relationship Violence and Stalking Prevention Products

The purpose of this white paper is to provide guidance to university and college leaders on how to choose products that address concerns of sexual and relationship violence and stalking from the perspective of prevention

Institutions in/cognito: the political constitution of agency

Operating at the boundaries of philosophy of mind, cognitive science, politics and social theory, this thesis aims to develop an interdisciplinary model of the relationship between agency and structure. This thesis explores the question of why the agency/structure argument in the social sciences has not yet been resolved and argues for an interdisciplinary model of agency to be utilised by social theory. In the wake of poststructuralism there has been a gravitation back towards characterising the terms of this debate in more strongly dichotomous terms, arguing for the autonomy of agency in particular as a natural kind. This trend can be seen most clearly in Archer’s analytical dualism within the morphogenetic theory of social elaboration, where the desire for the clarity of dualist terms has become tangled with claims to ontology. I suggest that this tendency is not limited to social theory, but is characteristic of the neoliberal political environment from which such theory is being produced, understood and utilised. Understanding the way in which our political and social context influences the ways in which we may understand or conceptualise a problem such as this, establishing the logical intuition and methods which we use to do this kind of deductive reasoning, is key for both performing the philosophical task of engaging in the agency-structure debate, but is thoroughly interrelated with how we need to conceptualise that relationship itself. It is both the method and the content, the ‘how’ and the ‘what’, of investigating the relationship between external social structures and the feeling of autonomous authorship and choice. I argue that the political value system inherent to neoliberal and economic logics, which prioritise and naturalise individuality and autonomous, internal agentic capacity, works to make the experience of agency appear inevitable and universal. This thesis engages with the assumptions that underpin this illusion, looking to philosophy of mind in order to etch out a framework for understanding agency. This framework has two necessary components. Firstly, that it acknowledges the experience of agency as real, and that as a way-of-being-in-the- world it is necessary to continue to explore how individuals experience agency in their environments. Secondly, and most importantly, that this ‘realism’ about agency, does not inevitably indicate that agency has an ontological and epistemological reality that transcends the particular social and political contexts in which it makes sense. The thesis explores how the fundamental components of agency, intelligence and cognition are produced in the interrelationships between a subject and their physical, social and political environment. The argument presented is that deliberative consciousness and self-awareness emerge as a response to, and as an effect of, complex social interaction. In contrast to Archer’s conception of the sui generis, causal efficacy of reflexive agency, this thesis argues that smooth, embodied, coping with the environment is the preferred mode of interacting with the world. By critically engaging with the idea that those studying social dynamics should conceptualize agency as internal and inherent the thesis explores and critiques the prevalent use of the term ‘agency’ within social theory, arguing that an explicit engagement with what agency is is an understudied but fundamental and necessary philosophical task within sociology. A strong position is proposed that social institutions not only precede the self-aware, experience of choice and autonomy, but actively produce it. This proposition stands in opposition to dualistic notions of agency and structure as they are conceived by critical realism. This has widespread political implications in a field that often assumes agency to be an intrinsic part of human nature that stands outside of socialisation. This goal of this thesis is to demonstrate that in order to understand the experience of agency within our particular contexts and how it manifests as a force for social change, social theory must engage critically with philosophy of consciousness