Once More into the Bramble Bush: Duty, Causal Contribution, and the Extent of Legal Responsibility

Few issues in tort law are more in need of clarification than those encompassed by the concepts of legal cause and duty, which are not only the subject of opaque, confused and contradictory treatments in the American Law Institute\u27s Restatement of the Law of Torts,\u27 relied upon by many American courts, but also the subject of even more opaque and confused treatment in many foreign jurisdictions. The focus of this conference is on tort law in the United States, and my assigned task is to comment on the issues encompassed by the concept of legal cause, especially as they are or should be treated in the Restatement. As anyone who is familiar with the concept of legal cause will be aware, and as Jane Staple- ton\u27s article makes clear, an adequate discussion of the concept must encompass not only the empirical issue of causal contribution and the normative issue of the extent of legal responsibility for tortiously caused consequences, but also the related concept of duty. Thus, the assigned task covers an area that is broad and complex, and it is made more difficult by the general failure, in the Restatement and elsewhere, to properly distinguish and clarify the various analytical, empirical, and normative issues that are confusingly and even contradictorily lumped together in one or the other or all of these legal concepts. In her article, Stapleton comments on some of my prior articles, in which I undertook a detailed analysis of the empirical issue of causal contribution and emphasized the importance of (1) distinguishing that issue from the prior issue of identifying tortious conduct and the subsequent issue of the extent of legal responsibility for tortiously caused consequences; and (2) focusing the causal- contribution inquiry on the tortious aspect of the defendant\u27s con- duct.3 While Stapleton and I agree on many basic points, we also disagree on some significant ones, as Stapleton herself notes. In the following parts of this Article, I will quickly note the points of agreement and spend more time on the points of disagreement, in the hope of further narrowing our disagreements or at least clarifying the underlying issues. I will concentrate, once again, primarily on the empirical issue of causal contribution and the importance of distinguishing it from the normative issues of tortious conduct, legal injury, and the extent of legal responsibility for tortiously caused injuries. However, I will focus more than I have in the past on the (mis)handling of these issues in the Restatement, while also making a few comments about the Restatement\u27s (mis)handling of the issues of duty and the extent of legal responsibility for tortiously caused consequences

Negligence in the Courts: Introduction and Commentary, in Symposium, Negligence in the Courts: The Actual Practice

This article is an introduction to and commentary on the contributions to a Symposium on Negligence in the Courts: the Actual Practice. The contributors all conclude that the tests of negligence that are actually employed by the courts differ from the aggregate-risk-utility test that is generally assumed in the academic literature, including the Restatement of Torts. Patrick Kelley and Laurel Wendt\u27s survey of all the standard jury instructions on negligence in the United States finds only one instruction, in Louisiana, that mentions a risk-utility or cost-benefit test of negligence, and that instruction merely suggests, as a discretionary option, the weighing of important societal (not purely private) benefits against the risk when applying the usual ordinary prudence standard. Stephen Gilles\u27s investigation of British negligence cases demonstrates that British courts do not employ a literal cost-benefit balancing test, but rather typically employ a disproportionate cost test. I believe this test is better described as a prohibitive cost test, according to which the defendant\u27s creation of a significant risk to others generally is reasonable only if the risk is significantly outweighed by the expected benefits to those being put at risk (either direct benefits to them as participants in the risky activity or indirect benefits that accrue to everyone in society) and has been reduced to the maximum extent possible without significantly impairing those expected benefits. Gilles also agrees that British courts apply different tests depending on the rights and relationships among the parties, and in particular depending on who is putting whom at risk for whose benefit - for example, depending on whether a person is putting herself at risk in order to benefit another, rather than vice versa, or whether the plaintiff is a trespasser on the defendant\u27s land. Ron Allen and Ross Rosenberg\u27s investigation of American negligence cases, which I supplement in my commentary with a discussion of some of my own previously unreported studies, discloses that American courts also rarely refer to the aggregate-risk-utility test and that, even in the two states (Louisiana and Illinois) in which the test is most often referenced, it is not actually applied by the courts. Indeed, Louisiana courts explicitly note that questions of reasonableness ultimately turn on considerations of justice and the rights and relationships among the parties. Anita Bernstein\u27s contribution focuses on the perspective - objective or subjective - that is employed when analyzing persons\u27 alleged negligence. She notes that, contrary to the position taken in the draft Restatement Third, a distinction is often made between plaintiffs and defendants, with a more subjective perspective being applied to the former, especially when the person has a significant mental disability. In an extended commentary, I discuss the different perspectives applied to both defendants and plaintiffs in various types of situations, and I demonstrate that these differences cannot be explained by the usual administrative-convenience rationale, but rather are based, as with the substantive criteria of reasonableness, on the rights and relationships among the parties

Once More Into the Bramble Bush: Duty, Causal Contribution, and the Extent of Legal Responsibility, in Symposium, The John W. Wade Conference on the Third Restatement of Torts

Courts, lawyers, law students, and academics continue to confuse the empirical issue of causal contribution with the distinct normative issues of tortious conduct and legal injury, which precede and frame the causal-contribution inquiry, and the normative issue of the extent of legal responsibility for tortiously caused consequences, which follows the causal-contribution inquiry. In a number of prior articles, I have tried to distinguish and clarify these various issues, which arise not only in tort law, but also in much the same form in criminal law and many other areas of the law. I have focused primarily on distinguishing and clarifying the empirical issue of causal contribution and elaborating a comprehensive test, the NESS test, for resolving this issue. In this paper, which was prepared for the recent Wade Conference on the Third Restatement of Torts: General Principles, I revisit these issues. I focus more than I previously have on the Restatement\u27s unhelpful, opaque, confused, and contradictory treatments of these issues, while also commenting on recent scholarship which fails to properly distinguish these issues. I defend the NESS test of causal contribution against some recent criticisms, propose a practical way of properly presenting the causal-contribution issue to students and jurors, criticize alternative proposed tests (including Jane Stapleton\u27s targeted but-for test), further elaborate the notion of causal sufficiency (rather than mere analytical or empirical sufficiency) that underlies the NESS test, and provide a more detailed explanation of the NESS test\u27s application to the conceptually most difficult types of causation cases, the overdetermined multiple-omission cases

Principled Adjudication: Tort Law and Beyond

The article briefly discusses the impossibility of a strict formalist or positivist approach to legal adjudication and the necessity and plausibility of a principled approach, according to which it is necessary to resort, explicitly or implicitly, to the principles underlying the positive expressions or sources of law to identify, interpret and apply the law, in easy as well as hard cases. The legitimacy of the principled approach crucially depends on resort to the community\u27s moral principles as embedded in the existing law -- those moral principles which best explain as much as possible of the existing law -- rather than allowing, as Ronald Dworkin has argued, judges to adopt whichever moral principles they subjectively deem best that satisfy some minimum threshhold of descriptive fit. Do such moral principles exist, embedded in the law? Many legal skeptics argue that they do not. The two principal competing moral theories of law are the justice theory, based on the foundational norm of maximizing everyone\u27s equal individual freedom, and the utilitarian efficiency theory, based on the foundational norm of maximizing the total aggregate pleasure, happiness or wealth of the society as a whole. After briefly describing each theory and its implications for legal obligation, a brief survey is undertaken of several major tort doctrines or issues: plaintiff\u27s consent as a complete defense, plaintiff\u27s contributory negligence as a complete or partial defense, the distinction between intentional torts and the tort of negligence, the distinction between tort law and criminal law, and the availability of punitive damages in tort law. The justice theory explains and justifies each of these doctrines and distinctions, while the utilitarian efficiency theory is not able to explain or justify any of them. Similar findings were made for the major elements of negligence law in a prior essay, The Standards of Care in Negligence Law , which was published in Philosophical Foundations of Tort Law, OUP 1995)