Class 19

            Thus far, we have assumed that liability applies only to defendants who can be said in some way to have caused the injury. But the causation requirement is famously puzzling.  Why do we even have a causation requirement?  If our exclusive goal were compensation, for example, a causation requirement might be perverse.  Some defendants may be judgment proof and unable to pay much of anything. Moreover, causal reasoning is notoriously complicated.  When we label something a cause of something else, when we reason in terms of cause and effect, we are often making normative judgments about how a case should turn out.

               Consider, for example, Ronald Coase’s take on causation:

[Take, for example,] the case of a confectioner the noise and vibrations from whose machinery disturbed a doctor in his work. To avoid harming the doctor would inflict harm on the confectioner. The problem posed by this case was essentially whether it was worthwhile, as a result of restricting the methods of production which could be used by the confectioner, to secure more doctoring at the cost of a reduced supply of confectionery products. [….] If we are to discuss the problem in terms of causation, both parties cause the damage.

R. H. Coase, The Problem of Social Cost, 3 J. L. & Econ 1 (1960). As Coase sees it, it makes no sense to speak in the abstract about who causes what. Instead, causation gets at the fundamental policy goals underlying a problem and allocates responsibility accordingly.

            Other scholars push back against the idea that causation has no real meaning. H.L.A. Hart and Anthony Honoré, for example, urge that common sense and cultural conventions can make sense of the doctrine. H.L.A. Hart & Anthony Honoré, Causation in the Law 3 (1959).

            This debate aside, how do plaintiffs establish causation? What if causation in fact can be expressed only in terms of probabilities? Or if there are multiple possible causes or culprits?