Monday, October 24, 2022
Richard Wright has posted to SSRN Dialogues on Causation with Puppe. The abstract provides:
This paper describes the contemporaneous development of the thoughts and writings of me and Ingeborg Puppe, the leading German scholar on causation in the law, beginning independently in the 1980s and subsequently, after learning of each other's work, through numerous communications and recent joint publications. We agree on the most important things: e.g., the failure of the strong necessity (but-for/sine qua non) analysis of causation in (duplicative and preemptive) overdetermined causation cases and of the various attempts to save it, the failure of 'singularist' ('I know it when I see it') theories, the proper NESS analysis of causation based on instantiaton of natural laws and related causal generalizations, the rejection of counterfactual reasoning, the acceptance of omissions as causes. the proper analysis of causation by omissions and overdetermined negative causation ('double prevention') cases, the recognition of properties of events and states of affairs (rather than events or states of affairs as whole) as the proper causal relata, and the proper framing of the causation analysis in the law (focusing on the causal connection between the wrongful aspects of the defendant's conduct and the legally relevant injury). But there are some actual or possible areas of disagreement. Puppe treats mental processes and some complex physical processes (e.g., the development of cancer) as indeterministic and thus not subject to the NESS analysis, while I believe they are, at least at a practical level, deterministic. She deems it necessary to treat humanly created rules in addition to causal laws and generalizations based on natural law as causal, while I believe that, as with mathematical principles, causation occurs through humans' undestanding, acceptance and application of those rules and principles rather than through their actual satisfaction. She refuses, at least for legal responsibility purposes, to fully apply the NESS analysis to recognize as causes conditions which are not independently strongly sufficient when there is a simutaneously operative independently strongly sufficient condition. Conversely, she attempts to treat almost all limitations on legal responsibility, including the risk-based limitations, as causally based, while I have always insisted on a strict separation of causal analysis from the distinct analyses of legal responsibility and ultimate liability based on, e.g., the realization of the wrongfully created risks, the existence of a superseding cause, or the the fact that the injury would have occurred anyway in the absence of any legally wrongful conduct (the 'no worse off' limitation).