TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Wednesday, March 15, 2023

Scordato on Causation

Marin Scordato has posted to SSRN Three Kinds of Fault:  Understanding the Purpose and Function of Causation in Tort Law.  The abstract provides:

Causation is a concept of enormous importance in the law. In just the last two years, the United States Supreme Court has explicitly considered its importance and meaning at least three times, in areas of the law as diverse as specific personal jurisdiction, Title IX, and Section 1981. It has also been the subject of sustained scholarly examination and debate.

In no area of the law is causation as foundational and omnipresent as in tort law, and in no sphere within tort law more than in its dominant cause of action, negligence. Unsurprisingly, then, the causation requirement in tort law, and in negligence, has received a great deal of attention and analysis by both courts and commentators. Nevertheless, there remains a striking lack of consensus regarding the causation requirement, ranging from disagreement about the basic rationale for its existence as a part of the negligence claim to the more specific details of its doctrinal organization and articulation.

This article contributes to this ongoing discussion by offering an account of the causation requirement in negligence that places at its core the role that requiring causation plays in seeking to restrict the formal liability generated by the negligence tort to only those defendants who are deemed to be genuinely socially responsible for the harm suffered by the plaintiff. On this account, causation exists as part of the prima facie case for negligence, and in tort law more generally, as a means of insuring that all liable defendants possess a particular kind of fault with respect to the injury suffered by the plaintiff.

In developing this understanding of causation in negligence, the article identifies three different kinds of fault that a defendant might have regarding a given harm, demonstrates how a workable system of injury compensation could exist that requires only one, and explains how and why the causation requirement operates to insure that negligence liability is conditioned upon the presence of all three. Moreover, the article describes how the long-standing doctrinal features of the causation requirement, including its best-known exceptions, can best be understood as serving this underlying policy purpose. Additionally, suggestions for improving the effectiveness of causation doctrine that follow from this analysis are identified and discussed.

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