Harper Liability without Foult and Proximate Causation (original) (raw)
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George Mason Law Review, 2014
When legal theorists reflect on the law they often do so at one of two levels of abstraction. On one hand, there are discussions devoted to the question, “What is law?” They seek to provide an account that makes sense of law in the broadest sense as a social phenomenon. This is the terrain of H.L.A. Hart’s The Concept of Law and the debates among natural lawyers, interpretivists, and the multiplying sects of legal positivists that Hart has spawned. On the other hand, there is of late a growing body of theoretical literature devoted to particular substantive areas of law. Hence, for example, we have debates over the normative foundations of contract law or the analytic coherence of tort law. This Article asks a question pitched at an intermediate concept: what is civil liability? Civil liability is not the same thing as the concept of law writ large. Nor can it be reduced to a particular substantive body of law such as torts, contracts, or restitution. As this Article demonstrates, i...
Responsibility Regardless of Causation
This paper deals with the relationship between legal responsibility and causation. I argue that legal responsibility is not necessarily rooted in causation. First, I show (in §1) that there are significant and independent non-causal form of responsibility that cannot be reduced to causal responsibility; second, in §2, I show that the very notion of causality is—lato sensu—not plainly descriptive. I will suggest that even causation is tied to evaluative elements.
Causation in tort law: A decade in the Supreme Court of Canada
2000
Ontario. This paper is based on a presentation delivered on 12 June 1998 as part of the Law Society of Upper Canada's Special Lecture series Personal Injury Law: Current Practices and Emerging Directions. I would like to thank Ms. Alison Hughes and Professor Ian Kerr for their comments on an earlier draft. Mr. Brian Smith and Ms. Mysty Clapton provided valuable research assistance, funded by the Law Foundation of Ontario and the University of Western Ontario, Faculty of Law.
Routledge Encyclopedia of Philosophy Online, 2001
Causal language is pervasive in the law, especially in those areas, such as contract law, tort law and criminal law, that deal with legal responsibility for the adverse consequences of voluntary and involuntary human interactions. Yet there are widely varying theories on the nature and role of causation in the law. At one extreme, the causal minimalists claim that causation plays little or no role in attributions of legal responsibility. At the opposite extreme, the causal maximalists claim that causation is the primary or sole determinant of legal responsibility. These divergent views are rooted in different conceptions of: (1) the nature or meaning of causation, (2) the relationship between causation and attributions of legal responsibility, and (3) the basic purposes of the relevant areas of law. Much of the disagreement and confusion stems from the ambiguous usages of causal language in the law, which follow the ambiguous usages of causal language in ordinary, non-legal discourse. In both areas, causal language is sometimes used in its primary sense to refer to the content and operation of the empirical laws of nature, but at other times it is used in a more restricted normative sense to signify that one of the contributing conditions has been identified as being more important than the other conditions, in relation to some particular purpose. The relevant purpose in the law is the attribution of legal responsibility for some consequence. Thus, in legal discourse, causal language is ambiguously employed to grapple not only with the empirical issue of causal contribution but also with the normative issue of legal responsibility. The failure to use language that clearly identifies and distinguishes these two issues has generated considerable disagreement and confusion over each issue and the nature of the relationship between them. Further disagreement and confusion have been generated by the difficulty of providing useful, comprehensive criteria for the resolution of each of these issues. The most widely used criterion for the empirical issue of causal contribution is the necessary-condition (conditio sine qua non) test. This test has been subjected to considerable criticism as being over-inclusive or under-inclusive or both, and as inviting or even requiring resort to normative policy issues to resolve what supposedly is a purely empirical issue. The deficiencies of the necessary-condition test, coupled with the difficulties encountered in trying to devise a useful alternative test that does not beg the question, have led many to conclude that there is no purely empirical concept of causation, and that there is thus no more than a minimal role for causation in the attribution of legal responsibility. This causal-minimalist position has been especially attractive to the legal economists and the critical legal scholars, since it undermines the traditional conception of the law as an instrument of interactive justice, whereby everyone is required to avoid causing injury to the persons and property of others through interactions that fail to respect properly those others’ equal dignity and autonomy. The traditional conception, with its focus on individual autonomy, rights and causation, is inconsistent with the social-welfare maximizing theories of the legal economists and the anti-liberal, deconstructionist programme of the critical legal scholars. The members of each causal-minimalist group therefore argue that the concept of causation should be: (a) jettisoned entirely and replaced by direct resort to the social policy goals which they believe do or should determine the ultimate incidence and extent of legal responsibility; (b) redefined as being reducible to those social policy goals; or (c) retained as useful rhetoric that can be manipulated to achieve or camouflage the pursuit of those social policy goals.
The Basis of Vicarious Liability
The Cambridge Law Journal, 2013
YALE LAW JOURNAL fusion. Nowhere has it been so difficult to win assent to what some have deemed fundamental dogma. 9 Nor is this all. What principles-even if of a conflicting kind-have yet emerged are comparatively new in character. They do not go back to that venerable time when Richard I endowed the Anglo-Saxon race with legal memory. There is no trace of them in Bracton. 10 The Year-Books do not aid us. 11 Coke-it seems marvellous enough-is silent upon them; or, at any rate, it is a different tale he has to tell. Our theories come in with the Revolution of i688, and they bear the impress of a single, vivid personality. So that if they have a history, it is short enough to raise deep questions. And, indeed, it must be admitted that the problems inherent in our principles are very formidable. There is no field of law into which they do not seem to enter. Contract, tort, negilgence-in all of these they have their word to say, and it is a word of growing import for our time. 2 The age has passed when each man might bear untroubled the burden of his own life; today , the complexities of social organization seem, too often, to have cast us, like some Old Man of the Sea, upon the shoulders of our fellows. Where, above all the men of Mediaeval England gloried in their own labor, we, or, at least, many of us, take pleasure in dividends that have been vicariously earned. It is an age of abundant service. Vast numbers are working for other men and obeying their commands. Service implies action. A tells B to perform some work. When B's work entails loss to C, what is the relation of A to the transaction? We have maxims and to spare upon this question. Respondeat superior is an argument which, like David, has slain its tens of thousands. Its seeming simplicity conceals in fact a veritable hornet's nest of stinging difficulties. It is the merest dogma, 9 See Mr. Baty's fierce attack in his brilliant, if perverse, Vicarious Liability (I915). Dean Thayer in the posthumous paper published in 29-ABv. L. REv. Soi has suggested sdme interesting possibilities of future development. 10 Cf. Bracton ff. Iisb, i24b, i58, 7a, i7:2b, 2o4b. 11 Prof. Wigmore in 7 HARv. L. REV. 315 has cited some evidence to the contrary, but it is hardly decisive. The cases which foreshadow the modern doctrine are conceived with special duties. Cf. Cowell, Institutes, p. 207; Southern v. Howe, Cro. Jac. 468; Noy, Maxims, chap. xliv. For the general rule, see Rolle, Abridgment, tit. Action on the Case, pl. 95; Walthain v. Mulgar (16o6) Moore, 776. 12 Cf. Dr. Baty's remark that the modern law is injuring industry, op. cit. p. 154. 16 See Dean Wigmore in 3 Select Essays in Anglo-American Law, 474. '7 Cf. Mr. Baty's remarks, op. cit. 23-4.
Causation in Tort Law: Back to Basics at the Supreme Court of Canada
Alta. L. Rev., 1996
This article analyzes the role of causation in Canadian tort law. The author uses the recent Supreme Court of Canada decision of Athey v. Leonati as a model to show how even complex problems of causation can be solved through the application of fundamental principles of tort law: the "restoration" principle, the "take your victim" principle, and the "vicissitudes" principle. The author also demonstrates the importance of distinguishing types of causes based on the following dichotomies: tortious and non-tortious, sufficient and insufficient, and simultaneous and successive. The author argues that applying these principles, and distinguishing causes in this manner, will greatly simplify the resolution of even seemingly complex problems of causation in tort law.