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Causation and Responsibility*

  • Michael S. Moore (a1)


In various areas of Anglo-American law, legal liability turns on causation. In torts and contracts, we are each liable only for those harms we have caused by the actions that breach our legal duties. Such doctrines explicitly make causation an element of liability. In criminal law, sometimes the causal element for liability is equally explicit, as when a statute makes punishable any act that has “caused … abuse to the child….” More often, the causal element in criminal liability is more implicit, as when criminal statutes prohibit killings, maimings, rapings, burnings, etc. Such causally complex action verbs are correctly applied only to defendants who have caused death, caused disfigurement, caused penetration, caused fire damage, etc.

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1 Annotated Code of Maryland, Art. 27, Section 35A(2).

2 Argued for in Moore, Michael S., Act and Crime: The Implications of the Philosophy of Action for the Criminal Law (Oxford: Clarendon Press, 1993), ch. 8.

3 SirPollock, Frederick, Torts, 6th ed. (New York: Banks Law Publishing Co., 1901), 36.

4 Such politics-based skepticism about metaphysics surfaced recently with regard to my use of the metaphysics of events to answer certain questions of criminal law. Compare Freeman, Samuel, “Criminal Liability and the Duty to Aid the Distressed,” University of Pennsylvania Law Review 142 (1994): 1455–56, with Moore, Michael S., “More on Act and Crime,” University of Pennsylvania Law Review 142 (1994): 1750–59.

5 On purposive interpretation of legal texts, see Moore, Michael S., “The Semantics of Judging,” Southern California Law Review 54 (1981): 279–81; and Moore, , “A Natural Law Theory of Interpretation,” Southern California Law Review 58 (1985): 383–88.

6 On the criminal-law meaning of “malice” in the law of homicide, see Moore, , “Natural Law Theory,” 332–36.

7 A late expression of this view of tort law is to be found in Calabresi, Guido, “Some Thoughts on Risk Distribution and the Law of Torts,” Yale Law Journal 70 (1961): 499553.

8 Coase, Ronald, “The Problem of Social Cost,” Journal of Law and Economics 3 (1960): 144.

9 I thus put aside those who interpret Coase to be a causal skeptic. (See, e.g., Epstein, Richard, “A Theory of Strict Liability,” Journal of Legal Studies 2 [1973]: 164–65, for an interpretation of Coase according to which the Coasean insight was that we cannot say what is the cause of what.) Coase made a much better point than this “interactive effects” interpretation gives him credit for: it is that causation does not matter for the efficient allocation of resources.

10 See, e.g., Calabresi, Guido, “Concerning Cause and the Law of Torts: An Essay for Harry Katven, Jr.,” University of Chicago Law Review 43 (1975): 69108; Shavell, Steven, “An Analysis of Causation and the Scope of Liability in the Law of Torts,” Journal of Legal Studies 9 (1980): 463503; and Landes, William and Posner, Richard, “Causation in Tort Law: An Economic Approach,” Journal of Legal Studies 12 (1983): 109–34.

11 For a good discussion of the economists' misuse of “cause” to name an increase in conditional probability, see Wright, Richard, “Actual Causation versus Probabilistic Linkage: The Bane of Economic Analysis,” Journal of Legal Studies 14 (1985): 435–56; and Wright, , “The Efficiency Theory of Causation and Responsibility: Unscientific Formalism and False Semantics,” Chicago-Kent Law Review 63 (1987): 553–78.

12 Or so I argue in Moore, Michael S., Placing Blame: A General Theory of the Criminal Law (Oxford: Clarendon Press, 1997), chs. 2–4.

13 See ibid., ch. 5, where I take issue with the Kantian view that our deserts are determined by our culpability (“inner wickedness”) and not by the effects of our actions in the real world.

14 Calabresi, , “Concerning Cause” (supra note 10).

15 Shavell, , “Analysis of Causation” (supra note 10).

16 Landes, and Posner, , “Causation in Tort Law” (supra note 10).

17 Contrast the simple, conditional probability analysis used by economists (supra note 10) with the more complicated probability analysis of causation by philosophers. See, e.g., Salmon, Wesley, “Probabilistic Causality,” Pacific Philosophical Quarterly 61 (1980): 5074. No philosopher would propose a simple increase in the conditional probability of an event E by the existence of an event C as an analysis of causation, for that completely fails to distinguish epiphenomena, accidental correlations, and preempted conditions, on the one hand, from true causal relations, on the other. Yet from the point of view of an incentive-based system that eschews any attempt to analyze a pre-legal notion of causation, such an increase in conditional probability may be an appropriate trigger for legal liability.

18 Kelman, Mark, “The Necessary Myth of Objective Causation Judgments in Liberal Political Theory,” Chicago-Kent Law Review 63 (1987): 579637.

19 Malone, Wex, “Ruminations on Cause-in-Fact,” Stanford Law Review 9 (1956): 6099.

20 Edgarton, Henry, “Legal Cause,” University of Pennsylvania Law Review 72 (1924): 211–44, 343–75.

21 Green, Leon, Rationale of Proximate Cause (Kansas City, MO: Vernon Law Book Co., 1927).

22 Ryan v. New York Central R.R., 35 N.Y. 210, 91 Am. Dec. 49 (1866). (Railroad liable only for the first house that its negligently emitted sparks ignite, not for each subsequent house that first house, in turn, ignites.)

23 See Dressier, Joshua, Understanding Criminal Law, 2d ed. (New York: Matthew-Bender, 1995): 466–67. (A death occurring more than a year and a day from the act of a defendant conclusively presumed not to be the effect of that act.)

24 See Green, , Rationale (supra note 21). On this test, one asks whether the harm that happened was an instance of the type of harm whose risk made the defendant's action negligent to perform; this is not a causal inquiry, but rather a culpability inquiry.

25 American Law Institute, Model Penal Code, section 2.03.

26 On foreseeability, see Moore, , Placing Blame (supra note 12), ch. 8. The test purports to ask a single question: Was the harm that happened foreseeable to the defendant as he acted?

27 Edgarton, , “Legal Cause” (supra note 20). (“Proximate cause” is the label put on the conclusion of balancing social and individual interests on a case-by-case basis.)

28 Strawson, P. F., Individuals (London: Methuen, 1959). Ordinary-language philosophy (e.g., at Oxford University from 1945 to 1965) went further than I go in the text. Such ordinary-language philosophers as Gilbert Ryle, Ludwig Wittgenstein, and J. L. Austin thought that the only metaphysics one can do is the descriptive metaphysics described in the text. For a critique, see Moore, Michael, “The Interpretive Turn: A Turn for the Worse?Stanford Law Review 41 (1989): 927–34.

29 See, e.g., Kramer Service, Inc. v. Wilkins, 184 Miss. 483, 186 So. 625 (1939).

30 Although invariant succession is admissable as good evidence of causation.

31 The example is David Armstrong's in his argument that accidentally true generalizations must be distinguished from true causal laws. See Armstrong, , What Is a Law of Nature? (Cambridge: Cambridge University Press, 1983).

32 For discussions of the epiphenomena problem, see Salmon, , “Probabilistic Causality” (supra note 17); Lewis, David, “Causation,” Journal of Philosophy 70 (1973): 556–67; and Kim, Jaegwon, “Epiphenomenal and Supervenient Causation,” in Midwest Studies in Philosophy IX: Causation and Causal Theories, ed. French, Peter, Vehling, Theodore, and Wettstein, Howard (Minneapolis: University of Minnesota Press, 1984).

33 For a discussion of how law, morals, common sense, and science all converge to distinguish correlation from causation, see Schlick, Moritz, “Causality in Everyday Life and in Recent Science,” University of California Publications in Philosophy 15 (1932): 99125.

34 This is the dominant test for cause-in-fact in both torts and criminal law in America. See, e.g., New York Central R.R. v. Grimstad, 264 F.2d 334 (2d Cir. 1920); and American Law Institute, Model Penal Code, section 2.03(1).

35 See Moore, , Act and Crime (supra note 2), 267–76.

36 Mill, John Stuart, A System of Logic, Book III, ch. V, section 3.

37 For a discussion of these pragmatic features in various contexts, see Feinberg, Joel, Doing and Deserving (Princeton: Princeton University Press, 1970).

38 Smith, Jeremiah, “Legal Cause in Actions of Tort,” Harvard Law Review 25 (19111912): 104.

39 Parsons v. State, 81 Ala. 577, 597, 5 So. 854, 866–67 (1887).

40 The best contemporary legal discussion of these cases is to be found in Wright, Richard, “Causation in Tort Law,” California Law Review 73 (1985): 1775–98. Overdetermination cases are to be distinguished from garden-variety multiple cause cases. In the latter, no one event or state is sufficient to produce the harm, because more than one event is individually necessary to produce the harm. Such sets of individually necessary, only jointly sufficient conditions, are very frequent and may well be the most frequent kind of case. Wright mentions (in ibid., 1793) a kind of case intermediate between regular multiple cause cases and the overdetermination variety. If there are three fires, no one of which is sufficient, but any two of which are sufficient, to burn the plaintiff's structure, then no fire is individually necessary to produce the harm. Although I do not separately treat these, we should consider these too to be overdetermination cases.

41 See ibid.

42 These are the facts of Anderson v. Minneapolis St. Paul & S. St. Marie R.R. Co., 146 Minn. 430, 179 NW 45 (1920); and Kingston v. Chicago and N. W. Ry., 191 Wis. 610, 211 N.W. 913 (1927).

43 Cf. City ofPiqua v. Morris, 98 Ohio St. 42, 120 N.E. 300 (1918) (negligent maintenance of drainage wickets held not a cause of plaintiff's injury from overflowing reservoir, because the flood would have overflowed the reservoir even if the wickets were not clogged).

44 Wright, , “Causation in Tort Law” (supra note 40), 1794, 1800.

45 Cook v. Minneapolis, St. Paul and S. St. Marie Ry., 98 Wis. 624, 74 N.W. 561 (1898).

46 Christie, Agatha, Murder on the Orient Express (New York: Pocket Books, 1960). See also People v. Lewis, 124 Cal. 551, 57 P. 470 (1899) (initial gunshot and later knife wound both caused victim's death, because “drop by drop his life current welled out from both wounds and at the very instant of death the gunshot wound was contributing to the event”).

47 See generally Hart, H. L. A. and Honoré, Tony, Causation in the Law, 2d ed. (Oxford: Clarendon Press, 1985), 124, 239.

48 People v. Dlugash, 41 N.Y. 2d 725, 363 N.E.2d 1155, 395 N.Y.S.2d 419 (1977).

49 Corey v. Havener, 182 Mass. 250, 65 N. E. 69 (1902).

50 Wright, , “Causation in Tort Law” (supra note 40), 1787.

51 The less seriously punished treason statute in force in England during the Second World War. See Rex. v. Stean, [1947] K.B. 997, 32 Crim. App. Rep. 61, 1947–1 All Eng. L. Rep. 813.

52 Rex. v. Stean.

53 McLaughlin, J. A., “Proximate Cause,” Harvard Law Review 39 (1925): 155 n. 25.

54 This is Richard Wright's conclusion. See Wright, , “Causation in Tort Law” (supra note 40), 1802.

55 This is Wright's conclusion on a slightly varied version of the hypothetical, in ibid. See also Mackie, J. L., The Cement of the Universe (Oxford: Oxford University Press, 1980), 4546.

56 This is Hart a n d Honore's conclusion in Causation in the Law, 239–40.

57 On the idea of causal apportionment, see Rizzo, Mario and Arnold, Frank, “Causal Apportionment in the Law of Torts: An Economic Approach,” Columbia Law Review 80 (1980): 13991429; Kaye, and Aickn, , “A Comment on Causal Apportionment,” Journal of Legal Studies 13 (1984): 191208; and Rizzo, Mario and Arnold, Frank, “Causal Apportionment: Reply to the Critics,” Journal of Legal Studies 20 (1986): 219–26. In his essay in this volume, Alvin Goldman nicely sets out how our obligations to vote — even when our individual vote is not a necessary condition for the election's outcome—can be explained on like grounds (of causal contribution to the outcome for which one's vote was not a necessary condition). See Goldman, , “Why Citizens Should Vote: A Causal Responsibility Approach.”

58 In its original opinion creating comparative fault in California (Li v. Yellow Cab Co. of California, 532 P. 2d, 1226 [Cal. Sup. Ct. 1975]), the California Supreme Court held that one should apportion tort liability “in direct proportion to the extent of the parties' causal responsibility” (119 Cal. Rptr. 858 footnote 6a. [1975] [advance sheets only]). Prior to final publication, the court recognized its error, proportioning liability to degrees of fault, not to degrees of causation.

59 See the citations in Rizzo, and Arnold, , “Causal Apportionment” (supra note 57), 1402.

60 See ibid.

61 See Smith, , “Legal Cause” (supra note 38).

62 Restatement of Torts, sections 431–35 (1934); Restatement (Second) of Torts, sections 431–33 (1965).

63 Regina v. Howe, [1987–1] All Eng. L. Rep. 771.

64 Director of Public Prosecutions for Northern Ireland v. Lynch, [1975] A.C. 653.

65 Regina v. Howe.

66 Abbott v. The Queen, [1976–3] All Eng. L. Rep. 140.

67 See Moore, Michael, “Torture and the Balance of Evils,” Israel Law Revieiv 23 (1989): 280344; revised and reprinted as chapter 17 of Moore, , Placing Blame (supra note 12).

68 Moore, , Placing Blame, ch. 17, 680–84.

69 Ibid., 692–94.

70 Ibid., 696–98.

71 Ibid., 694–96.

72 Ibid., 689–90.

73 Ibid., 698–703.

74 These are the facts of Regina v. Faulkner, 13 Cox C.C. 550 (Ireland, Court of Crown Cases Reserved, 1877).

75 See the Restatement (Second) of Torts, section 431, comment a (1965), which proclaims that in law, “cause” is used “in the popular sense, in which there always lurks the idea of responsibility, rather than in the so-called ‘philosophic sense’ which includes every one of the great number of events without which any happening would not have occurred.”

76 See, e.g., Smith, , “Legal Cause” (supra note 38), 109. The sine qua non test, or necessarycondition test, is discussed in the text accompanying note 34 supra.

77 SirBacon, Francis, “Maxims of the Law,” in Bacon, , The Elements of the Common Law of England (London: Assigns of I. Moore, 1630), 1.

78 Berry v. Borough of Sugar Notch, 191 Pa. 345, 43 Atl. 240 (1899). For another coincidence case, see Denny v. N.Y. Central R.R., 13 Gray (Mass.) 481 (1859) (railroad's negligence in delaying at one section of track, and its subsequent arrival at a flood plain just when a flood sweeps down and destroys goods on the train, held not to be a cause of the damage to the goods).

79 Cf. Bird v. St. Paul E and Minneapolis Ins. Co., 224 N.Y. 47, 120 N.E. 86 (1918) (“There is no use in arguing that distance ought not to count, if life and experience tell us that it does”); and Edgarton, , “Legal Cause” (supra note 20), 369–70.

80 People v. Botkin, 132 Cal. 231, 64 Pac. 286 (1901).

81 A refinement may be necessary here. If the causal relation is transmitted over many events that are of the same type, then the diminishment of causation often seems to be less. See, e.g., Scott v. Shepherd, 96 All Eng. L. Rep. 525 (K.B. 1773) (liability for causing injury to plaintiff by explosion of a lighted squib that was thrown into a crowded marketplace by defendant, and then rethrown by each subsequent possessor of it so as to rid himself of the danger). The analogy here is to a long row of dominos; the falling of each is plausibly individuated as one event, but their ability to transmit causal force seems unrelated to the number of such events. A colorful example offered by Alfred Mele is a variation of People v. Botkin (supra note 80): Would it matter if the poisoned candy was sent from California to Delaware by Pony Express (with numerous handoffs) rather than by train?

82 This line is much more difficult to draw than is recognized in any of the legal literature, yet it is a necessary line to draw in that preemption intervening causes do not have to meet the criteria below articulated for an intervening cause.

83 Hart, and Honore, , Causation in the Law (supra note 47). Although the clarity and the nonlegal analogues of the idea of an intervening cause were new with Hart and Honoré, they built on a solid body of case law. This case law is detailed in Carpenter, Charles, “Workable Rules for Determining Proximate Cause,” California Law Review 20 (1932): 229–59, 396419, 471539. Hart and Honoré's detailing of the case law is in Causation in the Law, 133–85, 325–62.

84 Watson v. Kentucky and Indiana Bridge and Ry. Co., 137 Ky. 619, 126 S.W. 146 (1910).

85 Hart, and Honoré, , Causation in the Law, 7477.

86 These are roughly the facts of Kimble v. Mackintosh Hemphill Co., 359 Pa. 461, 59 A.2d 68 (1948).

87 Hart, and Honoré, , Causation in the Law, 7781.

88 See cases cited, and discussion, in ibid., 170–71.

89 This is something which Hart and Honoré suggest in ibid., 136, 182–85.

90 E.g., State v. Scutes, 50 N.C. 409 (1858) (defendant who burned child not liable for the child's death if an intervening blow on the head by a third party killed the dying child).

91 In the original edition of their book, Hart and Honoré simply except such situations from the normal rule about intentional intervening agents. See Hart, H. L. A. and Honoré, A. M., Causation in the Law (Oxford: Clarendon Press, 1959). As Joel Feinberg noted, these were ad hoc, unexplained, and seemingly unlimited as exceptions. See Feinberg, , “Causing Voluntary Actions,” in Feinberg, , Doing and Deserving (supra note 37). In the second edition of Causation in the Law (supra note 47), chapters VII and XIII now deal extensively with the provision of opportunities and the giving of reasons as “non-central” kinds of causings.

92 Richardson v. Ham, 44 Cal.2d 772, 285 P.2d 269 (1955).

93 Particularly clear and systematic about this is Kadish, Sanford, “A Theory of Complicity,” in Gavison, R., ed., Issues in Contemporary Legal Philosophy: The Influence of H. L. A. Hart (Oxford: Oxford University Press, 1987); and Kadish, , “Causation and Complicity: A Study in the Interpretation of Doctrine,” California Law Review 73 (1985): 323410; reprinted in Kadish, , Blame and Punishment (New York: MacMillan, 1987).

94 See the two essays by Kadish cited in note 93 supra.

95 See Williams, Glanville, Criminal Law — The General Part, 2d ed. (London: B. Henworths, 1961), 391.

96 State ex. rel. Att'y Gen'l v. Tally, 102 Ala. 25, 15 So. 722 (1894).

97 Hines v. Garrett, 131 Va. 125, 108 S.E. 690 (1921).

98 Richardson v. Ham (supra note 92).

99 See the two essays by Kadish cited in note 93 supra.

100 Moore, Michael, Act and Crime (supra note 2), 2829; Moore, , “More on Act and Crime,” University of Pennsylvania Law Review 142 (1994): 1788.

101 Dressler, Joshua, Understanding Criminal Law (New York: Mathew Bender, 1987), 83.

102 See, e.g., Fletcher, George, “On the Moral Irrelevance of Bodily Movements,” University of Pennsylvania Law Review 142 (1994): 1443–53.

103 This is Joseph Beale's apparent view, in Beale, , “The Proximate Consequences of an Act,” Harvard Law Review 33 (1920): 637.

104 See Epstein, , “A Theory of Strict Liability” (supra note 9), 192; and Mack, Eric, “Bad Samaritanism and the Causation of Harm,” Philosophy and Public Affairs 9 (1980): 240–41, 242–43.

105 This is the famous hypothetical used by Keeton, Robert, Legal Cause in the Law of Torts (Columbus, OH: Ohio State University Press, 1963), 3. The hypothetical is based on the facts of Larrimore v. American National Insurance Co., 184 Okla. 614, 89 P.2d 340 (1939).

106 For a defense of the view that there is only one act here, although there are many different descriptions of it, see Moore, , Act and Crime (supra note 2), ch. 11.

107 For a discussion of Leibniz's principle in a legal context, see Moore, Michael, “Foreseeing Harm Opaquely,” in Gardner, John, Horder, Jeremy, and Shute, Stephen, eds., Action and Value in Criminal Law (Oxford: Oxford University Press, 1993).

108 This is what Mark Kelman does, albeit with an imperfect grasp of just what extensionality is. See Kelman, , “Necessary Myth” (supra note 18), 604–6.

109 For a discussion of this reference-shifting strategy, see Moore, , “Foreseeing Harm” (supra note 107).

110 For an excellent discussion of the difference between facts and events, see Bennett, Jonathan, Events and Their Names (Indianapolis: Bobbs-Merrill, 1988).

111 See Campbell, Keith, Abstract Particulars (Cambridge, MA: Blackwell, 1990). It is not uncontroversial whether facts are tropes, or whether they consist instead of a complex of substance-particulars and universals. See “Introduction,” in Mellor, P. H. and Oliver, Alex, eds., Properties (Oxford: Oxford University Press, 1997), 1820.

112 These two kinds of commitments to tropes are distinguished in Daly, Chris, “Tropes,” Proceedings of the Aristotelian Society 94 (1994): 253–61; rewritten and reprinted in Mellor, and Oliver, , eds., Properties (supra note 111).

113 See J. L. Mackie's position on facts versus events as causal relata, in The Cement of the Universe (supra note 55).

114 Hornsby, Jennifer, Actions (London: Routledge, 1980), 76 n. 1.

115 These are the facts of Foster v. Preston Mill Co., 44 Wash.2d 440, 268 P.2d 645 (1954).

116 See, e.g., Smith, , “Legal Cause in Actions of Tort” (supra note 38), 230–32.

117 All of these cases are detailed in Edgarton, , “Legal Cause” (supra note 20), 356–60.

118 Ibid.

119 Moore, Michael, “Moral Reality,” Wisconsin Law Review 1982, 10611156; Moore, , “Moral Reality Revisited,” Michigan Law Review 90 (1992): 24242533.

120 See the text accompanying note 117 supra.

121 Skeptics about causation have perceived this, leading them to invoke these cases regularly. See Edgarton, , “Legal Cause” (supra note 20), 346–47 (“D's act stands in the same logical relation to the result, whether the other actor is a wrongdoer, an innocent person, or a thunderstorm”); Shavell, , “An Analysis of Causation and the Scope of Liability in the Law of Torts” (supra note 10), 495; and Landes, and Posner, , “Causation in Tort Law: An Economic Approach” (supra note 10), 110.

122 I explore the lesser (but not nonexistent) causal requirement for attempt liability in Moore, , Act and Crime (supra note 2), ch. 8.

123 Beale, , “Proximate Consequences” (supra note 103), 637.

124 Mack, , “Bad Samaritanism” (supra note 104).

125 Epstein, , “A Theory of Strict Liability” (supra note 9).

126 This latter point is argued more extensively in Moore, , Act and Crime (supra note 2), 3134.

127 See note 91 and the accompanying text.

128 Hart, and Honoré, , Causation in the Law (supra note 47), 186:

The main feature that unifies “inducing wrongful acts” and “occasioning harm” is that these two types of “causal connection” (to use the expression in the wide sense commonly found in legal writings) are not negatived by the factors that negative the simpler type of causal connection … for both … may be traced through an intervening voluntary action and the second form may also be traced through an intervening coincidence.

129 Ibid., lxii–lxv, 286–90.

130 Watson (supra note 84).

131 This is a variation of the facts in Central of Georgia Ry. Co. v. Price, 106 Ga. 176, 32 S.E. 77 (1898).

132 The argument is pressed by Kadish in the essays cited in note 93 supra; Bennett, , Events and Their Names (supra note 110); Davidson, Donald, Actions and Events (Oxford: Oxford University Press, 1980); and Thomson, Judith Jarvis, Acts and Other Events (Ithaca, NY: Cornell University Press, 1977). Such a view is adopted in Dusenbeny v. Commonwealth, 220 Va. 770, 263 S.E.2d 392 (1980) (no rape by a defendant who inserted the penis of another into the victim).

133 I have argued this at some length in Moore, , Act and Crime (supra note 2), ch. 8.

134 See Moore, , Placing Blame (supra note 12), ch. 13.

135 See the essays by Kadish cited in note 93 supra. Kadish persuasively argues that the accomplice who does not cause the legally prohibited state of affairs (because the acts of the principal constitute intervening causes) is like the lucky attemptor who does not cause the harm he attempts; both are quite culpable, yet neither can be held responsible for a harm he did not cause.

136 Dillon v. Twin State Gas and Electric Co., 85 N.H. 449, 163 A. 111 (1932).

137 See McLaughlin, , “Proximate Cause” (supra note 53).

138 Hart, and Honoré, , Causation in the Law (supra note 47), 239–40.

139 Mackie, , Cement of the Universe (supra note 55), 4546.

140 Wright, , “Causation in Tort Law” (supra note 40), 1802.

141 Beale, Notably, “Proximate Consequences” (supra note 103); and Epstein, , “A Theory of Strict Liability” (supra note 9).

142 See the discussion in Salmon, , “Probabilistic Causality” (supra note 17).

143 I am unconcerned with whether the regularity theory sketched below was really believed by Hume. On this, see, e.g., Stroud, Barry, Hume (London: Routledge and Kegan Paul, 1977), chs. 3 and 4; and Strawson, Galen, The Secret Connexion (Oxford: Clarendon Press, 1989). The Humean theory is an interesting and an influential one even if it turns out that Hume never held it.

144 See Armstrong, , What Is a Law of Nature? (supra note 31).

145 Ibid.

146 Mackie, , Cement of the Universe (supra note 55); Wright, , “Causation in Tort Law” (supra note 40), 1795.

147 This is Wright's example; see Wright, “Causation in Tort Law,” 1795.

148 Hart, and Honoré, , Causation in the Law (supra note 47), 2832, lxxvii–lxxxi.

149 I discuss the paradigm-case argument in Moore, , “The Semantics of Judging” (supra note 5), 281–92.

150 This is an interpretation of Hart and Honoré offered in the essays by Kadish cited in note 93 supra. Hart himself questioned this libertarian interpretation of intervening causation when one of Kadish's papers was initially presented in Jerusalem in 1984.

151 This is a rendering of Davidson, Donald's “anomalous monism.” See Davidson, , Actions and Events (supra note 132).

152 Mill, , A System of Logic (supra note 36).

153 See generally Suppes, Patrick, A Probabilistic Theory of Causality (Oxford: Oxford University Press, 1970).

154 The defining article on this theory is Lewis, David's “Causation” (supra note 32).

155 As Lewis makes clear in ibid.

156 See the discussion in Wright, , “Causation in Tort Law” (supra note 40), 1777–80.

157 Lewis, , “Causation” (supra note 32), 204.

158 Ibid.

159 See Moore, , Placing Blame (supra note 12), 351.

160 See Moore, , Act and Crime (supra note 2), 268–69.

161 Thus, it is standard to use the overdetermination cases, the asymmetry of the causal relation, the problems of epiphenomena and other mere correlations, and the selectivity of “the cause,” as arguments testing the truth of various theories of causation, and not just the legal adequacy of such theories. See, e.g., Ehring, Douglas, Causation and Persistence: A Theory of Causation (Oxford: Oxford University Press, 1997).

162 This is Michael Tooley's suggestion, in his “Causation: Reductionism versus Realism,” Philosophy and Phenomenological Research 50 (Supp. 1990): 215–36; and in Tooley, , Causation: A Realist Approach (Oxford: Oxford University Press, 1987).

163 As it is in Anscombe, Elizabeth, Causality and Determination (Cambridge: Cambridge University Press, 1971); and Ducasse, C. J., “On the Nature and the Observability of the Causal Relation,” Journal of Philosophy 23 (1926): 5768.

164 See, for example, Fair, David, “Causation and the Flow of Energy,” Erkenntnis 14 (1979): 219–50.

165 These are the metaphors employed by the cause-as-force theorists in law, Joseph Beale (supra note 103), and Richard Epstein (supra note 9).

* I wish to thank Ken Abraham, Richard Epstein, Ellen Frankel Paul, Alvin Goldman, Sandy Kadish, Leo Katz, Alfred Mele, and Stephen Perry for their comments on an earlier draft of this essay. On the theory of causation developed in this essay, they did not cause the essay to be better, nor did they cause any mistaken statements that there might be (given my own free, informed, deliberate, intervening choices). Still, they aided my making the essay better, and they might have prevented such mistakes as there may be in the essay, and I cheerfully hold them responsible on those noncausal bases. These nice distinctions do not apply to my lifetime collaborator on this project, Heidi Hurd. She and I have discussed these issues so many times that I am unsure which thoughts are mine and which are hers. Hers is thus a causal responsibility, for good or for ill.


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