Chancy Causation in Tort Law

Abstract

Abstract Chancy causation is where the cause of an event can only be attributed probabilistically. Contrary to the understanding popular in legal theory, scientific fact plays only a minimal role in chancy causation cases. As a matter of metaphysics, factual inquiry can only determine whether an event has a tendency to cause an outcome. Yet tort doctrine requires that the plaintiff prove a counterfactual: that but for the event, the outcome would not have occurred. Understanding that in chancy causation cases proving the counterfactual is impossible is the first step towards a discussion of what really ought to matter in chancy causation cases: whether imposing liability is normatively desirable. Methodologically, the Essay builds on scholarship about the metaphysics of causation as a first step to understanding this legal concept. If it is true that causation cannot be pinned down deterministically, as chancy causation cannot, then what determines factual causation? The answer is policy. I call this approach “pragmatic” because it evaluates the use of an idea rather than claims regarding its metaphysical truth. But there is a metaphysical piece here as well. We only get to the point of applying a pragmatic analysis by understanding something about the metaphysics of causation.