Probabilistic Causation in the Law

This paper challenges the widespread view that the legal system’s conception of causation is largely deterministic and token-level, that view stemming from the law’s principal focus on assigning ex post responsibility for past acts. We argue, in opposition to this view, that the probabilistic, ex ante, and type-level conceptions of causation that dominate the social sciences have a larger place in the legal system than is often recognized. Not only does the legal system frequently and appropriately use probabilistic conceptions of causation when engaged in ex ante rule generation (as opposed to rule application), but probabilistic conceptions of causation also play a substantial role even in the ex post application of legal rules.