Search Results

The law has developed a notion of ‘proximate causation’ to limit the reach of acts that would otherwise be the ‘cause-in-fact’ of some remote harm. A leading legal test of proximate causation is the foreseeability test, according to which a harm is ‘proximate’ (and thus the basis of liability) only if that harm was foreseeable to the defendant at the time that he acted. An old conundrum is raised about this test, in terms of its indeterminacy in the face of different descriptions of what must be foreseeable. The tools of modern philosophy – dealing with referential opacity, referential transparency, failures of substitutivity, failures of existential generalization, types versus tokens, etc. – to make the problem more precise and show it to be intractable for legal theorists.

Voluntariness is fundamental to responsibility. Where it is lacking, a person is not treated as the agent of his own bodily movements. There are several problems with looking back to a prior voluntary act to establish an agent's blameworthiness for his later involuntary conduct. The most significant is the fact that the earlier act and the later act are different acts. The strictness of the act requirement in the criminal law helps to underscore the difficulty with trying to base responsibility on an earlier voluntary act. This chapter explores the typical form in which the voluntary act problem arises in the law: cases in which the defendant anticipated, rather than contrived, his involuntary condition. It considers how what is sometimes called the ‘orthodox approach’ to the criminal law's act requirement handles such cases. A preliminary difficulty that poses special problems for the orthodox approach concerns the role of proximate cause. It proposes the ‘redescriptive test’ as a solution to the causation problem.

This chapter argues that AIDS in Africa, like illness in religious societies in general, is interpreted both religiously and biomedically. The chapter identifies five core characteristics of AIDS that shape its interpretation in SSA. It then describes scholarly and African perceptions of the risk environment, local understanding of divine judgment, and differences between proximate and ultimate causes of infection. Outside western biomedical discourses, proximate causes tell us how someone became infected, and ultimate causes provide explanations of why. The chapter ends by reviewing two general issues that also shape how AIDS is understood. The first is local views about the origins of HIV—there are a range of narratives. The second deals with the relationship between attitudes to AIDS and attitudes to fertility.

This chapter elucidates the immanence of corrective justice in negligence liability. It examines each of the negligence concepts (reasonable care, the duty of care, proximate cause, factual cause, and the contrast of misfeasance and nonfeasance) and shows how these constitute a unified ensemble that treats the progression from the defendant's action to the plaintiff's injury as a single normative sequence. Central to this linkage of plaintiff and defendant is the idea of risk, because (as the Palsgraf case stated) ‘risk imports relation’. Each of the concepts traces an actual or potential connection between doing and suffering, and together they translate into juridical terms the movement of effects from doer to sufferer.

Sometimes labelled ‘proximate cause’ or ‘legal cause’, remoteness concerns the scope of responsibility for wrongdoing. The dominant approach is to apply a test of reasonable foreseeability to determine whether a loss is too remote. This chapter examines the inadequacies of this test both as an inclusionary and exclusionary rule, and the failure of the logic of the Wagon Mound (No 1) from which it is derived. When loss is coincidental to a wrong, and when it is outside of the scope of the purpose of the right relied upon, are also illustrated. When the chain of causation is broken by intervening conduct of third parties and the claimant himself is shown.

Classical legal theory viewed the common law as a corrective for harms occurring in the past. But in the early twentieth century the common law shifted its focus from reparation to management of ongoing relationship and risk, a forward-looking concept. These developments occurred in contract law through the gradual accommodation of modern distribution systems, including greater toleration of long-term “relational” agreements in which neither price nor quantity were specified. Filling in such “gaps” required objective doctrines about business behavior, however, leading to notable differences in the treatment of commercial and noncommercial contracts. Property law became more “regulatory” of ongoing relationships, particularly in landlord-tenant law and land use. Tort law became recast as a problem in risk management, reflected in Holmes’s external standard and rational expectations negligence theories; development of statistical and actuarial methods for assessing causation and proximate cause; and debate over negligence versus strict liability as tort standards.

This chapter discusses a new brand of moral philosophy called behavioral morality, particularly as it relates to the criminal law. Behavioral morality is a form of moral reasoning that focuses on the internal proximate causes of deviant behavior to determine whether the actor is morally blameworthy for that conduct. It concludes that as science progresses to reveal the causes of human behavior, a criminal justice system based on retributivism will no longer align with moral intuitions about responsibility. The chapter then suggests that behavioral moralism may gain more traction by embracing the fundamental underpinnings of the criminal justice system, while still working to integrate scientific evidence. Finally, it opens the debate on the question of stigmatization of individuals who have scientific accounts of their behavior.

Georgia Power, through lobbying, was able to convince the members of the Georgia legislature to allow customers to fund the construction of a nuclear reactor. During the 2008 government bailout, the government chose to allocate the rescue funds to the country's leading corporations instead of to individuals. This chapter demonstrates how corporations implement their view of morality. It provides examples of circumstances where regulations fail to comply with what the public needs because of power issues, and also introduces the concept of proximate cause as a means of tort “reform” to remove liability in negligence cases.

To deal with issues of factual/natural causation and of legal/proximate causation, every system has drawn up a large number of formulas and notions aiming to help courts determine whether the defendant caused the plaintiff’s loss, and to what extent she should be liable for them. Rather than looking at the myriad of causal problems that might arise in tort law cases, this chapter focuses on certain fundamental features of every tort system’s concept of causation. It makes clear that, while all the jurisdictions under review face similar challenges and deal with them through roughly similar devices, they differ not only in the formulas and notions they rely upon, but also in the role assigned to causation vis-à-vis other elements of the cause of action, and in the openness with which policy factors are taken into account when assessing causation in tort law.

Michael Moore powerfully argues that the doctrine of proximate cause is neither conceptually coherent nor morally desirable. This chapter defends the “risk rule” (also known as the “harm-within-the-risk”) conception of proximate cause against Moore’s criticisms. It begins by questioning his understanding of the risk rule as it figures in tort law, and goes on to argue that neither his conceptual nor his moral criticism of the risk rule is decisive. In the course of rebutting Moore’s criticisms, this chapter outlines a more compelling account of the risk rule in the law of torts. What emerges is a conception of proximate cause that is thoroughly moralized. Of course moral premises must be invoked to defend the risk rule’s moral merit, but they must also be invoked to defend its conceptual coherence. This chapter concludes that the risk rule is both morally and conceptually sound.

This chapter describes how tort law deploys the concepts of duty and scope of liability (proximate cause) to limit civil liability. Some of these limits overlap with psychological principles; others are at odds with them. The lack of a general duty to rescue others from harm converges with omission bias, the psychological tendency to see acts as more blameworthy than failures to act. The foreseeability of specific types of harms that could result from an action is a key element in assessing the scope of liability, also in line with psychology. In contrast, people highly value emotional tranquility and close personal relationships, yet tort law places strict constraints on recovery for emotional harm.

This chapter examines the costs and contributions of the current legal framework for seeking justice to remedy medical malpractice. Patients injured by medical treatment or misdiagnosis can sue for malpractice. To recover damages, plaintiffs must prove “negligence”—that is, that their providers failed to exercise due care. The plaintiff must establish four elements of a tort lawsuit: duty, breach, proximate cause, and damages. The chapter first considers problems with the current malpractice system, including injustices to individuals who are unable to mount effective litigation when they are victims of malpractice. It then discusses what justice requires for handling cases of negligent injury and evaluates the performance of the legal system against that standard, and whether popular tort reforms are moving the legal system closer to or further from the standard.

The authors examine in detail the “direct loss” requirement of Security Council resolution 687, noting that in declaring that Iraq would be responsible for all direct losses resulting from its invasion of Kuwait, the Security Council could not have foreseen all the kinds of claims that would be submitted to the United Nations Compensation Commission (UNCC) as a consequence of its potentially expansive jurisdictional delineation. The chapter highlights the main causation issues asserted before and resolved by the E2 Commissioner panels of the UNCC, which were charged with the most geographically- and subject-matter-diverse group of corporate claims submitted to the UNCC.