Friday, September 16, 2016
As I write, first-year torts students across the country are learning that much of the law of negligence isn’t really “law” but is instead an accumulation of judgments about something called “policy” (often based on cost-benefit analysis) by courts about whether liability is appropriate. To think about, for example, whether a duty of care existed between this defendant and this plaintiff in any other way is a hopelessly naïve harkening back to the bad old days of privity and other retrograde concepts in cases like Winterbottom v. Wright (1842).
That all seems to me badly mistaken. It’s a legacy of the moral skepticism of Oliver Wendell Holmes and William Prosser to reject any vestige of formalism and regard torts as basically a utilitarian regulatory body of law. (That’s a rough characterization, but the details are persuasively spelled out by John Goldberg and Ben Zipurksy in The Moral of MacPherson, 146 U. Pa. L. Rev. 1733 (1998)). The great merit, among others, of the civil recourse view of Goldberg and Zipurksy is to rebut that skepticism and bring some legal structure back into the discussion of duties of care.
The same kind of argument can, I think, also be brought to bear on the element of proximate causation, though proximate cause is probably trickier than duty. I started thinking about this when I read a blog post from a while ago by Alexander Pruss on “causation in the right way:"
It's a medieval dictum that causes contain their effects. But that needs qualification. Causes in a sense contain their proper effects. They contain those proper effects as telê, and then some aspect of the effect--perhaps with cooperation or thwarting from other causes--just is an actualization of the cause with that telos. When all goes well, the whole of the teleologically specified effect is an actualization of the cause, but in aberrant cases, very little is....
[W]e could say that when x causes y in the right way, then being-an-actualization-of-x is an intrinsic feature of y, a feature that is causally involved in everything y does, and so when y causes z in the right way, z has the intrinsic feature of being-an-actualization-of-y, and we can go back down the chain to x. Perhaps this is what Aquinas means by per se ordered causal series.
This isn't the place for a complete account of how to map "causation in the right way" onto the element of proximate cause in torts, but I think that account would be a helpful corrective to so much blather in torts casebooks about proximate cause as a free-for-all policy judgment. And most importantly, as Pruss notes, such an account would "require a fairly non-reductive metaphysics of human beings."