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 All the theory that fits! Home This is Lawrence Solum's legal theory weblog. Legal Theory Blog comments and reports on recent scholarship in jurisprudence, law and philosophy, law and economic theory, and theoretical work in substantive areas, such as constitutional law, cyberlaw, procedure, criminal law, intellectual property, torts, contracts, etc. RSS Links for Legal Theory Blog --Lawrence B. 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Journals Specializing in Legal Philosophy --American Journal of Jurisprudence --The Journal of Philosophy, Science, and Law --Law and Philosophy --Law and Social Inquiry --Legal Theory --Oxford Journal of Legal Studies Legal Theory Resources on the Web Entries from the Stanford Encyclopedia of Philosophy +Austin, John +justice, distributive +justice, as a virtue +legal philosophy, economic analysis of law +legal reasoning, interpretation and coherence +legal rights +liberalism +libertarianism +naturalism in legal philosophy +nature of law +nature of law, legal positivism +nature of law, pure theory of law +republicanism From the Oxford Handbook of Jurisprudence +Natural Law Theory: The Modern Tradition From the Oxford Handbook of Legal Studies +Law as an Autonomous Discipline From the Examined Life A Critical Introduction to Liberalism Papers & Articles +Virtue Jurisprudence Organizations +American Political Science Association(APSA) +American Society for Political and Legal Philosophy (ASPLP) +Association of American Law Schools(AALS) +Internationale Vereinigung fur Rechts und Sozialphilosophie(IVR) +Law and Society Association +Midwest Political Science Association (MPSA) My Postal Address Lawrence B. Solum University of Illinois College of Law 504 East Pennsylvania Ave Champaign, IL 61820 USA 
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Saturday, January 31, 2004
Legal Theory Bookworm This week the Legal Theory Bookworm recommends Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review by Keith E. Whittington (Princeton). Whttington's book is one of the very best about originalism in constitutional theory. Here is a blurb:
Download of the Week This week's Download of the Week is Rescuing Justice from Constructivism by G. A. Cohen (Oxford). Here is a taste of this sophisticated paper that poses a fundamental challenge for constructivists like Tim Scanlon & the late Jack Rawls. Here is a taste:
Friday, January 30, 2004
Conference Announcement: Workshop on Vagueness
Call for Papers: Human Rights, Democracy, and Religion
Conference Announcement: Rocky Mountain Virtue Ethics Conference
Complex Egalitarianism Check out Complex Egalitarianism by Erik Olin Wright and Harry Brighouse. Here is a taste:
Ashiagbor on Economic and Social Rights in the EU Charter at Oxford At Oxford's faculty of laws, Diamond Ashiagbor presents Economic and social rights in the EU charter (on human rights, social rights and social policy discourse). Gross on Indian Citizenship & Identity at Texas At the University of Texas, Ariela Gross, USC, presents Administering Citizenship, Identity and Land in Indian Territory, 1865-1907. Saul on Pornography & Speech Acts at Oxford At Oxford's Jowett Society, Jennifer Saul (Sheffield) presents Pornography, Speech Acts, and Context. Start on Contractarian Approaches to Disability at North Carolina At the University of North Carolina's philosophy department, Cynthia Stark (Utah) presents How To Include the Severely Disabled in a Contractarian Theory of Justice. Goodman on Telecosm Spectrum Rights Ellen P. Goodman (Rutgers University - Law School) has posted Spectrum Rights in the Telecosm to Come (San Diego Law Review, Vol. 41, 2004) on SSRN. Here is the abstract:
Anti-Theory in Literature Check out Theory in chaos by David Kirby over at CSMonitor.com:
Reidenberg on States and Internet Enforcement Joel Reidenberg (Fordham University School of Law) has posted States and Internet Enforcement (University of Ottawa Law & Technology Journal, Vol. 1, 2004) on SSRN. Here is the abstract:
Mossoff on Epstein on "Is Copyright Property?" Adam Mossoff (Michigan State University-DCL College of Law) has posted Is Copyright Property? A Comment on Richard Epstein's Liberty vs. Property (from Adam Mossoff, PROMOTING MARKETS IN CREATIVITY: COPYRIGHT IN THE INTERNET AGE, James V. DeLong, ed., 2004) on SSRN. Here is the abstract:
Speta on FCC Authority Over the Internet James B. Speta (Northwestern University - School of Law) has posted FCC Authority to Regulate the Internet: Creating It and Limiting It (Loyola University Chicago Law Journal, Vol. 35, No. 15, 2004) on SSRN. Here is the abstract:
Thursday, January 29, 2004
Fisher on Alterntive Compensation for the Entertainment Industry The Thursday is Workshop Day post below already mentions that Terry Fisher (Harvard Law School) is delivering An Alternative Compensation System for the Entertainment Industry at Stanford's Olin series today. I've now had a chance to look at Fisher's paper on this very timely and important topic. Here is a taste:
Rational Agency Without Noumenal Selves As I posted below, Geoffrey Sayre-McCord (Professor and Chair, Department of Philosophy at University of North Carolina at Chapel Hill) is presenting Rational Agency and Normative Concepts at Penn's law and philosophy series. I've had a chance to look at this marvelous paper. Here is a very brief snippet from the introduction:
Thursday is Workshop Day Here is the roundup of workshops from hither and yon:
Also at Penn, Martha Nussbaum (Ernst Freund Distinguished Service Professor of Law and Economics, University of Chicago) is giving the JUDITH R. BERKOWITZ ENDOWED LECTURESHIP IN WOMEN'S STUDIES. Her title is Gender Justice, Human Rights, and Human Capabilities. At Boston University law, Susan Koniak (BU) presents How Like a Winter? The Plight of Absent Class Members Denied Adequate Representation. At Florida State, Jennifer Mnookin, University of Virginia School of Law, presents Atomism, Holism and the Law of Evidence. At Georgetown's Colloquium on Intellectual Property & Technology Law, Rosemary J. Coombe, York University, presents The Globalization of Intellectual Property: Informational Capital and Its Cultures. At Stanford's Olin series, Terry Fisher (Harvard Law School) presents An Alternative Compensation System for the Entertainment Industry. At the University of Michigan's law and economics series, Omri Ben-Shahar, Michigan, presents "Agreeing to Disagree": Filling Gaps in Deliberately Incomplete. The title on the website is "incomplete," but not deliberately so. At George Mason, Craig Lerner, GMU School of Law, presents “Accomodations” for the Learning Disabled: A Level Playing Field or Affirmative Action for Elites? At Oxford's Public International Law Discussion Group, Robert Volterra presents The Commission on the Limits of the Continental Shelf: Technical Science, Star Chamber, or Quasi-Judicial Tribunal? At the Australian National University's RSSS, Norva Lo (La Trobe University) presents Humpty Dumpty Analysis of 'Valuing', Empty Analysis of 'Valuable'. At UCLA's legal history series, Sally Gordon, University of Pennsylvania, presents Parochial School Funding: Catholics, Protestants, and Legal Activism at Mid-Century. Will the Tenure Devolution Hit the Legal Academy? While the legal academia sleeps, tenure is rapidly disappearing. Consider the following from The Morphing of the American Academic Profession by Martin Finkelstein:
Nelkin on Moral Luck Dana Nelkin (UC San Diego & affiliated with USD's Institute on Law and Philosophy) has the Stanford Encyclopaedia of Philosophy entry on Moral Luck posted. Here is a taste:
Ginsburg & McAdams on International Dispute Resolution Tom Ginsburg and Richard H. McAdams (University of Illinois College of Law and Yale Law School (Visiting)) have posted Adjudicating in Anarchy: An Expressive Theory of International Dispute Resolution (William & Mary Law Review, Fothcoming) on SSRN. Here is the abstract:
Lipton on Information Policy Jacqueline D. Lipton (Case Western Reserve University School of Law) has posted A Framework for Information Law and Policy (Oregon Law Review, Vol. 82, No. 3, 2004) on SSRN. Here is the abstract:
Wednesday, January 28, 2004
KaZaA Strikes Back Check out the CNET story here:
Hasen on Slate Election law superblogger Rick Hasen has a new piece on Slate. Here is a taste:
Confirmations Wars Department: More on the Memos The Hill has a detailed report on the inner workings of the Senate Judiciary Committee in relation to the access by Republican staffers to Democratic memos on judicial selection. The story focuses on a shift in control of the committee from the leadership to Senator Hatch's personal staff. Here is a taste:
Hasen's Guide to Bush v. Gore Rick Hasen of Election Law Blog has posted A Critical Guide to Bush v. Gore Scholarship on SSRN. Here is the abstract:
Kamm on Just War Theory and Terrorism at UCL At University College's Colloquium in Legal and Social Philosophy, Frances Kamm presents Failures of Just War Theory and Terrorism. Here is a bit from the introduction:
Parry on Torture at Villanova At Villanova law today, John Parry (University of Pittsburgh School of Law) presents Chavez v. Martinez and the Jurisprudence of Torture. Levinson on Non-Evidence at Loyola Marymount At Loyola Marymount, Laurie Levenson (LMU) presents Why Looks Matter: The Impact of Non-Evidence on the Courtroom. Sussman on Disgrace at Yale Today at Yale's philosophy series, David Sussman presents Kant and the Politics of Disgrace.. Tehranian on Natural Law and Fair Use John Tehranian (University of Utah) has posted Et Tu, Fair Use? The Triumph of Natural Law Copyright on SSRN. Here is the abstract:
Liebowitz and Margolis on the Economists' Brief in Eldred Stan J. Liebowitz and Stephen E. Margolis (University of Texas at Dallas - School of Management and North Carolina State University) have posted Seventeen Famous Economists Weigh in on Copyright: The Role of Theory, Empirics, and Network Effects on SSRN. Here is the abstract:
Two by Weisbach David A. Weisbach (University of Chicago Law School) has posted two papers on SSRN:
Iontcheva on the International Criminal Court Jenia Iontcheva (University of Chicago - Law School) has posted Nationalizing International Criminal Law: The Internatinoal Criminal Court as a Roving Mixed Court on SSRN. Here is the abstract:
Tuesday, January 27, 2004
Bainbridge on Corporate Responsibility for Past Wrongs Stephen Bainbridge has a provocative & sensible post on this interesting topic. Here's a taste:
Cohen on Justice and Constructivism at Oxford At Oxford's Jurisprudence Discussion Group, G. A. Cohen (Oxford) presents Rescuing Justice from Constructivism. Here is a taste:
(Note that, for all that I am here purporting to show, the original position might be the right procedure for generating principles of regulation. But I do not, in fact, believe that, for uneccentric reasons that have nothing to do with the case being mounted here.) Lichtman on Irreperable Harms and Benefits at Chicago At the University of Chicago, The Coase Lecture is presented by Douglas Lichtman, Professor of Law, University of Chicago Law School, who will deliver Irreparable Harms and Irreparable Benefits. Update: Amanda Butler has a report on the event here. Szigeti on Moral Sentiments & Dilemmas at Oxford Today at Oxford's Ockham Society, Andreas Szigeti presents Moral Sentiments and Moral Dilemmas. Fennell on Contracting Communities I was especially interested in this paper, which approaches its question from a very interesting perspective. Lee Anne Fennell (University of Texas School of Law) has posted Contracting Communities (University of Illinois Law Review, 2004) on SSRN. Here is the abstract:
Two by Goldman Eric Goldman (Marquette University - Law School) has posted two papers on SSRN:
Conference Announcement: Religiously Affiliated Law Schools
Friday, March 25, 2004 9:00?10:15 a.m. Session 1
Guzman on the Design of International Agreements Andrew T. Guzman (University of California, Berkeley - School of Law (Boalt Hall)) has posted The Design of International Agreements on SSRN. Here is the abstract:
Monday, January 26, 2004
Weekend Wrap Up On Saturday, the Download of the Week was Inheriting Responsibilties by David Miller. Also on Saturday, The Legal Theory Bookworm recommended Michael Moore's Placing Blame, a General Theory of the Criminal Law. Sunday's regular features were delayed, but you can now find the Legal Theory Lexicon entry on Causation and the Legal Theory Calendar. Mirowski on the Philosophical Hammer at George Mason At George Mason's Philosophy, Politics and Economics series, Phil Mirowski (Department of Economics, University of Notre Dame) presents Philosophizing with a Hammer. Silberman on International Jurisdiction and Judgments at NYU At NYU's law series, Linda Silberman discusses the ALI Project on International Jurisdiction and Judgments. Holthoefer on International Law and Order at Chicago Today at the University of Chicago's political theory workshop series, Anne Holthoefer, University of Chicago, presents A Procrustean Bed? International Law and the Shaping of International Order. Crisp on Hedonism at Oxford Today at Oxford's Moral Philosophy Seminar, Roger Crisp (Oxford) presents Hedonism Reconsidered. Strahilevitz on the Right to Destroy Lior Strahilevitz (University of Chicago Law School) has posted The Right to Destroy on SSRN. Here is the abstract:
Gibbons on a Federal Common Law of Copyright Contract Llewellyn Joseph Gibbons (University of Toledo - College of Law) has posted Stop Mucking up Copyright Law: A Proposal for a Federal Common Law of Contract is a Common Sense Solution (Rutgers Law Journal, Forthcoming) on SSRN. Here is the abstract:
Wasserman on Symbolic Counter-Speech Howard M. Wasserman (Florida International University College of Law) has posted Symbolic Counter-Speech (William & Mary Bill of Rights Journal, Vol. 12, February 2004) on SSRN. Here is the abstract:
Gross on Constitutional Emergency Provisions Oren Gross (University of Minnesota Law School) has posted Providing for the Unexpected: Constitutional Emergency Provisions (Israel Yearbook on Human Rights, Vol. 32, 2004) on SSRN. Here is the abstract:
Sunday, January 25, 2004
Legal Theory Calendar
At the University of Chicago's political theory workshop series, Anne Holthoefer, University of Chicago, presents A Procrustean Bed? International Law and the Shaping of International Order. At George Mason's Philosophy, Politics and Economics series, Phil Mirowski (Department of Economics, University of Notre Dame) presents Philosophizing with a Hammer. At Oxford's Moral Philosophy Seminar, Roger Crisp (Oxford) presents Hedonism Reconsidered.
At Oxford's Jurisprudence Discussion Group, G. A. Cohen (Oxford) presents Rescuing Justice from Constructivism. At Oxford's Ockham Society, Andreas Szigeti presents Moral Sentiments and Moral Dilemmas.
At Villanova law, John Parry (University of Pittsburgh School of Law) presents Chavez v. Martinez and the Jurisprudence of Torture At Loyola Marymount, Laurie Levenson (LMU) presents Why Looks Matter: The Impact of Non-Evidence on the Courtroom. At Yale's philosophy series, David Sussman presents Kant and the Politics of Disgrace..
Also at Penn, Martha Nussbaum (Ernst Freund Distinguished Service Professor of Law and Economics, University of Chicago) is giving the JUDITH R. BERKOWITZ ENDOWED LECTURESHIP IN WOMEN'S STUDIES. Her title is Gender Justice, Human Rights, and Human Capabilities. At Boston University law, Susan Koniak (BU) presents How Like a Winter? The Plight of Absent Class Members Denied Adequate Representation. At Florida State, Jennifer Mnookin, University of Virginia School of Law, presents Atomism, Holism and the Law of Evidence. At Georgetown's Colloquium on Intellectual Property & Technology Law, Rosemary J. Coombe, York University, presents The Globalization of Intellectual Property: Informational Capital and Its Cultures. At Stanford's Olin series, Terry Fisher (Harvard Law School) presents An Alternative Compensation System for the Entertainment Industry. At the University of Michigan's law and economics series, Omri Ben-Shahar, Michigan, presents "Agreeing to Disagree": Filling Gaps in Deliberately Incomplete. The title on the website is "incomplete," but not deliberately so. At George Mason, Craig Lerner, GMU School of Law, presents “Accomodations” for the Learning Disabled: A Level Playing Field or Affirmative Action for Elites? At Oxford's Public International Law Discussion Group, Robert Volterra presents The Commission on the Limits of the Continental Shelf: Technical Science, Star Chamber, or Quasi-Judicial Tribunal? At the Australian National University's RSSS, Norva Lo (La Trobe University) presents Humpty Dumpty Analysis of 'Valuing', Empty Analysis of 'Valuable'. At UCLA's legal history series, Sally Gordon, University of Pennsylvania, presents Parochial School Funding: Catholics, Protestants, and Legal Activism at Mid-Century.
At Oxford's faculty of laws, Diamond Ashiagbor presents Economic and social rights in the EU charter (on human rights, social rights and social policy discourse). At Oxford's Jowett Society, Jennifer Saul (Sheffield) presents Pornography, Speech Acts, and Context. At the University of North Carolina's philosophy department, Cynthia Stark (Utah) presents How To Include the Severely Disabled in a Contractarian Theory of Justice. Legal Theory Lexicon: Causation
Cause-in-Fact & Legal Cause Let’s put the most important distinction on the table right away. Contemporary legal theory and judicial practice assume that there is a distinction between legal cause on the one hand and cause-in-fact on the other. What does that mean? That’s a huge question, of course, but we can state one conclusion straight away: that X is a cause-in-fact of Y does not entail that X is a legal cause of Y. Less obviously, that X is a legal cause of Y does not entail that X is a cause-in-fact of Y. The various ways that cause-in-fact and legal cause can come apart leads many to the conclusion that legal cause simply has nothing to do with causation, but this turns out to be an exaggeration. I know this all sounds very airy. So let’s get down to brass tacks! Cause-in-Fact What do we mean when we say that X is a cause-in-fact of Y? Many law students learn that the answer to this question is but-for causation. If it is the case that but for X, Y would not have occurred, then X is a but-for cause of Y and hence X is a cause-in-fact of Y. This simple story works most of the time, and as a rough and ready rule of thumb, it isn’t half bad. But it turns out that if you try to use but-for causation as a hard and fast rule for determining whether X is the cause of Y, you will run into trouble, sooner or later. In torts and criminal law, but-for causation runs into trouble somewhere in the midst of the first-year course. In a sense, the point of this Lexicon post is to provide a set of tools that for understanding the troubles that overreliance on but-for causation can cause. Necessary and Sufficient Causes The first item in the causation toolkit is the distinction between necessary and sufficient cause. The basic ideas are simple and familiar. X is a necessary cause of Y, if Y would not have occurred without X. Ben’s running the red light is a necessary cause of the damage to Alice’s car, just in case the damage would not have occurred without Ben’s having run the light. X is a sufficient cause of Y, if Y would have occurred so long as X occurred. Alice’s shooting Ben through the heart is a sufficient cause of Ben’s death, just in case the shot thru the head by itself would have caused Ben’s death. The Role of Counterfactuals The notions of necessary and sufficient causation are familiar to almost everyone. We use these ideas all the time in everyday life. But the very familiarity of these concepts creates a temptation to take them for granted. There is an important feature of these ideas that our day-to-day use of them does not make explicit. Both necessary and sufficient causation are counterfactual concepts. What does that mean? “Counterfactual” is simply the fancy name for “what if” thinking. What if Ben had stopped at the red light? Would the damage to Alice’s car still have occurred? What if the Ben had gotten immediate medical attention? Would the shot through the head still have killed him? Every statement regarding a necessary or sufficient cause can be interpreted as making a counterfactual (“what if”) claim. What-if reasoning is itself familiar and ordinary. When we say, Ben’s running the red light was a necessary cause of the damage to Alice’s car, we are claiming that if the world had been different and Ben had not run the red light, then Alice’s car would not have been damaged. We imagine what the world would have been like if Ben had stopped at the red light, and Alice had proceeded through the intersection without being struck by Ben’s car. Counterfactual reasoning can get more complicated that this, but for our purposes we can use everyday what-if reasoning as our model of role of counterfactuals in necessary and sufficient causation. Overdetermination Once we’ve gotten the notions of necessary and sufficient causes, we can move on to the idea of overdetermination. An effect is overdetermined if it has more than one sufficient cause. Take the case of Alice shooting Ben through the heart. We have postulated that the bullet passing through the heart was a sufficient cause of Ben’s death, but it may not have been a necessary cause. Suppose that Alice was a member of a firing squad, and that at the exact same moment that Alice’s bullet passed through Ben’s heart, another Bullet, fired by Cynthia, passed through Ben’s cerebral cortex and that this would have resulted in Ben’s death, even if Alice’s had not fired or her bullet had missed. Ben’s death now results from two sufficient causes, but neither Alice’s shot nor Cynthia’s shot was necessary. If Alice had not fired, Cynthia’s shot would have killed Ben. If Cynthia had not fired, Alice’s shot would have killed Ben. Overdetermination is important, because it undermines the idea that but-for causation tells us everything we need to know about cause-in-fact. We might say that both Alice and Cynthia’s shooting caused Ben’s death or we might say they were both partial causes of Ben’s death, but we would not be likely to say that neither Alice nor Cynthia’s shot was the cause. The firing squad example was described as a case of simultaneous overdetermination—both sufficient causes occurred at the same time. What if Cynthia shot a few seconds before Alice and Ben died before Alice’s shot pierced his heart? In that case, Cynthia’s shot would have preempted the causal role of Alice’s shot. If Cynthia had missed, then Alice’s shot would have killed Ben. This kind of case is sometimes called preemptive causation. Coincidence Overdetermination poses one kind of problem for but-for causation, coincidence poses another a different sort of difficulty. Suppose the driver of a trolley is speeding. As a result the trolley is in just wrong place and time and a tree falls, injuring a passenger. If trolley had gone just a little faster or just a little slower, the tree would have missed the trolley and the injury would not have occurred. Given these circumstances, speeding was a but-for cause (a necessary cause) of the tree injuring the passenger. So what? Coincidence is no problem for cause-in-fact, but it does pose a problem for the legal system. Intuitions vary, but lots of folks are inclined to believe that one should not be legally responsible for harms that one causes as a result of coincidences. Coincidence is related to a variety of other problems with but-for causation. Take our example of Ben running the stoplight and hitting Alice’s car. Running the stoplight was one but-for cause of this accident, but there are many others. For example, Alice’s being in the intersection was also a but-for cause. And how did Alice come to be in the intersection at just the time when Ben was running the red light? If her alarm clock hadn’t gone off, she would have slept in and arrived in the intersection long after Ben, so her alarm clock’s ringing was another but-for cause. And you know how the story goes from here. As we trace the chain of but-for causes back and out, we discover that thousands and millions and billions of actions and events are but-for causes of the accident. Legal Cause What do we about the problems with problems created by but-for cause? One way that the law responds is with the idea of legal cause or proximate cause. In this post, we cannot hope to achieve a deep understanding of legal cause, but we can get a start. Here are some of the ideas that help me to understand legal cause. First, there is a terminological issue: causation may be confused with responsibility. “Legal cause” is only partially about cause. We start with the idea of cause-in-fact (understood in light of the distinction between necessary sufficient cause). This idea of cause seems, on the surface, to fit into the structure of various legal doctrines. So we imagine that if a defendant breaches a duty of care and causes a harm, then defendant is legally responsible for the harm. This works for lots of cases, but then we start thinking about other cases like overdetermination and coincidence. “Legal cause” is the way that we adjust our ideas about legal responsibility to overcome the counterintuitive results that would follow from a simple reliance on but-for causation. In other words, “legal cause” may be a misnomer. It might be clearer if we used the phrase “legal responsibility” (or some other phrase) to describe the ways in which we adjust the law. Second, legal cause is frequently associated with the idea of foreseeability. For example, in coincidence cases, the harm (the tree injuring the passenger) is not a foreseeable consequence of the wrongful act (driving the trolley at an excessive speed). If the purpose of the law is deterrence, then no good purpose may be served by assigning legal responsibility in cases where the effect is unforeseeable. Third, legal cause is sometimes associated with the idea of proximity in time and space. Of course, the phrase “proximate cause” emphasizes this connection. We usually don’t want to hold defendants responsible for the remote and attenuated effects of their actions. We frequently do want to hold defendants responsible for the immediate and direct effects of their actions. “Proximity” seems to capture this point, but an overemphasis on proximity in time and space leads to other problems. Some immediate consequences do not give rise to legal responsibility: the trolley driver may have started speeding just seconds before the tree fell. Some causal chains that extend for long distances over great durations do give rise to legal responsibility: Osama bin Laden’s responsibility for 9/11 would not be vitiated by the fact that he set events in motions years in advance and thousands of miles away. Probability Our investigation of causality so far has elided an important set of issues—the connections between causation and probability. These connections are far too large a topic for this post, but even a superficial analysis requires that we consider two perspectives--ex ante and ex post. Ex post questions about causation arise in a variety of contexts, but for the legal system, a crucial context is provided by litigation and especially trial. In many cases, there is no doubt about causation. When Ben’s car speeds through the red light and hits Alice’s car, we don’t have much doubt about what caused the damage. But in many types of cases, causation will be in doubt. Did the chemical cause cancer? Was the desk job the cause of the back injury? Sometimes the evidence will answer these questions with certainty (or perhaps, with something that is so close to certainty that we treat it as certainty for legal and practical purposes). But in other cases, the evidence will leave us with a sense that that the defendant’s action is more or less likely to have caused the harm to the defendant. Such probabilities may be expressed either qualitatively or quantitatively. That is, we might say that it is “highly likely” that X caused Y or we might say that there is a 50% chance (p = .5) that X caused Y. Ex ante issues of causation also arise for the law. For example, the legal system may be required to assign a value to a risk of harm that has not yet been realized. David has been exposed to asbestos, but may or may not develop cancer. In this case, probabilities refer to the likelihood of future events. Decision theory and mathematics have elaborate formal machinery for representing and calculating probabilities. In this short post, we cannot even scratch this surface, but there are two or three bits of notation that every legal theorist should know:
--The symbol “|” is frequently used to represent conditional probabilities. Suppose we want to represent the probability that X will occur given that Y has occurred, we can use this notation: p(X|Y). So we could represent the sentence, “The probability of Cancer given Exposure to Asbestos is ten percent,” as p(C|EA)=0.1. Once we have the distinction between types and tokens in place, we can define individual causation as a causal relationship between a token (e.g. a token event) and another token (e.g. a token action). And we can define systematic causation as a causal relationship between a type (e.g. a type of event) and another type (e.g. a type of action). Science studies causal relationships between types; trials frequently involve questions about the causation of one token by another. This leads to another important point: the question whether an individual harm was caused by an individual action will sometimes depend on the question whether a systematic causal relationship exists; for example, the question whether this factory’s release of a chemical caused an individual case of cancer may require a jury to resolve a “scientific” question about systematic causation. Conclusion Even though this is a long entry by the standards of the Legal Theory Lexicon it is a very compressed and incomplete treatment of the concept of causation. Given the way legal education is organized (around doctrinal fields like torts, criminal law, and evidence), most law students never get a truly comprehensive introduction to causation. Torts may introduce the distinction between cause-in-fact and legal cause; criminal law, problems of overdetermination; and evidence, the relationship between probability and causation. If this post accomplishes anything of value, I hope that it serves as warning—causation is a deep and broad topic about which there is much to learn. Calendar & Lexicon Late Today The Legal Theory Calendar and the Legal Theory Lexicon will be posted late today. I'm returning home from the Roundtable on Causation and Probability in Death Valley. Update: When I returned home, my intenet connection was out. The Lexicon entry is now up, but the Legal Theory Calendar won't go up until later on Monday. Saturday, January 24, 2004
Legal Theory Bookworm This week the Legal Theory Bookworm recommends Placing Blame, a General Theory of the Criminal Law (Oxford University Press ). Moore is one of the most interesting and deep thinkers in contemporary legal theory. Here is the blurb:
Download of the Week This week the Download of the Week is Inheriting Responsibilities by David Miller. Here is a taste of this nifty paper:
2) The demands made by members of the Australian Aboriginal community for compensation and for a national Day of Apology for the so-called ‘stolen generation’ of Aboriginal children taken from their families and brought up in white homes or orphanages. 3) The compensation of $122 million awarded by the US Supreme Court to the Sioux Indians for the occupation by whites in the late 19th century of the goldrich Black Hills area that had previously been reserved to the Sioux by treaty. 4) Demands that Japan should pay compensation to ‘comfort women’ taken from other East Asian countries (especially Korea) and forced into prostitution by the Japanese military, giving rise to official apologies and the creation of an Asian Women’s Fund to offer compensation to the women involved. 5) Demands that items of symbolic significance seized from their original owners should be returned to those owners or their descendants, for instance the demand that the Parthenon Marbles should be returned to Greece, or the demand by some aboriginal peoples that the bones of their ancestors now held in museums across the world should be sent back to them for reburial. 6) The many and varied demands that have been made in the US as forms of redress for black slavery, from land settlements for blacks, to financial compensation to the descendants of slaves, to affirmative action policies, to formal apologies for slavery on the part of Congress or the President. |