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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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Friday, December 31, 2004
Hasen on Thomas for Chief Rick Hasen has posted Why I Don't Expect There to Be a Chief Justice Thomas on Election Law Blog. Hasen has two arguments:
Legal Theory Books of 2004 Among the new books that came to the attention of the Legal Theory Bookworm in 2004, the following were especially interesting:
Downloads of the Year Among the many articles and papers mentioned on Legal Theory Blog in 2004, here are a few that are especially recommended:
Thursday, December 30, 2004
LoPucki & Weyrauch on Legal Strategy Lynn M. LoPucki and Walter O. Weyrauch (University of California, Los Angeles - School of Law and University of Florida, Levin College of Law) have posted A Theory of Legal Strategy (Duke Law Journal, Vol. 49, No. 6, April 2000) on SSRN. Here is the abstract:
Goldman on Internet Trademark Law Eric Goldman (Marquette University - Law School) has posted Deregulating Relevancy in Internet Trademark Law (Emory Law Journal, Vol. 54, 2005). Here is the abstract:
Wednesday, December 29, 2004
New on Law & Politics Book Review
COMPARATIVE CONSTITUTIONALISM AND GOOD GOVERNANCE IN THE COMMONWEALTH: AN EASTERN AND SOUTHERN AFRICAN PERSPECTIVE, by Johan Hatchard, Muna Ndulo, and Peter Slinn. Cambridge: Cambridge University Press, 2004. 388pp. Hardback. £65.00 / $120.00. ISBN: 0-521-58464-7. Reviewed by James B. Kelly. A CRITICAL INTRODUCTION TO LAW, THIRD EDITION, by Wade Mansell, Belinda Meteyard and Alan Thomson. London: Cavendish Publishing, 2004. 224pp. Paper £18.95 / $38.00. ISBN: 1-85941-892-9. Reviewed by Trish Oberweis. BUILDING THE UK'S NEW SUPREME COURT: NATIONAL AND COMPARATIVE PERSPECTIVES, by Andrew Le Sueur (ed). New York, N.Y.: Oxford University Press, 2004. 376pp. Hardback. £50.00 / $90.00. ISBN 0-19-926462-7. Reviewed by Carla Thorson. LAW AND EMPLOYMENT: LESSONS FROM LATIN AMERICA AND THE CARIBBEAN, by James J. Heckman and Carmen Pagés (eds). Chicago: University of Chicago Press, 2004. 475pp. Cloth $95.00. ISBN: 0-226-32282-3. Reviewed by Matthew M. Taylor. Book Announcement: Soames on Reference & Description
Klick on Salvation as Solution to Free Rider Problems Jonathan Klick (Florida State University - College of Law) has posted Salvation as a Selective Incentive (International Review of Law and Economics, Forthcoming) on SSRN. Here is the abstract:
Tuesday, December 28, 2004
Onwuachi-Willig on Justice Thomas & Racial Identity Angela Onwuachi-Willig (University of California, Davis - School of Law) has posted Just Another Brother on the SCT?: What Justice Clarence Thomas Teaches Us About the Influence of Racial Identity (Iowa Law Review, Vol. 90, 2005) on SSRN. Here is the abstract:
Bellia on Federal Common Law & State Courts Anthony J. Bellia Jr. (Notre Dame Law School) has posted State Courts and the Making of Federal Common Law (University of Pennsylvania Law Review, Vol. 153, 2005) on SSRN. Here is the abstract:
Monday, December 27, 2004
Posner on Morality and Public Policy Richard Posner is guest blogging over at the Leiter Reports. He has a post entitled Faith-Based Morality and Public Policy. Here's a taste:
Second, as Rawls's thought evolved, he eventually came to what he called the "wide view" of public reason. Here is how he expressed the crucial feature of the wide view:
Johnson on Race Kevin Johnson (UC Davis) has posted Roll Over Beethoven: 'A Critical Examination of Recent Writing about Race' (Texas Law Review, Vol. 82, No. 717, 2004) on SSRN. Here is the abstract:
De Soysa, Bailey, & Neumayer on Democracy, Institutional Design, and Economic Sustainability Indra De Soysa , Jennifer Bailey and Eric Neumayer (Norwegian University of Science and Technology , Norwegian University of Science and Technology - General and London School of Economics - Department of Geography and Environment) have posted Free to Squander? Democracy, Institutional Design, and Economic Sustainability, 1975-2000 on SSRN. Here is the abstract:
Brown Reviews Feelings and Emotions On Metapsychology, Sam Brown reviews an anthology entitled Feelings and Emotions: The Amsterdam Symposium by Antony S.R. Manstead, Nico H. Frijda and Agneta Fischer, Cambridge University Press, 2004. Here is a taste:
Sunday, December 26, 2004
Legal Theory Lexicon: Speech Acts
Legal theorists are interested in speech act theory for a variety of reasons, but one of the most important is that speech act theory helps to explain the way that the law uses language. Statutes, holdings, and constitutional provisions aren't like "the cat is on the mat." That is, a statute does not tell us how the world is in the same way that a declaratory sentence does. Legal language is full of speech acts. This entry in the Legal Theory Lexicon provides a rough and ready introduction to speech act theory pitched at law students (especially first-year law students) with an interest in legal theory. Sentences, Propositions, Meaning, and Truth There are lots of ways we could start, but let's begin with a simple sentence. "The sidebar of legal theory blog contains a link to Balkinization." What does this sentence mean? One answer to that question is pretty straightforward. There is an object in the world (the sidebar of legal theory blog) and that object includes another, "a link to Balkinization." Simple declarative sentences like this have truth values (or are "truth-apt"). In this case, the sentence is true, because the sidebar to Legal Theory Blog actually does have a link to Balkinization. There is a temptation to think that all sentences are like simple declarative sentences in that (1) the meaning of the sentence can be cashed out by the way it refers to the actual world, and (2) if the sentence is meaningful (i.e. it succeeds in referring), then the sentence has a truth value. O.K., that was a lot to swallow, but what does it have to do with "speech acts"? Now, take this expression in English: "Please add my blog to your blogroll." Does this sentence refer to anything? Well, it does include elements that refer, e.g. "my blog" and "your blogroll." But this sentence doesn't assert that my blog is on your blogroll. It may imply that my blog currently is not on your blogroll, but that implicit assertion doesn't exhaust its meaning. The sentence "Please add my blog to your blogroll" is a request. By uttering (or posting) these words, I am making a request. If you do add my blog to your blogroll, the request will succeed. If you don't, the request will have failed. Although the request can succeed or fail, it would be strange indeed to say that "Please add my blog to your blogroll" is either true or false. Requests are not truth-apt; they do not bear truth values. Are there any other types of expressions that are similar to requests? Once we start looking, we will discover lots and lots. Orders, questions, offers, acceptances, warnings, invitations, greetings, welcomes, thank yous--all of these are types of expressions that do not seem to refer or to have truth values. What do these expressions mean then, if they don't refer? When I gave an order, I perform an action--the act of ordering X to do Y. When I make an offer, I perform an action--the act of creating a legally effective option for the offeree to form a legally binding contract by accepting the offer. When I extend an invitation to a party, I perform an action--the act of inviting person P to event E. Speech act theory begins with the idea that language can be used to perform actions. Form and Function We might be tempted to think that we can tell the difference between sentences that describe the world and expressions that perform actions simply by their form. So we might be tempted to say, "Sentences of the form X is Y express propositions that refer," whereas sentences of the form, "I hereby do X" perform a speech act. But language is much messier than this. Take the sentence, "This room is a pig sty." In some contexts, this sentence might be referential. If one were taking a tour of an animal husbandry research facility, the sentence "This room is a pig sty" might express a true proposition about the function of a particular room. But if the same words were used by a parent, in an annoyed tone, and directed to a teenage child, the real meaning of the expression might be, "Clean up your room!" Certain forms are characteristically associated with propositions that refer and others with the performance of speech acts, but the question of meaning depends on the context of utterance. Utterance, Locution, Illocution, Perlocution With the basic idea of a speech act under out belts, we can now introduce a useful set of terminological distinctions: A Typology of Speech Acts One of the tasks of speech act theory has been to develop typologies of speech acts. Here is one typology developed by Bach and Hamish: Speech Act Theory and Legal Theory How can legal theorists use speech act theory? We could start by noting the important role that speech acts play in the law. Laws themselves might be seen as speech acts--as types of commands or authorizations. In contract law, issues of contract formation frequently turn on questions whether particular utterances were speech acts of particular types. Was this utterance an offer? Was that statement an acceptance? In a very general way, speech act theory is helpful simply because it allows us to understand legal phenomena from a new angle. Speech act theory may also be helpful in resolving particular sorts of doctrinal puzzles. For example, in the theory of the freedom of speech, one might be puzzled about the unprotected status of certain expressions. Oral contracts are speech. Threats are speech. An order from a Mafia boss to a hitman is speech. But no one thinks that these instances of speech raise serious questions under the First Amendment. Why not? One possible answer to this question could begin with "marketplace of ideas" theory of free speech famously associated with Justice Holmes--a theory that emphasizes the role of freedom of speech in facilitating the emergence of truth from the unrestricted public debate and discussion. Directive speech acts, such as orders, do not make truth claims, and hence might be entirely outside the freedom of speech. But constantive speech acts, such as affirming, conjecturing, or disagreeing, do make speech claims and hence would raise free speech issues on the marketplace of ideas theory. Of course, one paragraph does not a theory of the freedom of speech make--for more on this, see my Freedom of Communicative Action. Here is another example. The hearsay rule is notoriously difficult to conceptualize precisely, because the canonical formulation, that hearsay is "an out-of-court declaration introduced for the truth of the matter asserted," is not transparent. Speech act theory may perform a clarifying function. The phrase "out of court declaration" may be clarified by reference to the categories of speech acts: out-of-court declarations are constantive speech acts. Other categories of speech acts, e.g. directives, commisives, and acknowledgements, are not declarations. Moreover, the phrase "for the truth of the matter asserted" may be illuminated by distinguishing propositional contents which may bear truth values, on the one hand, and illocutionary force and perlocutionary effects on the others. The hearsay rule is usually not violated if an out-of-court declaration is introduced for the purpose of demonstrating its illocutionary force. For example, a third party can testify to the making of an oral contract for the purpose of showing that the action--making the contract--was performed. If you are interested in acquiring a very basic knowledge of speech act theory, I recommend that you start with Austin's marvelous How to Do Things with Words. Although many of Austin's particular points have been criticized or superceded by subsequent work, this is a marvelous book--concise, illuminating, and a model of ordinary language philosophy at its best. More advanced readings are included in the bibliography below. Links Saturday, December 25, 2004
Legal Theory Bookworm The Legal Theory Bookworm recommends On The Rule of Law: History, Politics, Theory by Brian Z. Tamanaha. Here's a brief description:
Download of the Week The Download of the Week is Minimalism at War by Cass R. Sunstein. Here is the abstract:
Friday, December 24, 2004
Two Papers by Rawls Online Two well-known papers by John Rawls, Two Concepts of Rules and Justice as Fairness are now available online at HIST-ANALYTIC. I suspect most readers of LTB are familiar with these papers, at least by reputation. If not, these two papers are among the most important in modern political and moral philosophy. Very highly recommended. Confirmation Wars Department: Bush to Resubmit 20 Nominees The Los Angeles Times reports:
Lipshaw on Rational Choice Modelling of Judicial Decision Making In reply to Mialon, Rubin, & Schrag on Judicial Hierarchies & Judicial Preferences & A Comment on Rational Choice Modelling of Judicial Decision Making (posted yesterday), Jeff Lipshaw writes:
Thursday, December 23, 2004
Mialon, Rubin, & Schrag on Judicial Hierarchies & Judicial Preferences & A Comment on Rational Choice Modelling of Judicial Decision Making
The Abstract
This should come as no surprise. When judges decide cases they are engaged in a complex practical activity that responds to differential and imperfect information as well as individuated motivations and abilities. We don't expect rational choice models to predict individual behavior in detail in particular choice situations: try asking an economist to predict what you will do tomorrow! Assumptions & Reactions Back to the paper! Mialon, Rubin, & Schrag make a number of assumptions--as good modellers must. Assumptions must be simple in order to get robust models off the ground, but some of their assumptions weren't so much "simple" as "simply wrong." Here is an example or two:
However, as argued in this paper, lower level courts provide less protection to rules, and more to individuals, than do higher level courts. At any given time, lower courts would prefermore individual oriented rulings than they are allowed by the higher courts. Thus, if a higher court changes rulings to allow more attention to individuals (as did the Supreme Court after the Great Depression), then lower courts will gladly adopt these rulings. On the other hand, if the higher court has moved in the other direction, announcing more emphasis on rules (perhaps the situation that now obtains in the courts, with many Reagan-Bush judges in the Supreme Court), then we would expect the lower level courts to resist moving to this new level. Thus, for example, it should take longer to reverse the movement away from freedom of contract than it took to implement the movement in the first place. Even as speculative possibility, however, this account is highly contestable. Consider the following points: Wednesday, December 22, 2004
Westen on Consent Peter K. Westen (University of Michigan Law School) has posted Some Common Confusions About Consent in Rape Cases (Ohio State Journal of Criminal Law, Vol. 2, No. 1, pp. 332-359, Fall 2004) on SSRN. Here is the abstract:
Lerner & Tirole on the Economics of Information Sharing Josh Lerner and Jean Tirole (Harvard University - Finance Unit and University of Toulouse I - GREMAQ) have posted The Economics of Technology Sharing: Open Source and Beyond on SSRN. Here is the abstract:
Hay & Spier on Manufacturer Liability for Other-Caused Harms Bruce L. Hay and Kathryn E. Spier (Harvard Law School and Northwestern University - Kellogg School of Management) have posted Manufacturer Liability for Harms Caused by Consumers to Others on SSRN. Here is the abstract:
Tuesday, December 21, 2004
Downward Spirals Department Courtesy of Howard Bashman, I came across Supreme battle looms for Rehnquist successor by Andrew Miga in the Boston Herald. Here is a snippet:
Purdy on Ecosystem Management Bruce Pardy (Queen's University (Canada) - Faculty of Law) has posted Changing Nature: The Myth of the Inevitability of Ecosystem Management (Pace Environmental Law Review, Vol. 20, Summer 2003) on SSRN. Here is the abstract:
Khanna on Corporate Crimes Legislation Vikramaditya S. Khanna (University of Michigan at Ann Arbor - Law School) has posted Politics and Corporate Crime Legislation (Regulation, Vol. 27, No. 1, pp.30-35, Spring 2004) on SSRN. Here is the abstract:
Conference Announcement: Value Inquiry
Monday, December 20, 2004
Conference Announcement: Honoring and Examining the Work of Susan Moller Okin
Sunstein on Minalism at War Cass R. Sunstein (University of Chicago Law School) has posted Minimalism at War (Supreme Court Review, Forthcoming) on SSRN. Here is the abstract:
Dogan & Lemley on Merchandising Rights Stacey L. Dogan and Mark A. Lemley (Northeastern University School of Law and Stanford Law School) have posted The Merchandising Right: Fragile Theory or Fait Accompli? on SSRN. Here is the abstract:
Robinson & Cahill on the Model Penal Code Paul H. Robinson and Michael T. Cahill (University of Pennsylvania Law School and Brooklyn Law School) have posted Can a Model Penal Code Second Save the States from Themselves? (Ohio State Journal of Criminal Law, Vol. 1, No. 169, 2003) on SSRN. Here is the abstract:
Sunday, December 19, 2004
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. The idea of "necessary cause" is the same idea expressed by the phrase "but-for cause." 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. This is true, even though Ben would have died anyway, because Cynthia shot him through the head at the same time Alice shot him through the heart. 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. Bibliography
Causation (Oxford Readings in Philosophy) (Ernest Sosa & Michael Tooley eds. 1993). A fine collection of essays, with contributions by J.L Mackie, Michael Scriven, Jaegwon Kim, G.E.M. Anscombe, G.H. von Wright, C.J. Ducasse, Wesley C. Salmon, David Lewis, Paul Horwich, Jonathan Bennett, Ernest Sosa, and Michael Tooley. |