Perhaps one clarification is in order: at trial "facts" are found, but the description of those facts are already determined by the kinds of policies to which I referred. So, for example, if A and B both shoot C through the heart at the same time, the fact finder will not puzzle in the abstract over whether A or B, both, or neither, "caused" C's death. Rather, the fact finder will be instructed explicitly that simultaneous independent adequate causes both "cause" the death of the victim. If the fact finder finds, in other words, that A and B both shot C at the same time through the heart, then that is sufficient to find that they both "caused" C's death for purposes of the homicide statute. Same more or less with all the other examples I gave.
To be sure, perhaps some policy makers are influenced by the philosophical and probabilistic puzzles of causation, but frankly I have not yet met one who is (and I do teach in the area); they are instead concerned about intent, responsibility, deterrence, etc. Whether they ought to be is a different matter, of course. In any event, my only point was a caution about making too much of what appears to be legal decisions or discussions about "causation" because in fact the discourse is likely to be about something else. At 10:10 AM 10/8/2003 -0700, Peter Tillers wrote: >Ronald J. Allen wrote [as reported by Joseph Halpern]: > > > ... "Causation" in the law is virtually > > never about causation; it is instead about responsibility. Conclusions > > in terms of causation usually are merely the means of carrying out those > > determinations of responsibility. > >While I do not specialize in "legal causation," Ron Allen's statement >strikes me as an exaggeration. While it is undeniable (I think) that law's >purposes (and law's texts) influence how judges understand & interpret >causation requirements (in the law) and while law's purposes certainly >influence how causation questions are addressed in legal proceedings, I am >suspicious of the implicit suggestion that the question of causation in law >[generally] presents us with two entirely disjoint possibilities: causation >requirements in law are either a matter of policy or they present an >epistemic or empirical question but they don't [normally] present us with >both kinds of questions. I suspect that causation requirements in law >normally _do_ present both kinds of questions in legal proceedings and that >the law, for reasons of "policy," instructs judges [usually only implicitly] >- -- and eventually jurors, if there are any -- to apply certain epistemic >criteria -- or, if you will, empirical criteria -- rather than others. I >think when judges or jurors are asked to resolve a causation question, they >ordinarily think they are being asked to resolve a factual question, albeit, >perhaps, in a certain way. > >But what do I know? I teach the law of evidence and I teach fact >investigation, but I do not teach subjects such as torts, criminal law etc. >- -- though I confess to having taught criminal law in the long-distant past. >I just want to register an uniformed law professor's skepticism about Ron >Allen's apparent(?) position that legal causation is [normally} _ALL_ a >matter of policy. He may be right, but, if he is, I am very much surprised. > >Peter T Ronald J. Allen Wigmore Professor of Law Northwestern University Phone: 312-503-8372 Fax: 312-503-2035
