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Publication Date

2016

Abstract

This Article debunks the consensus that in concerted
action, concurrent causes, and alternative liability
situations, the actual causation requirement is always
missing. While courts and scholars insist that in these
cases tort law holds liable parties who clearly did not
cause the victim's harm, this Article offers a novel
approach. Using a simple model and applying it to
leading decisions, this Article shows that a party who did
not and could not even potentially injure the victim could
nevertheless be a but-for reason for the harm. The Article
also challenges claims that causation theories like
concerted action, substantial factor and alternative
liability are fair to the victim or that they are designed to
deter actors from engaging in "antisocial"activities. In
deviation from the prior literature, this Article reveals that
these causation theories reduce the parties' incentives to
take care and result in more, rather than fewer, accidents.
This Article further shows that, despite lip service to the
contrary, tort law promotes harmful activities that judges
declare immoral, antisocial and illegal. This Article
argues, however, that in many cases this result can be
justified on efficiency grounds. The Article concludes that
the but-for test should have a larger role in causation
analysis and it provides a number of policy
recommendations to courts and lawmakers.

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