Yuval Abrams

The theory and doctrine of proximate cause has been too easily dismissed. Two primary errors underlie this dismissal: a misunderstanding of “causal proximity,” and a mistaken inference from the correct observation that effects have multiple causes, to the claim that there is no hierarchy between proximate and more remote causes. This article defends the classic conception of proximate causation as causally grounded by reconstructing the doctrine and articulating an underlying concept of proximate causation in which proximity is relative (though still objective). Proximate causation is a relation between two causes and an effect, when one cause mediates the effects of another. This idea informs the doctrines of proximate cause, which, following Bacon’s Maxim, trace back from the injury to its causes, in sequence. along the paths of causation, until responsibility is absorbed, at which point the process terminates. Causal chains “break”: not because the cause and effect are too remote, but because a set of causes that are proximate, relative to these remote causes, are sufficient to absorb responsibility. With responsibility absorbed, there is nothing further to trace back. This is missed if tracing is from cause to injury, rather than in reverse, from injury to cause. As a matter of responsibility, the responsibility of remote actors—those that act through the agency of others, or those that fail to prevent the wrongdoing of others—is always subordinate to that of the causally proximate actor. This does not mean that the proximate actor always bears greater responsibility than the remote one, but when responsibility is transmitted remotely, it must be in virtue of a justifying or excusing condition for the proximate actor’s act. The order of justification follows the order of causation. Properly understood, proximate cause is essentially a defense that asserts that the defendant is not the most proximate cause to the harm, and that someone (or something) else is. The implications for both liability and contribution are discussed.

Causation is production, not dependence. It is not merely a matter of how two facts or events covary, but about what underlies that covariation. Furthermore, causation is unified (not fragmented or plural) and is a natural relation (in the world). To cause is to make something happen, to generate. The causal nexus (the web of causal influence) consists entirely of productive positive causes. With these fixed, the (causal) dependence relations are determined. Dependence belongs to the theory of explanation. Causal dependence is an explanatory notion: A causally explains B, in virtue of a causal relation between cause C and effect E. Confusing causation and explanation in this way underlies two related errors: the identification of omissions as causes and the embrace of causal pluralism. A proper understanding of causation as production can better make sense, both of the metaphysics of causation itself, and of the special role that causation plays in explanation, responsibility, and rational planning. Each of these has a special causal species (causal explanation, causal responsibility, etc.), in which dependences play an important role, but one that is distinct from the role played by causation itself. Morality and the law also attribute significance to causation, especially in terms of responsibility and liability. We are responsible for that which we cause. The law and common-sense morality both see an important distinction between active and omissive harming. Liability traditionally attaches more easily for active causing of harm than it does for omissions and failures to prevent harm (where the law requires a special duty). A production theory of causation and an understanding of how omissions are not properly causal makes better sense of the role of causation in liability. This requires refinement, since, the law does, selectively, apply liability to omissions and preventions. Crucially, however, and on a view that identifies omissions as causes, puzzlingly, liability for omissions requires a preexisting duty to perform. My account explains the law’s differential treatment of proper causal liability and this latter omissive liability, and, in the process, offers a novel theory of non-causal liability in terms of corrective justice, that is dependence-driven, for cases involving omissions. I argue that cases of liability for omissions are cases in which the liability is not properly causal; rather, when a duty is owed by a defendant to a plaintiff, the defendant has a second-order duty in corrective justice to place the plaintiff in the position she would have been had defendant comported with his duty. As such, what the defendant owes is not the damage “caused” by the omission, but to make good on the obligation that the defendant owes to place the plaintiff in the position in which she has a right to be.

What is guilt beyond a reasonable doubt (BARD) for a Bayesian? Is thinking of BARD in terms of probabilities a nonstarter? I propose an account of BARD compatible with Subjective Bayesianism that rejects the view that BARD is met by a threshold probability. BARD is a judgment, not merely about the credal state the factfinder endorses as her own (i.e. not merely as one’s own credence in guilt), but as about alternative possible credences, specifically those the factfinder does not endorse, but finds reasonable. To this end, I employ a Bayesian framework, expounded by Lange (1999), that permits revision of past prior probability assignments. Such a framework presupposes a point of view free from one’s prior from which a prior is judged. A trier-of-fact asks whether doubt persists among any reasonable starting point one might take; if it does, acquittal is warranted.

Analyses of factual causation face perennial problems, including preemption, overdetermination, and omissions. Arguably, the thorniest, are cases of omissive overdetermination, involving two independent omissions, each sufficient for the harm, and neither, independently, making a difference. A famous example is Saunders, where pedestrian was hit by a driver of a rental car who never pressed on the (unbeknownst to the driver) defective (and, negligently, never inspected) brakes. Causal intuitions in such cases are messy, reflected in disagreement about which omission mattered. What these analyses mistakenly take for granted, is that at issue is the 'efficacy' of each omission. I argue, on the contrary, the puzzle of omissive overdetermination favors taking the act/omission distinction seriously. Factual causation, properly understood precludes omissions (i.e. omissions are not causal). Of course, the law also attaches liability to omissions, but this works differently from liability for real causes (e.g. omissions have a duty requirement, they also respond differentially to difference-making considerations). The manner in which liability attaches for omissions differs from that of straightforward causal liability, and is entirely dependent on the underlying causal structure. Attention to that structure (e.g. that the driver's hitting the pedestrian with his car is what actually caused the injury) sheds light on which omissions matter (e.g. driver's failure to press on the brakes) and why (because that failure removes a defense the driver would have to liability for the accident he caused). Other cases, where the parties' connection is entirely omissive (e.g. two physicians fail to detect independently lethal conditions), come out differently (tracking moralized elements). The analysis offered makes better sense of both why omissive determination cases are puzzling and how to resolve them.