Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 6. Causation
neighboring lands by building or digging, is given, I presume, because of the public interest in
making improvement free, yet it generally is made absolute by the common law. It is not thought
worth while to let the right to build or maintain a barn depend upon the speculations of a jury as to
motives. . . .
Here certainly, except in a clear case, we should call in the jury. I do not suppose that any
one would call it prudent to stack flax within five feet of the engines or imprudent to do it at a
distance of half a mile, and it would not be absurd if the law ultimately should formulate an exact
measure . . . but at present I take it that . . . we should let the jury decide whether seventy feet was
too near . . . . Therefore, while the majority answer the first question, No, on the ground that the
railroad is liable upon the facts stated as matter of law, I should answer it Yes, with the proviso
that it was to be answered No, in case the jury found that the flax, although near, was not near
enough to the trains to endanger it if the engines were prudently managed, or else I should decline
to answer the question because it fails to state the distance of the stacks.
I do not think we need trouble ourselves with the thought that my view depends upon
differences of degree. The whole law does so as soon as it is civilized. Negligence is all degree,
—that of the defendant here degree of the nicest sort; and between the variations according to
distance that I suppose to exist, and the simple universality of the rules in the Twelve Tables, or
the Leges Barbarorum, there lies the culture of two thousand years.
Notes
1. Holmes and McKenna. Justice Holmes remains one of the most well-respected jurists and
scholars to have served on the Court. He is known, in particular, for his criticisms of legal
reasoning based on formal concepts such as “rights.” Holmes’s opinions, including his dissent in
LeRoy Fibre, anticipated much of the so-called “realist” jurisprudence of the twentieth century.
Justice McKenna, on the other hand, had neither the respect of his peers, nor an overarching
jurisprudential approach to the law. When William Howard Taft became chief justice seven years
after the decision in LeRoy Fibre, he found McKenna to be (in his words) “the worst and most
embarrassing member of the Court,” often unable to draft opinions without substantial guidance
from others.
Which jurist gets the better of the argument in LeRoy Fibre? What is the difference
between McKenna’s and Holmes’s conception of causation in the case? Is McKenna’s method
one that can easily be applied to other cases? Does it avoid the difficulty of “refinements and
confusing considerations” that Holmes seems to admit his own approach necessarily entails?
2. Coase on causation. In thinking about these questions, consider Ronald Coase’s view of
causation, which many commentators see as parallel to Holmes’s view from a half-century before.
The question is commonly thought of as one in which A inflicts harm on B and what
has to be decided is: how should we restrain A? But this is wrong. We are dealing
with a problem of a reciprocal nature. To avoid the harm to B would inflict harm
on A. The real question that has to be decided is: should A be allowed to harm B
or should B be allowed to harm A? The problem is to avoid the more serious harm.
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