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

Witt & Tani, TCPI 6. Causation
[Take, for example,] the case of a confectioner the noise and vibrations from whose
machinery disturbed a doctor in his work. To avoid harming the doctor would inflict
harm on the confectioner. The problem posed by this case was essentially whether
it was worth while, as a result of restricting the methods of production which could
be used by the confectioner, to secure more doctoring at the cost of a reduced supply
of confectionery products. Another example is afforded by the problem of straying
cattle which destroy crops on neighboring land. If it is inevitable that some cattle
will stray, an increase in the supply of meat can only be obtained at the expense of
a decrease in the supply of crops. The nature of the choice is clear: meat or crops.
What answer should be given, of course, is not clear unless we know the value of
what is obtained as well as the value of what is sacrificed to gain it. . . . In the case
of the cattle and crops, it is true that there would be no crop damage without the
cattle. It is equally true that there would be no crop damage without the crops. The
doctor’s work would not have been disturbed if the confectioner had not worked his
machinery; but the machinery would have disturbed no one if the doctor had not set
up his consulting room in that particular place. . . . If we are to discuss the problem
in terms of causation, both parties cause the damage.
R. H. Coase, The Problem of Social Cost, 3 J. L. & ECON 1, 2 (1960). Coase’s criticism of causal
reasoning as a way of allocating moral responsibility implicitly challenges Justice McKenna’s
decision in LeRoy Fibre. Coase insists that it is the height of foolishness to insist that the railroad
“caused” the injury to the flax manufacturer. If the flax manufacturer plaintiff is able to recover
damages from the railroad, or obtain an order that the railroad cease its dangerous operations, then
it would be just as true to say that the flax manufacturer “caused” injury to the railroad.
As Coase and Holmes see it, the real question is not one about causation in the sense of
who caused harm to whom. The only real question is about what our social values are, though we
may articulate our tacit judgments about those social values in the form of causal language. We
say “A hit B” because we have decided that A is properly thought of as responsible for the
collision of A’s hand with B’s nose. It would be just as true to say that B hit A, since if it weren’t
for B’s nose being where it was at the crucial moment, A’s fist would have passed harmlessly
through the air. Of course, it sounds silly to say any such thing. But that is because our causal
conventions embody the normative judgments we have already made about the situation in
question. That being the case, Coase and Holmes seem to say, the only reasonable way to think
about the question is to decide which allocation of the harm best embodies a society’s preferred
policy goals.
Much of twentieth- and twenty-first-century social policy starts from the clear-headed
vantage point that jurists like Holmes and economists like Coase afford. But is McKenna’s
alternative really so misbegotten? Note, for one thing, that McKenna offers jurists a clean and
easy way to measure causation, one pegged to crossings of real property borders. Holmes’s
alternative seems awfully fuzzy by contrast. Is this one of those instances in which, moving
forward, all we really need is a clear rule that the parties can deal with as they see fit?
3. Calabresi on causation. Judge Guido Calabresi agrees with Holmes and Coase that
causation is essentially a functional concept, one that can usually only be made sense of by
reference to the goals we bring to it: meat or crops, cakes or medicine. But Calabresi adds an
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