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

Witt & Tani, TCPI 6. Causation
extra consideration that may make more sense of McKenna’s formalist approach, though it
undoubtedly takes that approach in directions that McKenna probably never anticipated:
[T]he use of such concepts [as causation] has great advantages over explicit
identification and separation of the goals. Terms with an historical, common law
gloss permit us to consider goals (like spreading) that we do not want to spell out or
too obviously assign to judicial institutions. Because, like all moral terms, causal
terms have to have meanings of their own that cannot be changed as a result of one
person’s analysis, they enable us to resist political pressures that would, if a more
“goal conscious,” antiseptic language were employed, result in a mixture of goals
thought to be less desirable. Finally, and probably most importantly, they enable
the introduction of goals we have not been able to spell out or to analyze, but which
nonetheless, together with analyzed goals, form part of that set of relationships we
call “justice.”
. . .
I am optimistic about our ability to use concepts, like cause, to promote analyzed
goals, and, like John Stuart Mill, I am skeptical of our ability to analyze all our goals
and, in addition, to acknowledge all that we can analyze. Thus, I am inclined to
believe that the requirement of causation . . . will survive . . . rather than be replaced
by direct appeals to those clearly identified goals which, by and large, those
requirements seem to serve.
Guido Calabresi, Concerning Cause and the Law of Torts: An Essay for Harry Kalven, Jr., 43 U.
CHI. L. REV. 69, 107-108 (1975).
4. Hart and Honoré on causation. Some leading authorities on the common law of causation
have pushed back against the functionalist turn in causation. In the mid-20th century, H. L. A.
Hart and Anthony Honoré bemoaned the Legal Realists’ “transition from the exhilarating
discovery that complex words like ‘cause’ cannot be simply defined and have no ‘one true
meaning’ to the mistaken conclusion that they have no meaning worth bothering about at all, but
are used as a mere disguise for arbitrary decision or judicial policy.” H.L.A. HART & ANTHONY
HONORÉ, CAUSATION IN THE LAW 3 (1959). Hart and Honoré argue that courts are not
surreptitiously insinuating policy into their decisions, but that “the plain man’s causal notions
function as a species of basic model in the light of which the courts see the issues before them,
and to which they seek analogies . . . .” Id. at 1. Objecting to the legal realist view that “the
distinction between causes and mere conditions is wholly without objective or factual warrant,” id.
at 29, Hart and Honoré appeal to a shared understanding of causation, arguing that cultural
conventions and “common sense” draw “the line between cause and mere condition.” Id. at 31.
In addition to the appeal to common sense, Hart and Honoré stress the human element of
causation in the law. They present the example of someone who has died with high levels of
arsenic in his blood:
. . . this is up to a point an explanation of his death and so the cause of it: but we
usually press for a further and more satisfying explanation and may find that
someone deliberately put arsenic in the victim’s food. This is a fuller explanation
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