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1. Overview 1. Overview
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2. Involvement 2. Involvement
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3. Philosophical Issues the Law Can Ignore 3. Philosophical Issues the Law Can Ignore
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4. Other Theoretical Accounts of ‘Causation in the Law’ 4. Other Theoretical Accounts of ‘Causation in the Law’
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4.1 Early US Realists: A ‘Minimal’ Factual Concept 4.1 Early US Realists: A ‘Minimal’ Factual Concept
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4.2 Linguistic Analysis 4.2 Linguistic Analysis
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4.3 Corrective Justice 4.3 Corrective Justice
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4.4 Lawyer‐Economists: Marginalized Causation 4.4 Lawyer‐Economists: Marginalized Causation
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4.5 The New Realism 4.5 The New Realism
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5. Future Debates 5. Future Debates
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Further Reading Further Reading
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References References
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37 Causation in the Law
Get accessJane Stapleton is Ernest E. Smith Professor of Law at the University of Texas School of Law, Professor at the Australian National University College of Law, and Statutory Visiting Professor at Oxford University Faculty of Law. Her publications include ‘Choosing What We Mean by “Causation” in the Law’, Missouri Law Review 73 (2008).
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Published:02 January 2010
Cite
Abstract
Previous accounts of ‘causation’ in the law are flawed by their failure to appreciate that causal language is used to express different information about the world. Because causal terms have been used to communicate answers to different questions, any philosophical search for a free-standing account of causation is doomed. Lawyers require precision of terminology, so they should explicitly choose just one interrogation to underlie causal usage in law. It is argued that this interrogation should be chosen to serve the wide projects of the law. In these projects the law is interested to identify when a specified factor was ‘involved’ in the existence of a particular phenomenon, where the notion of ‘involvement’ identifies a contrast between the actual world and some specified hypothetical world from which we exclude (at least) that specified factor: this contrast being that, while in the former world the phenomenon exists, in the latter it does not. (Such contrasts of necessity can be generated in three ways, all of importance to the law.)
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