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Vanderbilt Law Review

First Page

1071

Abstract

Few issues in tort law are more in need of clarification than those encompassed by the concepts of legal cause and duty, which are not only the subject of "opaque, confused and contradictory" treatments in the American Law Institute's Restatement of the Law of Torts,' relied upon by many American courts, but also the subject of even more opaque and confused treatment in many foreign jurisdictions. The focus of this conference is on tort law in the United States, and my assigned task is to comment on the issues encompassed by the concept of legal cause, especially as they are or should be treated in the Restatement. As anyone who is familiar with the concept of legal cause will be aware, and as Jane Staple- ton's article makes clear, an adequate discussion of the concept must encompass not only the empirical issue of causal contribution and the normative issue of the extent of legal responsibility for tortiously caused consequences, but also the related concept of duty. Thus, the assigned task covers an area that is broad and complex, and it is made more difficult by the general failure, in the Restatement and elsewhere, to properly distinguish and clarify the various analytical, empirical, and normative issues that are confusingly and even contradictorily lumped together in one or the other or all of these legal concepts.

In her article, Stapleton comments on some of my prior articles, in which I undertook a detailed analysis of the empirical issue of causal contribution and emphasized the importance of (1) distinguishing that issue from the prior issue of identifying tortious conduct and the subsequent issue of the extent of legal responsibility for tortiously caused consequences; and (2) focusing the causal- contribution inquiry on the tortious aspect of the defendant's con- duct.3 While Stapleton and I agree on many basic points, we also disagree on some significant ones, as Stapleton herself notes. In the following parts of this Article, I will quickly note the points of agreement and spend more time on the points of disagreement, in the hope of further narrowing our disagreements or at least clarifying the underlying issues. I will concentrate, once again, primarily on the empirical issue of causal contribution and the importance of distinguishing it from the normative issues of tortious conduct, legal injury, and the extent of legal responsibility for tortiously caused injuries. However, I will focus more than I have in the past on the (mis)handling of these issues in the Restatement, while also making a few comments about the Restatement's (mis)handling of the issues of duty and the extent of legal responsibility for tortiously caused consequences.

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