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But-for vs. Direct Causation in the Tort Law

How did the Romans think about causation in Torts? Professor Richard Epstein explains that the Romans crafted their rules based on obvious, direct causality first and then applied those same principles to indirect causes. Professor Epstein maintains that American law reverses this order and starts with rules that cover indirect causation first. https://youtube.com/watch?v=WAKcgW4J29Y


Modern American law makes an absolutely fatal mistake, in my judgment. What it does is it introduces a very fuzzy notion of but-for causation, which is saying, "but for the occurrence of this, that would not have happened." Sort of a counterfactual situation, and there's no very tight physical or temporal connection that is inherent in the but-for formulation. So, what the Romans did is they actually lucked into the right solution. Tight connections first, and then the theory of causation is how far can you extend this kind of relationship and still say that we've got ourselves these physical sorts of connection? So then, how do you actually do that? Well, the first case they give is essentially you take your hands and you strangle somebody. If somebody wants to deny that that's force, you could say it's metaphorical. And then, the other thing you could do is you could punch, but suppose now what you do is you put in your hand a sword, and you slay him. Does the introduction of an instrument essentially change the nature of the causation so that we say, you did not do it because you had this sword in your hand? And if you look at the ordinary use of transitive verbs in the English language, and somebody says, "I shot him," "I clubbed him to death," and so forth, you have exactly the same direct connection by the use of force with respect to these instrumentalities that are under the exclusive control of another individual. So, it turns out that the direct action under the stature for "occidere" applies in these particular kinds of cases. And then, things start to become just a little bit more complicated in a whole variety of situations. . Romans had a peculiar pension for poisoning one another, as anybody who's ever seen I, Claudius will know. Throwing some poison down your throat doesn't kill you in the same way a sword does, but the chemical interactions between what you swallow and everything else then happening is different. And so, does that change the basic rule of the situation? And the Romans thought about this for a long time, and they said, "So long as you forced it down their mouth, the digestive juices and stuff that works on this are no different than the thrashing about that you have by the man who's been thrown off the edge of the cliff, so, we're going to treat that as though it's a case of direct force, and it's covered by the stature." At that particular point, it is very difficult for somebody to say that you forced this thing down their throat, and so it's very difficult to say that this is a case of occidere. And then, what you do is you ask the next question. Okay, it's not occidere. Do we really want to let this guy off Scott-free when, in fact, the dangers of insidious behavior may, in fact, be much more serious than the dangers of the direct use of force against somebody. And so, the Romans then introduced an absolutely critical distinction into their system to cover these analogous cases that are not reached by the stature, and that's the distinction between occidere and causam mortis praestare, and that mysterious Latin phrase "causam mortis praestare" means furnishing a cause of death. And if you apply it to the poison case, it seems to fit exactly like a T.

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