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Osgoode Hall Law Journal

Document Type

Article

Abstract

The problem of causation impinges upon virtually every area of the law. In this article, Mr. Pincus takes a novel approach to this complex problem in the context of tort law. He begins by highlighting some of the difficult causal issues that emerge from the Chernobyl nuclear disaster and a recent test case on nuclear experiments conducted in Nevada a number of decades ago. He identifies ten prototype cases of causation through the rich doctrinal history in this area, arguing that fundamental problems arise not only at the margin, but permeate even "simple" cases of causation. Three theoretical approaches are then critically examined- the commitment to purely 'factual" causal tests; the view that causal judgments are determined by social or economic policies; and Hart and Honoré’s classic attempt to avoid these "maximalist" and "minimalist" extremes. Mr. Pincus argues that none of these approaches adequately deals with the fundamental problems outlined Accordingly, he undertakes a linguistic analysis, developing a descriptive model for understanding causation that might also be applied to other legal problems Finally, he suggests that legislation be used to improve causal determinations within the tort system, and that in some circumstances injuries be compensated outside it.

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