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Probabilistic Causation in the Law

Author

Listed:
  • Frederick Schauer
  • Barbara A. Spellman

Abstract

This paper challenges the view that the legal system's conception of causationis largely deterministic and token-level because of law's focus on assigning ex post responsibility for past acts. We argue, in opposition, that the probabilistic, ex ante, and type-level conceptions of causation that dominate the social sciences have a larger place in the legal system than is often recognized. Not only does the law frequently use probabilistic conceptions of causation for ex ante rule generation (as opposed to rule application), but probabilistic conceptions also play a substantial role even in the ex post application of legal rules.

Suggested Citation

  • Frederick Schauer & Barbara A. Spellman, 2020. "Probabilistic Causation in the Law," Journal of Institutional and Theoretical Economics (JITE), Mohr Siebeck, Tübingen, vol. 176(1), pages 4-17.
    • Handle: RePEc:mhr:jinste:urn:doi:10.1628/jite-2020-0003
    DOI: 10.1628/jite-2020-0003
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    More about this item

    Keywords

    causation; causality; probabilistic causation; deterministic causation; legal rules;
    All these keywords.

    JEL classification:

    • K10 - Law and Economics - - Basic Areas of Law - - - General (Constitutional Law)
    • K13 - Law and Economics - - Basic Areas of Law - - - Tort Law and Product Liability; Forensic Economics
    • K49 - Law and Economics - - Legal Procedure, the Legal System, and Illegal Behavior - - - Other

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