Causation Actually

This Article debunks the consensus that in concertedaction, concurrent causes, and alternative liabilitysituations, the actual causation requirement is alwaysmissing. While courts and scholars insist that in thesecases tort law holds liable parties who clearly did notcause the victim's harm, this Article offers a novelapproach. Using a simple model and applying it toleading decisions, this Article shows that a party who didnot and could not even potentially injure the victim couldnevertheless be a but-for reason for the harm. The Articlealso challenges claims that causation theories likeconcerted action, substantial factor and alternativeliability are fair to the victim or that they are designed todeter actors from engaging in "antisocial"activities.

Indeviation from the prior literature, this Article reveals thatthese causation theories reduce the parties' incentives totake care and result in more, rather than fewer, accidents.This Article further shows that, despite lip service to thecontrary, tort law promotes harmful activities that judgesdeclare immoral, antisocial and illegal. This Articleargues, however, that in many cases this result can bejustified on efficiency grounds. The Article concludes thatthe but-for test should have a larger role in causationanalysis and it provides a number of policyrecommendations to courts and lawmakers.