Date: Thu, 9 Aug 2007 14:46

From: David Cheifetz

Subject: Judges, Buses and A Butterfly in Tokyo

Jonathan:

An addendum -

(A) Assume, for the moment, that I (or somebody else) could show that an orthodox application of but-for - by that I mean what but-for is understood to mean in the ordinary case which is that there are no other independently sufficient : i.e., there is only one sufficient causal factor - to a scenario produces a series of inconsistent answers. I can do this. I know others reading this list can.

Assume that analysis is done. The doer concludes that but-for does not apply and goes to material contribution.

(B) Assume, for the moment, that material contribution in its Resurfice formulation, read for what it seems to say, does not apply to the scenario. You have outlined one argument. All you need to do is assume, as you did, that the impossibility issue is not related to some problem which is, or is analogous to, the absence of evidence due to problems in science.

How can we validly (in a legal sense) have a situation where neither of the only two tests for factual contribution apply? We can't, so long as those are the only two tests. Obviously, something "caused" the result, even it's not something that amounts to cause under Canadian legal logic.

So we have to conclude our understanding or either (A) or (B), or our application of (A) or (B) to the facts, is wrong. Or there's a third, as yet, undiscovered test lurking out there. We have to exclude, for the present, that last assumption. So, in making the decision as to whether it's but-for or material contribution, are we going to modify, clarify, 'whatever-ify' the test(s) just for the scenario that produced the conundrum or across the board?

Remember George Carlin's 7 words that can't be said on the public airwaves? Well, Canadian jurisprudence has those 7 plus one more. The "m" word. Regardless, let's try a chorus of, in 4 part harmony - we should get Arlo Guthrie here to do it in Alice's Restaurant mode - the Alphacell Cant: causation is "essentially a practical question of fact which can best be answered by ordinary common sense rather than abstract metaphysical theory". If we can't get Guthrie, we could do it plainsong. Or, if there's a good arranger reading, he or she could score a nice fugue for us. The beauty of fugues is that they're the equivalent of chasing one's tail eternally.

Of course, there really isn't a conundrum if we trot something NESS-like (and I don't mean LOCH) out from its resting place in the academy but, then, that's ... ssshhhhh ... metaphysics.

Or, it's just me being snarky, again.

Regards,
David

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