“However, I am disappointed to learn that Rob describes those (including me) who oppose his restrictive and implausible "but-for" definition of causation as having supposedly adopted a syllogism in which the major premise is that proof of causation is sufficient for legal responsibility. “

 

That is, very importantly, *not* the syllogism I accused writers (I named nobody) of adopting. My claim is, instead, that writers are guilty of assuming that A causing B is *necessary* for A to be responsible for B. As a result they have then reasoned backwards from all cases where A is one of those responsible for B and concluded that they must all therefore be cases where A caused B. This has led them to adopt definitions of causation that are not plausible, and have no supporters outside of the legal context. That assumption runs all the way through your rely.

 

I am of course well aware that nobody at all has argued that A causing B is sufficient for A to be responsible for B. Indeed my criticism of the language of “scope of liability” (which treats liability as synonymous with responsibility, which it is not) is premised upon that being true.

 

“Rob now acknowledges that (non-but-for) "contribution" is sufficient to satisfy the cause-in-fact requirement for legal responsibility.”

 

My whole point is that contributing to something is not to “cause it in fact”. Each voter does not cause the election of the successful candidate, although they each contribute, and each is to that extent responsible.

 

Sometimes the law treats contribution as sufficient for responsibility (for example, when I seek to rescind a contract for fraudulent misrepresentation I don’t need to show that the misrepresentation caused me to enter into the deal) but sometimes it isn’t.

 

“This unsupported assumption is contradicted by usual reactions to overdetermined causation situations. If there are two independently sufficient fires, shots, doses of poison, etc., how many other than Rob would deny that each fire, shot, dose of poison, etc., "caused" or was "a cause" of the consequent injury, even if they would not describe it as "the cause"? If one fire, shot, dose of poison preempted the other fire, shot, dose, how many would deny (as required by the but-for test), that the preemptive fire, shot, dose "caused" the injury, and indeed was "the cause" as well as "a cause"?”

 

I don’t find the distinction between “a cause” and “the cause” helpful. Nothing alone can cause anything other than itself. X+0=X. A rock in space interacting with nothing else leaves you with a rock in space. So, there Is no such thing as *the* cause (singular, alone) of anything else. All causes are therefore “a cause” (ie a cause in combination with something other than itself).

 

“Rob attempts to make his point by use of a voting example involving thousands of individually unnecessary and insufficient votes. (I remain puzzled by his mathematics. He states that the winner had 25,000 votes and the closest competitor had 10,000 votes, but that the required majority supposedly was only 15,000 votes, later changed to 10,001 votes.) But was not each vote nevertheless "a cause" of the winner's election? If there had been only three voters, with a majority required for election, and two or three voted for the winner, would Rob continue to insist that none of them "caused" or was "a cause of" the winner's election? How many of you would agree?”

 

Yes, I do deny that, in my example, each vote for the successful candidate causes the winner to win. I think it an abuse of language to say that each does. If we cut it down to 3 votes, with a majority required for an election, if all three vote for the winner, then we also cannot say of any one that they caused the result, as they individually make no difference. Each contributed. Each is responsible. None individually caused. Any set of two you choose (or all three together) caused but none individually. If, by contrast, two of the three voted for the result, and one against, then yes each of the two alone caused the result because each made a difference.

 

Rob attempts to avoid the counterargument that, if none of them individually were a cause, then the result is a non-caused miracle. He follows Mackie and other defenders of the but-for test in attempting to apply the but-for test to aggregated individual contributions. However, as I and others have often previously noted, this argument is deficient for several reasons. First, as a purely factual matter, we are seeking to assess the individual's causal contribution. Second, individual legal responsibility is based on individual causal contribution. Third, employing the aggregate but-for test opens the door to allowing preempted and even totally irrelevant conditions to be included as causes.

 

No John Mackie, in The Cement of the Universe: A Study of Causation is right. He is talking about the meaning of causation, not responsibility, hence the title of the book. What the law is trying to do is assess each individual’s responsibility. My point (again) is that you can be one of those responsible for an outcome even if you merely contributed to it, but didn’t cause it. The law takes the same approach. Pointing to examples of the law rightly doing that is not, therefore, a refutation of Mackie. I dealt with pre-emption in the lecture I linked to, but generally I think Mackie is right on that too.

 

In any event, Rob's (and the USSC's) assumption that ordinary people only recognize but-for conditions as "causes" is refuted by a recent empirical study conducted by James A. Macleod, Ordinary Causation: A Study in Experimental Statutory Interpretation, 94 Indiana Law Journal 957 (2019), https://www.repository.law.indiana.edu/ilj/vol94/iss3/4. Each survey participant was presented with a vignette based on an actual Supreme Court case that did not include any “necessity” or “sufficiency” language but in which the described “focal” condition at issue was either (1) necessary and sufficient, (2) necessary and insufficient, (3) unnecessary and sufficient, or (4) unnecessary and insufficient but nevertheless contributed (as a NESS condition). “Necessary” meant strong necessity. “Sufficient” meant independent strong sufficiency. They were asked to answer whether the applicable statutory standard (“caused by” or “resulted from”) and each of several common alternative standards (“but for” phrasing, “substantial factor”, “contributing factor”, and “sole cause”) were satisfied. The study did not include preemptive causation situations.

 

A nice illustration of the confusion I am referring to. Of course in the examples used the law is (often) right in treating those who merely contributed as responsible, and the public agree when asked. The error is to reason back from that and think it tells you something about what causation means.

 

Rob