Statutory Proximate Cause

By Sperino, Sandra F. | Notre Dame Law Review, February 2013 | Go to article overview

Statutory Proximate Cause

Sperino, Sandra F., Notre Dame Law Review


Federal statutes often use general causal language to describe how an actor's conduct must be connected to harm for liability to attach. For example, a statute might state that harm must be "because" of certain conduct. (1) Federal courts have recently relied on this general causal language and other arguments to apply the common law idea of proximate cause to several federal statutes. (2)

While legal scholarship has explored the relationship between statutes and the common law generally, (3) it has not considered whether particular common law doctrines are especially problematic in the statutory context. This Article argues that using proximate cause in statutes raises many theoretical, doctrinal, and practical problems, and that, to date, courts have engaged in crude statutory interpretation that largely ignores these issues.

Court interpretation relies on demonstrably weak textual, intent, and purpose-based arguments to justify using proximate cause. Courts have not been sufficiently attentive to congressional direction, separation of powers, the relationship of modern statutes to the common law, and whether proximate cause is theoretically stable. I coin the term "statutory proximate cause" to highlight the special issues that arise when this common law principle is used in statutes. (4)

In statutory proximate cause cases courts assume that federal statutes are comparable to common law torts, such as negligence. While statutes are often torts in the broad sense that they are civil actions that do not arise from a contract, this definition is not helpful to understanding whether proximate cause should be applied to a particular statute.

The Article highlights how, at its core, proximate cause is a mechanism for limiting liability for conduct that statutes otherwise arguably prohibit. Courts assume that congressional intent related to proximate cause resides only in narrow causal language and ignore that Congress often expresses intent related to liability limits throughout statutory regimes. Indeed, in many instances Congress has provided a complex system of interlocking liability limits that strongly suggests that the space for proximate cause is not coterminous with the common law. More importantly, if a modern statute contains gaps regarding the extent of liability, there is no reason to generally assume those gaps should be filled by reference to the common law.

Proximate cause is a notoriously flexible and theoretically inconsistent concept. This Article argues that the term is often an empty vessel, into which the courts can pour multiple meanings. Courts often use the broad idea of proximate cause as a framework for discussion, selectively quoting available sources to reach a particular outcome. Proximate cause is so slippery and used in so many different iterations, that it does not provide potential litigants with enough guidance to judge the likely outcome of disputes either ex post or ex ante.

Anticipating increased future judicial forays into statutory proximate cause, this Article argues that courts must conduct more sophisticated inquiries into whether statutes incorporate common law proximate cause and demonstrates why courts should be reluctant to import it. It explains how courts can often use explicit statutory provisions or other doctrines to limit liability. It calls for courts to abolish interpretive canons that currently favor using proximate cause and sets forth an architecture for courts to use in those instances when proximate cause is needed.

Parts I and II provide the analytical groundwork for the Article by providing examples of statutes that raise statutory proximate cause problems and discussing proximate cause, separation of powers, and statutory interpretation. Part III demonstrates the faulty arguments courts have used when engaging in statutory proximate cause inquiries. Part IV describes issues that make proximate cause especially problematic with regard to statutes, arguing that many statutes do not map well onto the traditional torts in which proximate cause developed. …

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Statutory Proximate Cause


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