Causation and the Law: Preemption, Lawful Sufficiency, and Causal Sufficiency
Fumerton, Richard, Kress, Ken, Law and Contemporary Problems
RICHARD FUMERTON [*]
KEN KRESS [**]
Richard Wright's attempt to distinguish actual causation from proximate causation, and to analyze actual causation--particularly in tort law--has been the most successful and influential work in this area in recent years.  Indeed, most scholars think that Wright's analysis of cause as a necessary element in a set of conditions ("NESS") sufficient for an effect  is an improvement upon H.L.A. Hart and Tony Honore's classic discussion.  In the decade and a half since Wright put forth his theory of causation, there have been a number of attempts to criticize him, but none has undermined the central thrust of his theory.  While Wright's view has received deserved praise, his analysis of a NESS requires clarification. Once clarified, however, it is vulnerable to certain fundamental objections.
Wright's stated aim is to capture a nonnormative concept of causation. Therefore, this article begins by briefly describing the normative/nonnormative distinction, and how one might invoke this distinction to locate a nonnormative dimension of actual causation (as opposed to proximate causation). After briefly introducing Wright's concept of a NESS for an effect (the concept in terms of which he wants to understand actual causation), the article notes ambiguities in the critical concepts of necessity and sufficiency that he deploys. The article distinguishes a number of different modal concepts and suggests the most plausible interpretation of Wright's use of these concepts.
With a more precise understanding of Wright's view in hand, we turn to the question of whether his analysis more effectively handles difficult cases of causation--including multiple causes, preemption, omissions and the like--than does the nearly universal "but for" test deployed by courts as a test of actual causation. While Wright's test has certain advantages over the "but for" test, the article argues that it faces difficult problems of its own. First, it is not clear that Wright can accommodate indeterministic causation. Nor, contrary to what he claims, can his account adequately explain all cases of overdetermination involving preemption. The most obvious revision of Wright's theory to handle cases of preemption (replacing a concept of lawful sufficiency with one of causal sufficiency--a revision with which Wright has indicated sympathy) risks vicious conceptual circularity. It hardly seems likely that one will gain insight into the nature of causation through an account that relies on an understanding of that special kind of sufficiency involved in causation.
CAUSATION AND NORMATIVITY
Legal theorists have tried to distinguish nonnormative issues from those that include a normative element.  Obvious candidates for nonnormative issues are questions concerning causation. For example, if you are suing me for damages in tort, one of the things you must establish for your suit to be successful is that some action I took caused the relevant damages.  This part of your burden seems straightforwardly factual in a way in which, say, your burden of showing that I acted negligently (or tortiously) may not be. It seems plausible on its face to suppose that negligence is a normative notion. When people act negligently, they do not exercise due care. They do not take precautions they ought to take in the face of various possible harms. The italicized terms are paradigm value terms that indicate our subject has taken a normative turn.
Before proceeding, it might be worth elaborating on this distinction between nonnormative and normative questions. Some people describe nonnormative issues as factual and normative issues as nonfactual. Many ethical philosophers resist this way of presenting the contrast. These philosophers argue that normative, ethical judgments are factual judgments. Some of these descriptivists are subjectivists, but others would claim that ethical statements make objective assertions. …