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Causation in European Tort Law

Causation in European Tort Law The disarming yet deceptively complex topic of causation in tort law has long fascinated scholars in North America. It also provides a formidable challenge that the “Common Core of European Private Law” publishing project has now confronted as part of its ambitious endeavor to identify and analyze the commonalities and divergences that characterize European private law.1 With a pair of promising young scholars (Marta Infantino and Eleni Zervogianni) at the helm, Causation in European Tort Law applies a unique analytical approach to comparative law that has become the trademark of the Common Core enterprise, and that seeks to provide what it claims are indispensable “roadmaps” for ongoing efforts by academics to harmonize European law.2 Rather than focusing on abstract legal concepts as the sole sources of legal doctrine (a so-called “top/down” approach to jurisprudence), the Common Core method proceeds from factual settings delineated in a set of hypothetical cases selected by the editors of each project and raising issues in a constituent area of private law.3 Teams of law professors from various European states then consider how the highest courts in their jurisdiction would resolve these cases. The enterprise styles itself as descriptive rather than normative, concerned not with what harmonized European law should look like, but rather what the law in a representative group of jurisdictions actually is, as applied by the courts. But the reporters’ work takes them much deeper, as they are instructed to go beyond mere case results and consider not only the “legal formants” of the decisions (code provisions, statutory law, judicial precedent, administrative regulations, and academic scholarship), but also their “meta-legal formants.” The latter include public policy; economic, social, and behavioral considerations; religious beliefs; the role of institutions, such as public and private insurance, which might perform functions similar to those served by the law; and process factors (such as the concern a particular result might immerse the judicial system in an overwhelming “flood of litigation”) that might in turn limit the judicial system’s capacity to resolve disputes fairly and expeditiously.4 (They might even include, at least in theory, “a judge’s individual background.”5) The editors then pull together the work of the reporters to determine the convergences and differences in the landscape under surveillance, and suggest what may have produced them.6 Limiting itself to the staples of private law (contracts, property, and torts), the Common Core project took off in 1993, under the leadership of Professors Mauro Bussani and Ugo Mattei, who continue to serve as general editors of Common Core publications. The group has held annual conferences, first in Trento and then in Torino, for the purpose of organizing, coordinating, and energizing individual projects, and reviewing foundational premises. To date, more than 300 academics have participated, and seventeen volumes have reached print.7 Causation in European Tort Law follows the now-familiar Common Core model. Infantino and Zervogianni begin by describing the scope of the project. They opt for a broad approach that encompasses not only purely factual, so-called “but/for” causation (a test that asks whether the same accident would have happened if the defendant had behaved reasonably), but also situations where cause-in-fact may exist, but the chain of causation extends beyond the expected scope or the immediate spatial or temporal setting of the wrongdoing, or is interrupted by intervening agencies that may or may not be considered to have broken the causal chain. The latter broad category falls conceptually within the somewhat misleading term “proximate cause,” which arguably has little to do with causation and relates more to a perceived practical need to limit the extent of a tortfeasor’s liability.8 The editors also provide a succinct yet carefully crafted explanation of “the inherent context dependency of reasoning about causation” (p. 5). Thus, the philosopher, the epidemiologist, the physician, and the ordinary person in the street each may look at causation through a different lens, depending on the purpose of the viewing. The editors do not, however, deal with any legal issues actually arising from “context dependency” in any of their hypotheticals, nor do they explain this omission.9 In their second chapter, Infantino and Zervogianni present a theoretical matrix that in general terms divides the approaches to causation taken by the jurisdictions under review into three categories. The first, which they call “overarching,” reflects an open-ended approach to tort liability that is generally favorable to plaintiffs. The second, which they deem “bounded,” is more rigid in application and tends to disfavor the shifting of the burden of loss from the accident victim to the causative agent. The third, which they refer to as “pragmatic,” tends to be flexible and more sensitive to policy concerns, and thus occupies a middle ground.10 The bulk of the book (nearly 450 pages) is comprised of the contributions of the reporters, who represent sixteen jurisdictions.11 They analyze seventeen hypothetical cases, covering factual causation issues, such as the “but for” test for actual cause (pp. 139–84), multiple concurrent causes (pp. 322–52), successive causes (pp. 185–217), the value of a chance (pp. 558–84), and market-share liability (pp. 272–97). In the field of proximate causation, they touch on liability for nervous shock (pp. 515–34), suicide (pp. 442–66), purely economic harm (pp. 423–41), injury incurred by extraordinarily vulnerable accident victims (pp. 492–514), liability for negligently enabling a third person to harm the plaintiff (pp. 535–57), and damage caused by both a defendant and some intervening agency (pp. 380–401). After each set of reporter submissions, Infantino and Zervogianni offer insightful comparative commentary that highlights the similarities and differences characterizing the various responses to the hypothetic case under review. The project’s policy of reprinting the country reports in toto and without substantive editing has advantages as well as disadvantages. On the negative side, the reports contain what might charitably be termed an overabundance of material, not all of which seems relevant to the law of causation in tort. On the positive side, the work of the reporters presents opportunities for future studies, such as, for example, an overdue rethinking of the work that “meta-legal” formants do in establishing liability under European tort law. For a North American academic, the hypothetical questions bear a resemblance to traditional law-school examination questions.12 Answers drafted by the law professors participating in the causation project occasionally turn out to be as freewheeling and far reaching as those often submitted by student exam takers.13 Thoughtful pruning would have made some of the country reports much more readable. However, this would also have placed a tremendous burden on those involved in the editorial process.14 On the plus side, the reports provide raw material for further study of the concept of the meta-legal formant. The inclusion of non-legal factors that have influenced (or might influence) judicial decisions involving private law is a distinguishing feature of the Common Core “cartographical” enterprise. Each country reporter received instructions to include a separate section describing how meta-legal formants did (or could) affect case decisions arising from the hypothetical fact patterns. The book includes reporters’ judgments that in some of the cases their jurisdictions reached (or could reach) results on the basis of public policy concerns, such as deterrence of careless conduct (p. 485) and a desire to decrease economic pressures on banks (p. 424); the importance of religious values (pp. 171, 180–81); process concerns (the difficulty of proving damages through litigation) (p. 425); limitations on funds available to a public defendant responsible for the negligence of a police department and potentially liable for tort damages (p. 540); relative institutional competence (the superior ability of legislatures to set distributive policies) (p. 283); and the impacts of the availability of insurance on liability decisions (pp. 342, 381, 397, 402–03, 407, 416–17, 420). At the same time, there may be some significance in the fact that the great majority of the country reports make no mention of meta-legal formants as influencing the outcome of the hypothetical lawsuits. This could reflect the reporters’ judgments that no meta-legal formants were (or could have been) at play. It could also, however, reflect reportorial unfamiliarity or lack of comfort with the concept. What suggests this is the fact that in a disquietingly large number of instances reporters discussed as meta-legal formants matters that have nothing to do with meta-legality.15 The editors situate the responses to the hypotheticals within their tripartite model and point to the type and extent of the loss suffered by plaintiffs, the culpability of defendants, the functions attributed to tort law, and various policy factors as significantly affecting determinations of causation (p. 662). They conclude that “differences across European jurisdictions lie not so much in the set of rules applicable to solving causation problems, but rather in the underlying language, notions and ways of framing these problems—that is, in the traditional reservoir of methods and technicalities embodied in each jurisdiction’s legal culture” (p. 666). There is much of great value in the book, most especially in the admirable contributions of the editors, who bring fresh insights and bracing clarity to a comparative analysis of a vexing area of tort law. Footnotes 1. For descriptions of the undertaking (which was originally referred to as the Trento Project), see Mauro Bussani & Ugo Mattei, The Common Core Approach to European Private Law, 3 Colum. J. Eur. L. 339 (1997); Mauro Bussani, Current Trends in European Comparative Law: The Common Core Approach, 21 Hastings Int’l & Comp. L. Rev. 785 (1998); Mauro Bussani et al., The Common Core Sound: Short Notes on Themes, Harmonies and Disharmonies of European Tort Law, 20 King’s L.J. 239 (2009). See alsoThe Common Core of European Private Law (Mauro Bussani & Ugo Mattei eds., 2003) (a collection of keynote addresses delivered at the annual Common Core conference). For a review of the project after its first six years, see Mathias Reimann, Of Products and Process: The First Six Trento Volumes and Their Making, inOpening Up European Law 83 (Mauro Bussani & Ugo Mattei eds., 2007). For a review of the project after its first decade, see David Gerber, The Common Core of European Private Law: The Project and Its Books, 52 Am. J. Comp. L. 995 (2004). The project’s website is located at Common Core, http://www.common-core.org. 2. On the Common Core project’s metaphorical self-image as “legal cartography,” see Bussani & Mattei, supra note 1, at 340–41. For criticism of the metaphor as overly ambitious, see Reimann, supra note 1, at 92–93. 3. In this respect, the methodology is based on the pioneering work of Professor Rudoph Schlesinger, who developed a fact-sensitive, “bottom/up” approach to comparative law in the course of a project he undertook at the Cornell Law School. On the Common Core project’s debt to Professor Schlesinger, see Bussani, supra note 1, at 789–90;see also Ulrich Drobnig, A Memorial Address for Rudolf Schlesinger, inThe Common Core of European Private Law, supra note 1, at 29–33. 4. The concepts of legal and meta-legal formants is based on the work of Professor Rodolfo Sacco. See Rodolfo Sacco, Legal Formants: A Dynamic Approach to Comparative Law, 39 Am. J. Comp. L. 1 (1991). On the Common Core project’s debt to Professor Sacco, see Bussani, supra note 1, at 791–93. 5. Bussani, supra note 1, at 791. 6 Each volume also contains, as an added feature, supplementary essays that offer, inter alia, descriptions of related developments in U.S. law or interdisciplinary perspectives on the topic under consideration. See, e.g., Anthony Sebok, Actual Causation in the Second and Third Restatements: Or, the Expulsion of the Substantial Factor Test, inCausation in European Tort Law 60 (Marta Infantino & Eleni Zervogianni eds., 2017); Ingeborg Puppe & Richard W. Wright, Causation in the Law: Philosophy, Doctrine and Practice, inCausation in European Tort Law, supra, at 17. 7 For previous Common Core publications in the area of tort law, see Pure Economic Loss in Europe (Mauro Bussani & Vernon Palmer eds., 2011); Personality Rights in European Tort Law (Gert Bruggemeier et al. eds., 2010); The Boundaries of Strict Liability in European Tort Law (Franz Werro & Vernon Palmer eds., 2004). The obligation of full disclosure requires the author of this Review to note that for a number of years he served as co-editor of an uncompleted Common Core study of European product liability law. 8 On the difference between cause-in-fact and proximate cause, see Dan B. Dobbs, The Law of Torts § 167 (2000); Joseph A. Page, Torts: Proximate Cause 5–7 (2003). 9 In the United States, however, the issue has produced legal difficulties in certain kinds of tort cases, such as those that require findings of cause-in-fact for the purpose of deciding whether to compensate a plaintiff for harm resulting from an allegedly negligently inflicted disease, but the only way to prove that the disease actually did cause harm to the plaintiff is from expert testimony by a physician whose mindset views causation only as a determinant in the diagnosis or treatment of a disease, and not as a prerequisite of legal liability. See Wex Malone, Ruminations on Cause-in-Fact, 9 Stan. L. Rev. 60, 85–88 (1956); Ben Small, Gaffing at a Thing Called Cause: Medico-Legal Conflicts in the Concept of Causation, 31 Tex. L. Rev. 631 (1953). 10. The tripartite matrix used here is similar to the groupings used in a prior Common Core tort project, except that the latter are given the shirt-sleeve denominations of liberal, conservative, and pragmatic. SeePure Economic Loss in Europe, supra note 7, at 123–59. The countries included in both projects fall into what are essentially the same categories. 11 Jurisdictions included in the survey are Austria, Bulgaria, the Czech Republic, Denmark, England and Wales, France, Germany, Greece, Ireland, Italy, Lithuania, the Netherlands, Poland, Portugal, Spain, and Sweden (p. xix). The presence of three common law jurisdictions (Ireland, England, and Wales) in a sea of civil law systems, and four countries until relatively recently under communist rule lends a distinctive richness to the overall presentation. 12 Several of the questions derive directly from actual decisions rendered by U.S. courts and included in U.S. law-teaching materials. Case 3 is Dillon v. Twin State Gas & Elec., Co., 85 N.H. 449, 163 Atl. 111 (1932), discussed inCases and Materials on Torts 453 (Richard A. Epstein & Catherine Sharkey eds., 10th ed. 2012). Case 5 draws its inspiration from Sindell v. Abbott Labs., 26 Cal. 3d 588, 607 P.2d 924 (1980), discussed in Anita Bernstein, Hymowitz v. Eli Lilly & Co., inTorts Stories ch. 6 (Robert L. Rabin & Stephen D. Sugarman eds., 2003). Case 11 is a slight variant of the facts in Ventricelli v. Kinney Sys. Rent A Car, Inc., 45 N.Y.2d 950, 383 N.E.2d 1149, modified, 46 N.Y.2d 770, 386 N.E.2d 263 (1978) (an edited version of which appears in Torts and Compensation: Personal Accountability and Social Responsibility for Injury 233 (Dan B. Dobbs et al. eds., 7th ed. 2013)). This enables U.S. law professors who wish to inject a dollop of comparative law into their courses to call to students’ attention how European courts have ruled, or might rule, on similar facts. 13 The country reports invite a response similar to one given by a ten-year-old girl to a book club that sent her a volume about penguins. She wrote on an enclosed reply card soliciting her opinion of the gift: “This book gives me more information about penguins than I care to have.” Boing Boing (Jan. 2, 2012), https://boingboing.net/2012/01/02/more-information-about-pengu.html. The distinguished American diplomat Hugh S. Gibson, who was known for his whimsical sense of humor, called this response “the finest piece of literary criticism he had ever read.” Id. 14 It also might have helped if the editors had cross-referenced instances where a hypothetical case raised an issue covered in a prior Common Core volume. Liability for pure economic loss is a part of Cases 4 and 11, and is covered extensively in Pure Economic Loss in Europe, supra note 7. 15 See, e.g., Causation in European Tort Law, supra note 6, at 219, 392, 479 (case law), 279, 307, 460, 569 (academic literature), 261 (a statutory provision). © The Author(s) [2018]. Published by Oxford University Press on behalf of the American Society of Comparative Law. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png American Journal of Comparative Law Oxford University Press

Causation in European Tort Law

American Journal of Comparative Law , Volume 66 (3) – Nov 22, 2018

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Publisher
Oxford University Press
Copyright
© The Author(s) [2018]. Published by Oxford University Press on behalf of the American Society of Comparative Law. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com.
ISSN
0002-919X
eISSN
2326-9197
DOI
10.1093/ajcl/avy035
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Abstract

The disarming yet deceptively complex topic of causation in tort law has long fascinated scholars in North America. It also provides a formidable challenge that the “Common Core of European Private Law” publishing project has now confronted as part of its ambitious endeavor to identify and analyze the commonalities and divergences that characterize European private law.1 With a pair of promising young scholars (Marta Infantino and Eleni Zervogianni) at the helm, Causation in European Tort Law applies a unique analytical approach to comparative law that has become the trademark of the Common Core enterprise, and that seeks to provide what it claims are indispensable “roadmaps” for ongoing efforts by academics to harmonize European law.2 Rather than focusing on abstract legal concepts as the sole sources of legal doctrine (a so-called “top/down” approach to jurisprudence), the Common Core method proceeds from factual settings delineated in a set of hypothetical cases selected by the editors of each project and raising issues in a constituent area of private law.3 Teams of law professors from various European states then consider how the highest courts in their jurisdiction would resolve these cases. The enterprise styles itself as descriptive rather than normative, concerned not with what harmonized European law should look like, but rather what the law in a representative group of jurisdictions actually is, as applied by the courts. But the reporters’ work takes them much deeper, as they are instructed to go beyond mere case results and consider not only the “legal formants” of the decisions (code provisions, statutory law, judicial precedent, administrative regulations, and academic scholarship), but also their “meta-legal formants.” The latter include public policy; economic, social, and behavioral considerations; religious beliefs; the role of institutions, such as public and private insurance, which might perform functions similar to those served by the law; and process factors (such as the concern a particular result might immerse the judicial system in an overwhelming “flood of litigation”) that might in turn limit the judicial system’s capacity to resolve disputes fairly and expeditiously.4 (They might even include, at least in theory, “a judge’s individual background.”5) The editors then pull together the work of the reporters to determine the convergences and differences in the landscape under surveillance, and suggest what may have produced them.6 Limiting itself to the staples of private law (contracts, property, and torts), the Common Core project took off in 1993, under the leadership of Professors Mauro Bussani and Ugo Mattei, who continue to serve as general editors of Common Core publications. The group has held annual conferences, first in Trento and then in Torino, for the purpose of organizing, coordinating, and energizing individual projects, and reviewing foundational premises. To date, more than 300 academics have participated, and seventeen volumes have reached print.7 Causation in European Tort Law follows the now-familiar Common Core model. Infantino and Zervogianni begin by describing the scope of the project. They opt for a broad approach that encompasses not only purely factual, so-called “but/for” causation (a test that asks whether the same accident would have happened if the defendant had behaved reasonably), but also situations where cause-in-fact may exist, but the chain of causation extends beyond the expected scope or the immediate spatial or temporal setting of the wrongdoing, or is interrupted by intervening agencies that may or may not be considered to have broken the causal chain. The latter broad category falls conceptually within the somewhat misleading term “proximate cause,” which arguably has little to do with causation and relates more to a perceived practical need to limit the extent of a tortfeasor’s liability.8 The editors also provide a succinct yet carefully crafted explanation of “the inherent context dependency of reasoning about causation” (p. 5). Thus, the philosopher, the epidemiologist, the physician, and the ordinary person in the street each may look at causation through a different lens, depending on the purpose of the viewing. The editors do not, however, deal with any legal issues actually arising from “context dependency” in any of their hypotheticals, nor do they explain this omission.9 In their second chapter, Infantino and Zervogianni present a theoretical matrix that in general terms divides the approaches to causation taken by the jurisdictions under review into three categories. The first, which they call “overarching,” reflects an open-ended approach to tort liability that is generally favorable to plaintiffs. The second, which they deem “bounded,” is more rigid in application and tends to disfavor the shifting of the burden of loss from the accident victim to the causative agent. The third, which they refer to as “pragmatic,” tends to be flexible and more sensitive to policy concerns, and thus occupies a middle ground.10 The bulk of the book (nearly 450 pages) is comprised of the contributions of the reporters, who represent sixteen jurisdictions.11 They analyze seventeen hypothetical cases, covering factual causation issues, such as the “but for” test for actual cause (pp. 139–84), multiple concurrent causes (pp. 322–52), successive causes (pp. 185–217), the value of a chance (pp. 558–84), and market-share liability (pp. 272–97). In the field of proximate causation, they touch on liability for nervous shock (pp. 515–34), suicide (pp. 442–66), purely economic harm (pp. 423–41), injury incurred by extraordinarily vulnerable accident victims (pp. 492–514), liability for negligently enabling a third person to harm the plaintiff (pp. 535–57), and damage caused by both a defendant and some intervening agency (pp. 380–401). After each set of reporter submissions, Infantino and Zervogianni offer insightful comparative commentary that highlights the similarities and differences characterizing the various responses to the hypothetic case under review. The project’s policy of reprinting the country reports in toto and without substantive editing has advantages as well as disadvantages. On the negative side, the reports contain what might charitably be termed an overabundance of material, not all of which seems relevant to the law of causation in tort. On the positive side, the work of the reporters presents opportunities for future studies, such as, for example, an overdue rethinking of the work that “meta-legal” formants do in establishing liability under European tort law. For a North American academic, the hypothetical questions bear a resemblance to traditional law-school examination questions.12 Answers drafted by the law professors participating in the causation project occasionally turn out to be as freewheeling and far reaching as those often submitted by student exam takers.13 Thoughtful pruning would have made some of the country reports much more readable. However, this would also have placed a tremendous burden on those involved in the editorial process.14 On the plus side, the reports provide raw material for further study of the concept of the meta-legal formant. The inclusion of non-legal factors that have influenced (or might influence) judicial decisions involving private law is a distinguishing feature of the Common Core “cartographical” enterprise. Each country reporter received instructions to include a separate section describing how meta-legal formants did (or could) affect case decisions arising from the hypothetical fact patterns. The book includes reporters’ judgments that in some of the cases their jurisdictions reached (or could reach) results on the basis of public policy concerns, such as deterrence of careless conduct (p. 485) and a desire to decrease economic pressures on banks (p. 424); the importance of religious values (pp. 171, 180–81); process concerns (the difficulty of proving damages through litigation) (p. 425); limitations on funds available to a public defendant responsible for the negligence of a police department and potentially liable for tort damages (p. 540); relative institutional competence (the superior ability of legislatures to set distributive policies) (p. 283); and the impacts of the availability of insurance on liability decisions (pp. 342, 381, 397, 402–03, 407, 416–17, 420). At the same time, there may be some significance in the fact that the great majority of the country reports make no mention of meta-legal formants as influencing the outcome of the hypothetical lawsuits. This could reflect the reporters’ judgments that no meta-legal formants were (or could have been) at play. It could also, however, reflect reportorial unfamiliarity or lack of comfort with the concept. What suggests this is the fact that in a disquietingly large number of instances reporters discussed as meta-legal formants matters that have nothing to do with meta-legality.15 The editors situate the responses to the hypotheticals within their tripartite model and point to the type and extent of the loss suffered by plaintiffs, the culpability of defendants, the functions attributed to tort law, and various policy factors as significantly affecting determinations of causation (p. 662). They conclude that “differences across European jurisdictions lie not so much in the set of rules applicable to solving causation problems, but rather in the underlying language, notions and ways of framing these problems—that is, in the traditional reservoir of methods and technicalities embodied in each jurisdiction’s legal culture” (p. 666). There is much of great value in the book, most especially in the admirable contributions of the editors, who bring fresh insights and bracing clarity to a comparative analysis of a vexing area of tort law. Footnotes 1. For descriptions of the undertaking (which was originally referred to as the Trento Project), see Mauro Bussani & Ugo Mattei, The Common Core Approach to European Private Law, 3 Colum. J. Eur. L. 339 (1997); Mauro Bussani, Current Trends in European Comparative Law: The Common Core Approach, 21 Hastings Int’l & Comp. L. Rev. 785 (1998); Mauro Bussani et al., The Common Core Sound: Short Notes on Themes, Harmonies and Disharmonies of European Tort Law, 20 King’s L.J. 239 (2009). See alsoThe Common Core of European Private Law (Mauro Bussani & Ugo Mattei eds., 2003) (a collection of keynote addresses delivered at the annual Common Core conference). For a review of the project after its first six years, see Mathias Reimann, Of Products and Process: The First Six Trento Volumes and Their Making, inOpening Up European Law 83 (Mauro Bussani & Ugo Mattei eds., 2007). For a review of the project after its first decade, see David Gerber, The Common Core of European Private Law: The Project and Its Books, 52 Am. J. Comp. L. 995 (2004). The project’s website is located at Common Core, http://www.common-core.org. 2. On the Common Core project’s metaphorical self-image as “legal cartography,” see Bussani & Mattei, supra note 1, at 340–41. For criticism of the metaphor as overly ambitious, see Reimann, supra note 1, at 92–93. 3. In this respect, the methodology is based on the pioneering work of Professor Rudoph Schlesinger, who developed a fact-sensitive, “bottom/up” approach to comparative law in the course of a project he undertook at the Cornell Law School. On the Common Core project’s debt to Professor Schlesinger, see Bussani, supra note 1, at 789–90;see also Ulrich Drobnig, A Memorial Address for Rudolf Schlesinger, inThe Common Core of European Private Law, supra note 1, at 29–33. 4. The concepts of legal and meta-legal formants is based on the work of Professor Rodolfo Sacco. See Rodolfo Sacco, Legal Formants: A Dynamic Approach to Comparative Law, 39 Am. J. Comp. L. 1 (1991). On the Common Core project’s debt to Professor Sacco, see Bussani, supra note 1, at 791–93. 5. Bussani, supra note 1, at 791. 6 Each volume also contains, as an added feature, supplementary essays that offer, inter alia, descriptions of related developments in U.S. law or interdisciplinary perspectives on the topic under consideration. See, e.g., Anthony Sebok, Actual Causation in the Second and Third Restatements: Or, the Expulsion of the Substantial Factor Test, inCausation in European Tort Law 60 (Marta Infantino & Eleni Zervogianni eds., 2017); Ingeborg Puppe & Richard W. Wright, Causation in the Law: Philosophy, Doctrine and Practice, inCausation in European Tort Law, supra, at 17. 7 For previous Common Core publications in the area of tort law, see Pure Economic Loss in Europe (Mauro Bussani & Vernon Palmer eds., 2011); Personality Rights in European Tort Law (Gert Bruggemeier et al. eds., 2010); The Boundaries of Strict Liability in European Tort Law (Franz Werro & Vernon Palmer eds., 2004). The obligation of full disclosure requires the author of this Review to note that for a number of years he served as co-editor of an uncompleted Common Core study of European product liability law. 8 On the difference between cause-in-fact and proximate cause, see Dan B. Dobbs, The Law of Torts § 167 (2000); Joseph A. Page, Torts: Proximate Cause 5–7 (2003). 9 In the United States, however, the issue has produced legal difficulties in certain kinds of tort cases, such as those that require findings of cause-in-fact for the purpose of deciding whether to compensate a plaintiff for harm resulting from an allegedly negligently inflicted disease, but the only way to prove that the disease actually did cause harm to the plaintiff is from expert testimony by a physician whose mindset views causation only as a determinant in the diagnosis or treatment of a disease, and not as a prerequisite of legal liability. See Wex Malone, Ruminations on Cause-in-Fact, 9 Stan. L. Rev. 60, 85–88 (1956); Ben Small, Gaffing at a Thing Called Cause: Medico-Legal Conflicts in the Concept of Causation, 31 Tex. L. Rev. 631 (1953). 10. The tripartite matrix used here is similar to the groupings used in a prior Common Core tort project, except that the latter are given the shirt-sleeve denominations of liberal, conservative, and pragmatic. SeePure Economic Loss in Europe, supra note 7, at 123–59. The countries included in both projects fall into what are essentially the same categories. 11 Jurisdictions included in the survey are Austria, Bulgaria, the Czech Republic, Denmark, England and Wales, France, Germany, Greece, Ireland, Italy, Lithuania, the Netherlands, Poland, Portugal, Spain, and Sweden (p. xix). The presence of three common law jurisdictions (Ireland, England, and Wales) in a sea of civil law systems, and four countries until relatively recently under communist rule lends a distinctive richness to the overall presentation. 12 Several of the questions derive directly from actual decisions rendered by U.S. courts and included in U.S. law-teaching materials. Case 3 is Dillon v. Twin State Gas & Elec., Co., 85 N.H. 449, 163 Atl. 111 (1932), discussed inCases and Materials on Torts 453 (Richard A. Epstein & Catherine Sharkey eds., 10th ed. 2012). Case 5 draws its inspiration from Sindell v. Abbott Labs., 26 Cal. 3d 588, 607 P.2d 924 (1980), discussed in Anita Bernstein, Hymowitz v. Eli Lilly & Co., inTorts Stories ch. 6 (Robert L. Rabin & Stephen D. Sugarman eds., 2003). Case 11 is a slight variant of the facts in Ventricelli v. Kinney Sys. Rent A Car, Inc., 45 N.Y.2d 950, 383 N.E.2d 1149, modified, 46 N.Y.2d 770, 386 N.E.2d 263 (1978) (an edited version of which appears in Torts and Compensation: Personal Accountability and Social Responsibility for Injury 233 (Dan B. Dobbs et al. eds., 7th ed. 2013)). This enables U.S. law professors who wish to inject a dollop of comparative law into their courses to call to students’ attention how European courts have ruled, or might rule, on similar facts. 13 The country reports invite a response similar to one given by a ten-year-old girl to a book club that sent her a volume about penguins. She wrote on an enclosed reply card soliciting her opinion of the gift: “This book gives me more information about penguins than I care to have.” Boing Boing (Jan. 2, 2012), https://boingboing.net/2012/01/02/more-information-about-pengu.html. The distinguished American diplomat Hugh S. Gibson, who was known for his whimsical sense of humor, called this response “the finest piece of literary criticism he had ever read.” Id. 14 It also might have helped if the editors had cross-referenced instances where a hypothetical case raised an issue covered in a prior Common Core volume. Liability for pure economic loss is a part of Cases 4 and 11, and is covered extensively in Pure Economic Loss in Europe, supra note 7. 15 See, e.g., Causation in European Tort Law, supra note 6, at 219, 392, 479 (case law), 279, 307, 460, 569 (academic literature), 261 (a statutory provision). © The Author(s) [2018]. Published by Oxford University Press on behalf of the American Society of Comparative Law. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model)

Journal

American Journal of Comparative LawOxford University Press

Published: Nov 22, 2018

There are no references for this article.