Document Type

Working Paper

Publication Date

8-26-2017

Abstract

The language of counterfactual causation employed from the bench obscures the analytical vacuity of the "but for" test This paper takes issue with the consistent recourse to "common sense" as a methodological tool for determining the deeply complex issue of causality Despite manifestly empty gestures to eg robust pragmatism the current approach imposes the dominant values of the judiciary in a manner that perpetuates the current distribution of power Whatever the merits of counterfactual inquiry its legal iteration requires judges to construct a hypothetical narrative about "how things generally happen" This in turn impels a uniquely comprehensive brand of judicial creativity The results are productively examined in the context of medical malpractice where the phenomenological lens foregrounds the connection between meaningless doctrine and the protection of the medical elite

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