Proximate Cause Explained: An Essay in Experimental Jurisprudence

Knobe, Joshua and Shapiro, Scott J.
University of Chicago Law Review,
Forthcoming.
https://ssrn.com/abstract=3544982

Abstract

Among the oldest debates in American jurisprudence concerns the concept of “proximate cause.” According to so-called formalists, the legal concept of “proximate cause” is the same as the ordinary concept of “cause.” The legal question of whether a cause is proximate for the purposes of establishing tort liability, therefore, is an objective matter about the external world determinable by familiar descriptive inquiry. By contrast, legal realists think that issues of proximate causation are disguised normative questions about responsibility. As the realists William Prosser and Robert Keeton put it, “Proximate cause is better called ‘responsible cause’.”

Recent work in cognitive science has afforded us new insights into the way people make causal judgments that were unavailable at the time of the original debate between formalists and realists. We now have access to the results of systematic experimental studies that examine the way people ordinarily think about causation and morality. This work opens up the possibility of a very different approach to understanding the role of causation in the law — one which combines the attractive features of both formalism and realism without accepting their implausible consequences.

In addition to providing a model for interpreting the case law of proximate cause, this paper also exemplifies a new way of doing legal theory — a method we call “experimental jurisprudence.” Experimental jurisprudence is the study of jurisprudential questions using empirical methods. Jurisprudential disputes about proximate cause are especially ripe for empirical analysis because the debate revolves around whether the legal concept of proximate cause is the same as the ordinary concept of causation. Interrogating the ordinary concept of causation, therefore, should shed light on this question.

The paper can be downloaded here.

How to Know Whether to Believe a Health Study

By Austin Frakt
The New York Times - The Upshot
Originally posted on August 17, 2015

Here is an excerpt:

Unfortunately, there’s no substitute for careful examination of studies by experts. Yet, if you’re not an expert, you can do a few simple things to become a more savvy consumer of research. First, if the study examined the effects of a therapy only on animals or in a test tube, we have very limited insight into how it will actually work in humans. You should take any claims about effects on people with more than a grain of salt. Next, for studies involving humans, ask yourself: What method did the researchers use? How similar am I to the people it examined?

Sure, there are many other important questions to ask about a study — for instance, did it examine harms as well as benefits? But just assessing the basis for what researchers call “causal claims” — X leads to or causes Y — and how similar you are to study subjects will go a long way toward unlocking its credibility and relevance to you.

The entire article is here.

The Ethics of Virtual Rape

By John Danaher
Philosophical Disquisitions
Originally published April 26, 2014

The notorious 1982 video game Custer’s Revenge requires the player to direct their crudely pixellated character (General Custer) to avoid attacks so that he can rape a Native American woman who is tied to a stake. The game, unsurprisingly, generated a great deal of controversy and criticism at the time of its release. Since then, video games with similarly problematic content, but far more realistic imagery, have been released. For example, in 2006 the Japanese company Illusion released the game RapeLay, in which the player stalks and rapes a mother and her two daughters.

The question I want to explore in this post is the morality of such representations. One could, of course, argue that they are extrinsically wrong, i.e. that they give rise to behaviour that is morally problematic and so should limited or prohibited for that reason. This is like the typical “violent video games cause real violence”-claim, and I suspect it would be equally hard to prove in practice. The more interesting question is whether there is something intrinsically wrong with playing (and perhaps enjoying) such video games. Prima facie, the answer would seem to be “no”, since no one is actually harmed or wronged in the virtual act. But maybe there is more to it than this?

The entire article is here.