The Causal Connection in Mass Exposure Cases: A "Public Law" Vision of the Tort System

The Limits of Probabilistic Causality in Law

“…In "the two hunters", for example, if we found that only one bullet reached the body, and we knew from which hunter it came, both hunters would seem to have still ex-ante increased the marginal probability of damage by more than 50%, but only one of them would be the more-likely-than-not cause of damage. 1986, Rosenberg, 1984;Levmore, 1990), and with the doctrine of foreseeability, which does not address causal questions. 15 The deep reason behind the use of probabilistic causality in law & economics, especially in its form of proportional liability, is in the words of Shavell that "for parties to be led to reduce accident risks appropriately, they should generally face probability-discounted or "expected" liability equal to the increase in the expected losses that they create" (Shavell, 1985, 587-588).…”

Coping with Insidious Injuries: The Case of Johns-Manville Corporation and Asbestos Exposure

“…In the Manville cases it took decades of preparation and trial work before the tide turned in favor of plaintiffs. Moreover, the legal system allows defendants almost unlimited opportunities to increase the costs of the proceedings for their opponents, while it simultaneously restricts the interests of plaintiffs' attorneys in their own work (Rosenberg, 1984 This bears on one major argument about how to make corporations more responsible. Simply fining corporations and/or making them pay damages to victims does not produce the intended deterrent effect, this argument goes, because such expenses do not translate into direct financial liability for the individuals who made the blameworthy decisions.…”

The Robustness Case for Proportional Liability

“…We will not analyze such a rule since it does not achieve socially efficient behavior even if the standard of due care is set at the socially optimal care and injurers are solvent (see Kahan 1989, 440-1;Shavell 1987, Proposition 1, 52-3). 6 See, for example, Landes and Posner (1983), Rosenberg (1984), andShavell (1985). 7 See, for example, Sindell v. Abbott Laboratories, 26 Cal.3d 588, 607 P.2d 924, 163 Cal.Rptr.…”