The Limits of Probabilistic Causality in Law

Abstract

There is still controversy regarding what criterion to use to evaluate causality. The law & economics literature proposes the use of probabilistic causality as a superior criterion, suggesting the elimination of binary causality criteria. This led to explanations that violate our intuitions, fail to explain judicial decision-making, and are considered unjust. This paper proposes that neither binary nor probabilistic causality can provide a satisfactory answer for all scenarios. Probabilistic causality works well for general causal claims (types of claims centrally involved in rulemaking) while binary criteria perform better for single causal claims (types of claims commonly addressed by courts).