Causation and uncertainty: Making connections in a time of change
| Abstract | This paper considers how tort law should respond to scientific developments that improve our ability to connect toxic exposure to changes in human health. Starting from a normative position that encourages proof of traditional sine qua non causation, the paper suggests an allocation of cases between the tort system and legislatively-created compensation programs. With regard to the latter, the paper sets out guidelines that lawmakers can use when deciding whether to replace tort law. With regard to the former, the paper divides its recommendations into two categories, one for cases where plaintiffs have existing clinical symptoms of disease, and another where plaintiffs have only an increased risk of disease. Recognizing the gray area that exists between these two groups, the paper proposes burdens consistent with traditional causation rules to serve tort law's underlying goals. | |||||||||
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