David Filvaroff was my torts professor. Professor Filvaroff was one of those teachers who drill a mile deep and an inch wide. He really did not care whether his students understood what lawyers call the “black letter” of tort law (e.g., the elements of a negligence cause of action are A, B, C . . . ). I suppose he assumed we would pick up the black letter on our own as the occasion arose. Instead, he wanted us to understand the philosophical underpinnings of tort law, which made his class terrible for bar exam prep (the bar exam emphasizes “black letter” law) but unparalleled for increasing our understanding of the general philosophy of law.
Even after all these years I remember well Professor Filvaroff’s classes (not lectures; it was Socratic) dealing with the issue of causation in which he taught us that such a deceptively simple concept sometimes has unexpected nuances. The causation analysis is often very straightforward: Driver A was careless and allowed his vehicle to cross the yellow line and strike the plaintiff’s vehicle. Driver A’s carelessness caused the collision which harmed plaintiff. Simple enough.
But consider this scenario from Professor Filvaroff’s class: Executive decides to build a large suspension bridge and contracts for its construction. Executive has reviewed the actuarial data for construction projects of this type, and he knows to a moral certainty that at least two and as many as five workers will die from accidents during the construction of the bridge. He goes forward with the project, and sure enough three workers die.
Did Executive cause the workers’ deaths? Of course he did. All he had to do to prevent their deaths was cancel the bridge project. His decision to move forward with the project was a critical link – perhaps the critical link – in the chain of causal events (what lawyers call the “chain of causation”) leading to the workers’ deaths. So why is the careless driver liable at law and the Executive not? As I recall, we spent two class days discussing this issue, and at the end this is what we learned: Every attempt to distinguish the Executive from the careless driver as a matter of pure logic fails. When we examine such attempts closely we always find that the supposedly “logical” explanation masks a value judgment. For example, we might say the Executive’s action is “remote” in the chain of causation, and the careless driver’s action is “direct.” But what do “remote” and “direct” mean? Certainly there is no objective standard for remoteness and directness in these situations.
We can substitute other descriptors for “direct” and “remote.” We can say, Executive’s action was merely “but for” causation – a link in the chain that bears a logical connection to the ultimate outcome but is not the “proximate” cause of the outcome. Here again, where is the dividing line between “but for causation” and “proximate causation”?
Professor Filvaroff hammered home this point again and again: We hold the careless driver liable and don’t even think about bringing a case against Executive not based on logical considerations but on moral considerations. Yes, the Executive is responsible in some sense, but no one believes he is culpable, so we do not prosecute him.
I was thinking about Professor Filvaroff the other day when a commenter said that a good and loving God could not have created a universe in which evil existed. It is undeniable that God is “responsible” for the existence of evil. After all, all he had to do for evil never to have existed was to refrain from creating the universe (or anything else apart from himself), just as all the Executive had to do to prevent the deaths of the workers was to cancel the bridge contract. But does the fact that God is a link in the “but for” chain of causation leading to the existence of evil make him culpable for that evil? Or, just as with Executive, is the issue more nuanced?