Statutory proximate cause.

AuthorSperino, Sandra F.

INTRODUCTION

Federal statutes often use general causal language to describe how an actor's conduct must be connected to harm for liability to attach. For example, a statute might state that harm must be "because" of certain conduct. (1) Federal courts have recently relied on this general causal language and other arguments to apply the common law idea of proximate cause to several federal statutes. (2)

While legal scholarship has explored the relationship between statutes and the common law generally, (3) it has not considered whether particular common law doctrines are especially problematic in the statutory context. This Article argues that using proximate cause in statutes raises many theoretical, doctrinal, and practical problems, and that, to date, courts have engaged in crude statutory interpretation that largely ignores these issues.

Court interpretation relies on demonstrably weak textual, intent, and purpose-based arguments to justify using proximate cause. Courts have not been sufficiently attentive to congressional direction, separation of powers, the relationship of modern statutes to the common law, and whether proximate cause is theoretically stable. I coin the term "statutory proximate cause" to highlight the special issues that arise when this common law principle is used in statutes. (4)

In statutory proximate cause cases courts assume that federal statutes are comparable to common law torts, such as negligence. While statutes are often torts in the broad sense that they are civil actions that do not arise from a contract, this definition is not helpful to understanding whether proximate cause should be applied to a particular statute.

The Article highlights how, at its core, proximate cause is a mechanism for limiting liability for conduct that statutes otherwise arguably prohibit. Courts assume that congressional intent related to proximate cause resides only in narrow causal language and ignore that Congress often expresses intent related to liability limits throughout statutory regimes. Indeed, in many instances Congress has provided a complex system of interlocking liability limits that strongly suggests that the space for proximate cause is not coterminous with the common law. More importantly, if a modern statute contains gaps regarding the extent of liability, there is no reason to generally assume those gaps should be filled by reference to the common law.

Proximate cause is a notoriously flexible and theoretically inconsistent concept. This Article argues that the term is often an empty vessel, into which the courts can pour multiple meanings. Courts often use the broad idea of proximate cause as a framework for discussion, selectively quoting available sources to reach a particular outcome. Proximate cause is so slippery and used in so many different iterations, that it does not provide potential litigants with enough guidance to judge the likely outcome of disputes either ex post or ex ante.

Anticipating increased future judicial forays into statutory proximate cause, this Article argues that courts must conduct more sophisticated inquiries into whether statutes incorporate common law proximate cause and demonstrates why courts should be reluctant to import it. It explains how courts can often use explicit statutory provisions or other doctrines to limit liability. It calls for courts to abolish interpretive canons that currently favor using proximate cause and sets forth an architecture for courts to use in those instances when proximate cause is needed.

Parts I and II provide the analytical groundwork for the Article by providing examples of statutes that raise statutory proximate cause problems and discussing proximate cause, separation of powers, and statutory interpretation. Part III demonstrates the faulty arguments courts have used when engaging in statutory proximate cause inquiries. Part IV describes issues that make proximate cause especially problematic with regard to statutes, arguing that many statutes do not map well onto the traditional torts in which proximate cause developed. Part V develops an architecture for statutory proximate cause inquiries.

  1. PROXIMATE CAUSE: THE WORK OF ALADDIN'S LAMP (5)

    To consider whether proximate cause should enjoy a place in statutes, it is first necessary to have an understanding of tort causation, separation of powers, and statutory interpretation. An exhaustive description of these topics is not especially helpful to the task at hand, especially given the extensive scholarship that deals with these subjects individually. Rather, this Part and the following one perform a framing function, identifying and defining the key attributes of these topics relevant to the underlying inquiry.

    At common law, causation often embraces two different kinds of issues: cause in fact and legal or proximate cause. (6) "Conduct is a factual cause of harm when the harm would not have occurred absent the conduct." (7) In some tort cases, such as negligence cases, factual cause is a necessary, but not a sufficient basis for imposing liability on a defendant for harm. In these cases, courts impose a requirement of legal cause, also called proximate cause.

    Four attributes of proximate cause are important for purposes of statutory analysis. First, courts have not arrived at a consistent concern or set of concerns that underlie it. Second, proximate cause inherently relates to policy. While courts express proximate cause in different ways, every iteration serves a liability-limiting function, in that it further defines the scope of prohibited conduct in cases where an actor can be described as factually causing an event. Proximate cause expresses a normative preference about where the line should be drawn. Third, the goals of proximate cause have evolved over time and are still evolving. Finally, courts vary the use of proximate cause in tort cases, depending on whether the underlying tort is an intentional one or not. Together, these four attributes make it difficult to apply proximate cause to statutes.

    Defining proximate cause is notoriously tricky. (8) Leading torts commentators indicate that "[t]here is perhaps nothing in the entire field of law which has called forth more disagreement, or upon which the opinions are in such a welter of confusion." (9) Considered broadly, proximate cause is essentially concerned with problems regarding intervening actions, a foreseeable plaintiff, the scope of risk of the defendant's actions, and/or policy concerns. (10) While it is possible to describe these concerns separately, in some cases, two or more concerns overlap.

    Some courts use proximate cause to determine whether some intervening action cuts off the original actor's liability, (11) In thinking about superseding cause, the court is often determining that the acts of a third party interrupt the sequence of conduct, consequence, and injury between the defendant and plaintiff such that the liability of the defendant is no longer appropriate. (12)

    At times proximate cause is concerned with reasonably anticipated consequences or the slightly different, but often related, question of whether the harm caused was within the scope of risk of the defendant's conduct. (13) Some courts have identified proximate cause as considering whether the plaintiff was foreseeable. (14) Each of these iterations is hopelessly tied up in goals and policies related to the underlying cause of action, because none of them can be defined irrespective of it. And any of these iterations is likely to result in a wide variety of potential outcomes. (15)

    In some iterations, proximate cause is described without reference to any particular goal, but rather generally as line drawing, determining when as a matter of policy a defendant should not be liable, even though its actions caused the injury in question. (16) Importantly, five members of the Supreme Court have recently embraced this line-drawing function of proximate cause. (17) In a recent case the Court explained that the term "proximate cause" is "shorthand for a concept: Injuries have countless causes, and not all should give rise to legal liability." (18) It then quoted the dissent in Palsgraf which noted that "because of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point." (19)

    The Supreme Court has referred to proximate cause as a generic label the courts use to describe "the judicial tools used to limit a person's responsibility for the consequences of that person's own acts." (20) It also has quoted a noted torts treatise referring to proximate cause as reflecting "ideas ... of what is administratively possible and convenient." (21) In this iteration, it appears the Court is more concerned about proof issues. For example, if an injury is less direct, it is more difficult to determine how much of the plaintiffs damages can be traced to the violation (a factual causation issue) and whether the courts would need to engage in complex decisions regarding how to apportion damages among multiple plaintiffs to eliminate the risk of multiple recoveries. (22) These latter concerns are actually not proximate cause concerns, but courts often use proximate cause to resolve these issues.

    The Supreme Court has recently bemoaned the lack of consensus regarding proximate cause definitions, noting that common law formulations include, among others, "the immediate or nearest antecedent test; the efficient, producing cause test; the substantial factor test; and the probable or natural and probable or foreseeable consequence test." (23) Members of the Court cannot agree on what exactly proximate cause is designed to accomplish. (24) While five members of the Court recently adopted the line-drawing account of proximate cause, four members of the Court have stated that proximate cause relates to whether there is "some direct relation between the...

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