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9 Stan. L. Rev. 60 (1956-1957)
Ruminations on Cause-in-Fact

handle is hein.journals/stflr9 and id is 94 raw text is: Ruminations on Cause-In-Fact WEx S. MALONE* For nearly a century judges and writers have struggled to un- ravel the tangled skein of fact and policy. Even today the search is on for a judging and language technique that will enable courts to deal with these two components separately and effectively. In tort controversies the focal point for scrutiny in this respect has been the issue of causation. At the close of the last century courts used the term cause indiscriminately to express either their con- clusion as to what happened or as a means of explaining what law ought to do about it. As it became increasingly obvious that no single expression could fully support the burden of both in- quiries without confusion, legal science began to recognize two separate notions-cause-in-fact, and proximate or legal cause. This was generally regarded as a major triumph of analysis. Writ- ers of opinions undertook to explain in detail that the two types of cause perform entirely separate functions in the resolution of a tort dispute and that they are associated only by a vague common denominator-a confusing language similarity. Proximate or legal cause has claimed the lion's share of attention,' while cause-in-fact, or simple cause, is always regarded as though it raises only a question of fact. The judge, it is com- monly said, can do no more than propound the inquiry on causa- tion. It is wholly within the jury's province when it becomes an issue at all.? Certainly it is true in a sense that simple cause is a question of fact. The production of testimony, often in lavish and conflicting detail, is essential to the effort to establish or refute simple cause. Frequently it is necessary to know not only what happened, but what might have happened if the defendant's conduct had been other than what it actually was. Sometimes the services of experts * B.A., University of North Carolina, University of Chicago, 1928; J.D., University of North Carolina, 1931; LL.M., Harvard University, 1933; Professor of Law, Louisiana State University. The author is greatly indebted for the capable assistance of Mr. C. Hugh Friedman, B.A., Yale University, 1953; LL.B., Stanford University, 1956. Mr. Friedman's help in this undertaking was made possible by a grant from the Rockefeller Foundation. 1. See RESTATEMENT, TORTS § 281(b) (1934); GREEN, THE RATIONALE OF PRox- rfATE CAusE (1927). The available arguments on both sides are discussed in PRossER, ToRTs 168-73, 252-57 (2d ed. 1955). 2. GREEN, op. cit. supra note 1, at 135. See also PRossEE, op. cit. supra note 1, 5 44 & 218 n.1.

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