The Efficiency Theory of Causation and Responsibility: Unscientific Formalism and False Semantic
![handle is hein.journals/chknt63 and id is 563 raw text is: THE EFFICIENCY THEORY OF CAUSATION AND
RESPONSIBILITY: UNSCIENTIFIC FORMALISM
AND FALSE SEMANTICS
RICHARD W. WRIGHT*
In his article, Robert Cooter asserts that the efficiency theory of tort
law is consistent with the traditional corrective-justice, rights-based view
of tort liability. More particularly, he claims that the efficiency theory is
consistent with the causation requirement in tort law, according to which
a defendant is not held liable unless her tortious conduct caused injury to
the plaintiff's rights in his person or property.' I have argued that the
efficiency theory is fundamentally inconsistent with both the traditional
view of tort liability and the causation requirement that is a central part
of that view.2
In this comment, I intend to demonstrate that the claims of Cooter
and the other legal economists are built on an habitual confusion over
and misuse of fundamental concepts. As this symposium indicates, the
confusion is not limited to the legal economists, although they have done
more than anyone else in recent years to maintain and expand the confu-
sion. Since I have much ground to cover, I must be succinct. I hope that
readers will refer to the sources that I cite for more thorough develop-
ment of the various points.
I. DISTINGUISHING CAUSATION FROM RESPONSIBILITY
Cooter recognizes that the traditional conception of tort law is that
it is a system of liability based on individual autonomy and individual
responsibility. But he erroneously assumes that the dividing line between
individual autonomy and individual responsibility is marked solely by
causation of injury to the person or property of others.3
Cooter and others have been misled on this point by a too literal
reading of some statements by H.L.A. Hart, Tony Honor6, and Richard
* Associate Professor of Law, IIT Chicago-Kent College of Law. B.S. 1968, California Insti-
tute of Technology; J.D. 1973, Loyola University, Los Angeles; LL.M. 1976, Harvard University. I
have benefitted from comments by Sheldon Nahmod and Stewart Sterk.
I. Cooter, Torts as the Union of Liberty and Efficiency.- An Essay on Causation, 63 CHI.-KENT
L. REV. 523, 524-25 (1987) (Professor Cooter's article appears in this symposium issue.).
2. Wright, Actual Causation vs. Probabilistic Linkage: The Bane of Economic Analysis, 14 J.
LEGAL STUD. 435 (1985) [hereinafter Wright, Bane].
3. Cooter, supra note 1, at 524.](ViewImageLocal?handle=hein.journals/chknt63&div=32&collection=&method=preview&ext=.png&size=3)
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The Efficiency Theory of Causation and Responsibility: Unscientific Formalism and False Semantic
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