A Defense of the Use of the Hypothetical Case to Resolve the Causation Issue--The Need for an Expanded, Rather Than a Contracted, Analysis

Authors

James A. Henderson Jr., Cornell Law SchoolFollow

Document Type

Article

Publication Date

1-1969

Keywords

Negligence cases, Duty, Causation, But-for causation, Cause-in-fact, Scope of the risk, Risk-within-the-duty, Public policy, Wayne Thode, Texas & Pacific Railway v. McCleery

Disciplines

Torts

Abstract

Professor Henderson suggests that a place still exists in the law of torts for using the "hypothetical case" as a limit on the scope of liability. In making this suggestion, he disagrees with Professor E. Wayne Thode's argument in 46 Texas L. Rev. 423 (1968) that "duty" should be the sole repository of liability-limiting policy decisions in negligence cases. Professor Henderson proposes the creation of a new causation issue--cause in fact of harm to the plaintiff--that earlier defenders of causation-as-a-policy-issue seem to have overlooked.

Comments

This article predates the author's affiliation with Cornell Law School.

Recommended Citation

Henderson, James A. Jr., "A Defense of the Use of the Hypothetical Case to Resolve the Causation Issue--The Need for an Expanded, Rather Than a Contracted, Analysis" (1969). Cornell Law Faculty Publications. 970.
https://scholarship.law.cornell.edu/facpub/970

Publication Citation

Published in: Texas Law Review, vol. 47, no. 2 (January 1969).