On Causation

In this Essay, Professor Matsuda argues that the narrow dyadic focus of tort law perpetuates very real, and remediable, social harms. Using tort causation doctrine as her starting point, Professor Matsuda demonstrates how the tort system sacrifices human bodies to maintain the smooth flow of the economic system. Time after time, tragedies occur: school systems fail, first graders shoot each other, women live in constant fear of rape. Yet each tragedy is met with the same systematic response: those without resources, those least able to correct the harm, are considered the legal cause of the harm. The economic and corporate interests that created the structure in which these tragedies occurred are absolved of legal and moral responsibility. Professor Matsuda proposes two changes to this system: First, when determining legal cause, we must expand tort liability in consideration of the ability of defendants to avoid, prevent, and redress social harm. Second, we must exchange our egocentric notion of responsibility for a communal and connected understanding of social responsibility. For instance, when I walk over a homeless man on my way to law school, I must recognize that it is not just a social failing that caused his plight; it is a personal failing on my part. Professor Matsuda argues that we exist in, and benefit from, a society that makes his position possible, and under current understandings of responsibility, even inevitable