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The Psychology of Tort Law$
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Jennifer K. Robbennolt and Valerie P. Hans

Print publication date: 2016

Print ISBN-13: 9780814724941

Published to NYU Press Scholarship Online: May 2017

DOI: 10.18574/nyu/9780814724941.001.0001

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(p.65) 4 Causation
The Psychology of Tort Law

Jennifer K. Robbennolt

Valerie P. Hans

NYU Press

This chapter explores the psychology of causal reasoning and the implications of this psychology for tort law. The chapter surveys what is known about counterfactual thinking, a process that is at the heart of the but-for test of causation. In addition, the chapter explores the multiple challenges that decision makers face in making causal inferences in complex real-world settings. These include evaluating the contributions of multiple causal factors, evaluating causation in the context of a background risk of harm, identifying the particular source of a harm, and assessing causes that are part of broader causal chains. The chapter raises questions about the role of legal advocacy in defining competing causal accounts and the counterfactual potency of those accounts.

Keywords:   background risk, causal accounts, causal chains, counterfactual potency, counterfactual thinking, legal advocacy

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