This Article analyzes the problem of indeterminate causation in torts and develops a system of compensating plaintiffs that responds to both optimal deterrence and corrective justice criteria. Under this system, the plaintiff’s award should equal her harm multiplied by the ex post probability of causation. Any other system, including that of recovery for lost chances that many courts have adopted, would either under-compensate or over-compensate the plaintiff. The Article’s approach is presently recommended by the Third Restatement of Torts.
This Article derives from the general theory developed in my book with Ariel Porat, Tort Liability under Uncertainty (Oxford University Press, 2001).
Available at: http://works.bepress.com/alex_stein/8/