Probabilistic Causation in the Law

This paper challenges the view that the legal system's conception of causationis largely deterministic and token-level because of law's focus on assigning ex post responsibility for past acts. We argue, in opposition, that the probabilistic, ex ante, and type-level conceptions of causation that dominate the social sciences have a larger place in the legal system than is often recognized. Not only does the law frequently use probabilistic conceptions of causation for ex ante rule generation (as opposed to rule application), but probabilistic conceptions also play a substantial role even in the ex post application of legal rules.