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The Phenomenology Of Medico-Legal Causation, Nicholas Hooper
The Phenomenology Of Medico-Legal Causation, Nicholas Hooper
Dalhousie Law Journal
The language of counterfactual causation employed from the bench obscures the analytical vacuity of the "butfor" test. This paper takes issue with the consistent recourse to "common sense" as a methodological tool for determining the deeply complex issue of causality. Despite manifestly empty gestures to, e.g., robust pragmatism, the current approach imposes the dominant values of the judiciary in a manner that perpetuates the current distribution of power. Whatever the merits of counterfactual inquiry, its legal iteration requires judges to construct a hypothetical narrative about "how things generally happen." This, in turn, impels a uniquely comprehensive brand ofjudicialcreativity. The results …
Frames Of Reference For Legal Ideals, W. L. Morison
Frames Of Reference For Legal Ideals, W. L. Morison
Dalhousie Law Journal
The publication of Canada's most newly established legal journal by Canada's oldest established common law school naturally prompts reflections concerning the elements of continuity and change in legal writing, and legal thinking generally. Legal writing has so radically changed during the existence of Canada's oldest common law school, or for that matter during the existence of Australia's oldest law school to which the writer belongs, that articles written even during the earlier part of this century excite feelings of nostalgia in some people. In welcoming an article published in the Sydney Law Review in the nineteen fifties, Dean Erwin Griswold …