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A Defense Of The Use Of The Hypothetical Case To Resolve The Causation Issue--The Need For An Expanded, Rather Than A Contracted, Analysis, James A. Henderson Jr.

Cornell Law Faculty Publications

Professor Henderson suggests that a place still exists in the law of torts for using the "hypothetical case" as a limit on the scope of liability. In making this suggestion, he disagrees with Professor E. Wayne Thode's argument in 46 Texas L. Rev. 423 (1968) that "duty" should be the sole repository of liability-limiting policy decisions in negligence cases. Professor Henderson proposes the creation of a new causation issue--cause in fact of harm to the plaintiff--that earlier defenders of causation-as-a-policy-issue seem to have overlooked.