Proximate Cause in Negligence Law: History, Theory, and the Present Darkness

Frank Miller is a generous man.In his professional career, he has given unstintingly to three separate groups.To the legal community, he has given seminal works of scholarship marked by honesty, analytical rigor, and a deep respect for the facts.To his students, he has given an example of and an incentive to careful analysis, clear statement, and meticulous preparation.To his friends, he has given his encouragement, his support, and his obstinate loyalty.Frank's primary scholarly contributions have been in the areas of criminal law and criminal procedure, but early on in his career he colaborated with Arno Becht on a book about factual causation in negligence and strict liability cases.'The book reflects Frank and Arno's shared commitment to analytical rigor, clarity, and honesty.Venturing into a field beset with puzzles and confusion, Frank and Arno started with a limited number of basic assumptions, hammered out a set of analytical tools, and used them to categorize and pick apart a number of problem cases, bringing to clarity much that was obscure.This essay, on the equally puzzling related topic of proximate cause, is dedicated to Frank Miller, in the sure and certain knowledge that he will disagree with much of it, but in gratitude for his friendship, example, encouragement, and loyalty. II. THE PRESENT DARKNESSIn negligence cases, our courts require the plaintiff to prove that the defendant's negligence was a "proximate cause" of the plaintiff's injury.Modem tort theorists have lavished seemingly boundless attention on the