John A. Bruegger (Southern Illinois University Simmons Law School) has posted Against Formalist Reductionism: A Pragmatic-Contextualist Defense of Substantial Factor Causation on SSRN. Here is the abstract:
The judiciary’s recent shift from “substantial factor” causation toward a rigid, binary “but-for” standard promises metaphysical clarity but delivers an epistemic crisis. In complex, multifactorial litigation like toxic torts and pharmaceutical harms, strict counterfactual testing fails, insulating tortfeasors whenever causal mechanisms resist mechanical proof. Grounding legal inquiry in pragmatic contextualism, this Article defends substantial factor causation as an indispensable normative tool. It argues that while invariant rules may serve criminal justice, civil adjudication demands causal flexibility to achieve deterrence, victim compensation, and fair risk allocation. Rejecting both formalist reductionism and pseudoscientific set-theory alternatives, this Article demonstrates why substantial factor causation, anchored by inherent safeguards of the adversarial justice system, remains essential to corrective justice.
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