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The Persistence of Proximate Cause

Allen, Jessie (2012) The Persistence of Proximate Cause. Denver University Law Review, 90 (1). 77 - 129.

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This Article starts with a puzzle: Why is the doctrinal approach to “proximate cause” so resilient despite longstanding criticism? Proximate cause is a particularly extreme example of doctrine that limps along despite near universal consensus that it cannot actually determine legal outcomes. Why doesn’t that widely recognized indeterminacy disable proximate cause as a decision-making device? To address this puzzle, I pick up a cue from the legal realists, a group of skeptical lawyers, law professors, and judges, who, in the 1920s and 1930s, com-pared legal doctrine to ritual magic. I take that comparison seriously, perhaps more seriously, and definitely in a different direction, than the realists intended. Classic anthropological studies reveal several telling structural similarities between traditional proximate cause analysis and ritual magic. Moreover, it seems that in diverse cultural contexts, magic not only survives skeptical exposure, it feeds on it. Drawing on the anthropological literature, I propose that exposing doctrinal indeterminacy functions as a kind of ritual unmasking that ultimately increases rather than diminishes the credibility of doctrinal analyses. The Article concludes by considering how unmasking doctrinal indeterminacy works to strengthen faith in doctrine and by raising some questions about the implications for law’s legitimacy. Does unmasking doctrine only further mask judicial power? Or can ritual theory help us see some potential legitimate value in maintaining doctrine as the form of legal decision making, even as we acknowledge doctrine’s inability to determine legal outcomes?


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Item Type: Article
Status: Published
CreatorsEmailPitt UsernameORCID
Allen, Jessiejallen@pitt.eduJALLEN0000-0003-1934-3444
Date: 2012
Date Type: Publication
Access Restriction: No restriction; Release the ETD for access worldwide immediately.
Journal or Publication Title: Denver University Law Review
Volume: 90
Number: 1
Page Range: 77 - 129
Institution: University of Pittsburgh
Schools and Programs: School of Law > Law > Faculty Publications
School of Law > Law
Refereed: No
Uncontrolled Keywords: jurisprudence, doctrine, anthropology, torts, negligence, magic, ritual, performance, New, Legal, Realism, judicial, decisionmaking
Date Deposited: 11 Aug 2015 20:24
Last Modified: 04 Jan 2021 21:09


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