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  It was the doctrine of independent, intervening causes on which Wharton staked his entire hopes for limiting entrepreneurial liability within the orthodox paradigm of objective causation. And it was here that the emerging doctrine of foreseeability seemed to him to pose the greatest danger. "The consequence" of any foreseeability test, Wharton wrote, "would be that the capitalist would be obliged to bear the burden, not merely of his own want of caution, but of the want of caution of all who should be concerned in whatever he should produce." If courts could argue that even intervening causes of an injury were foreseeable, the result "would he traced back until a capitalist is reached. . . . If this law be good, no man of means could safely build a steam engine, or even a house." 128 But whether or not the choice between natural sequence and foreseeability tests had, in fact, any real effect on aggregate levels of liability, it is clear that any formulation of causation in terms of foresight presented major dangers.

  We have already seen that Wharton regarded the natural sequence idea as a major intellectual barrier against multiple causation, which he identified as leading to communism. But Wharton also saw an entirely different threat emanating from any reliance on a foreseeability test: the potential of redistribution through a theory of strict liability. There existed

  certain necessary though dangerous trades, of which we can say statistically that in them will be sacrificed prematurely the lives not merely of those who voluntarily engage in them, but of third persons not so assenting. Yet in such cases (e.g. gas factories and railroads), we do not hold that liability for such injuries attaches to those who start the enterprise foreseeing these consequences.129

  In a statistical world, Wharton saw, any foreseeability test would lead to the conclusion that all risks were predictable in the aggregate. Indeed, though he was not alarmed at the prospect, Green saw similar results from a shift to a prediction theory and noted that "[w]ith events of this kind, underwriters deal."130

  In a world of randomness, where there is no necessary connection between particular causes and effects, all we can hope to do is statistically to correlate acts and consequences in the aggregate. Wharton's individualistic notions of moral causation and free agency had begun to yield to a world of probabilities and statistical correlations. 131

  When, in 1897, Holmes declared that in law "the man of the future is the man of statistics and the master of economics," 132 he already clearly understood the implication that flowed from the radical change in the conception of responsibility that a prediction theory entailed. Earlier, in The Common Law (1881), Holmes had opposed turning the state into "a mutual insurance company against accidents" that would "distribute the burden of its citizens' mishaps among all its members." Not only was "state interference . . . an evil, where it cannot be shown to be a good"; more important, "the undertaking to redistribute losses simply on the ground that they resulted from the defendant's act" would "offend the sense of justice," since it was based on "the coarse and impolitic principle that a man acts always at his peril." 133

  Now, however, he recognized both the pressure of organized labor for worker's compensation laws and "the inclination of a very large part of the community . . . to make certain classes of persons insure the safety of those with whom they deal." Most injuries

  with which our courts are kept busy today are mainly incidents of certain wellknown businesses. '('hey are injuries to person or property by railroads, factories, and the like. The liability for them is estimated, and sooner or later goes into the price paid by the public. The public really pays the damages, and the question of liability, if pressed far enough, is really the question [of] how far it is desirable that the public should insure the safety of those whose work it uses. 14

  Without objective causation, the problem of assigning liability had become simply a question of the fairness of the distribution of risks, "a concealed half conscious battle on the question of legislative policy." Liability for injury had become just another cost of doing business, which could be estimated, insured against, and ultimately included in "the price paid by the public." The individualistic world of Wharton's moral causation and free agency had begun to be transformed into a world of liability insurance in which the legislative question of who should pay would ultimately undermine the self-contained, individualistic categories of private law.

  With the movement for workers' compensation after 1910,135 the shift to a statistical or actuarial conception of risk came to be allied with a new vision of causation as probabilistic. Beginning in the 192os, Legal Realists began the final assault on the citadel of objective causation.

  The lightning rod for criticism of the old order in this area, as in many others, was Harvard Law School Professor Joseph Beale, who in 1920 offered a formalistic defense of orthodox doctrine. 136 "The rules . . . formulated by Beale," Hart and Vonore have written, "were presented in a terminology of mechanical `forces.' " "[I]t is impossible not to sympathize with the wish to cut loose from the tradition which gave such rules birth." The "appearance of defining proximate cause in factual, policy-neutral terms was little more than a sham." 137

  In the midst of widespread attacks on courts in worker injury cases, Progressives not only sought to take these cases out of the judicial system entirely; they also wished to undermine and subvert legal doctrines that enabled judges confidently to withdraw cases from juries. Just as an entire literature developed attacking the defenses of contributory negligence and assumption of risk 138-two other major doctrines that permitted judges to rule in favor of defendants as "a matter of law"-so too did causation become a target of those who wished to deprive the judge of any naive confidence that causation could be invoked on a neutral, objective, or scientific basis. The 'result was that by the time the Realist revolution had run its course, causal doctrines were substantially deprived of their power to take cases from ordinarily pro-plaintiff juries.139

  The challenge to the objectivity of causation by the Legal Realists highlighted several important themes. The notion that there were objective chains of causation with intervening and supervening causes-Beale's "mechanistic" theory-usually had operated within the legal system to favor corporate defendants over plaintiffs. Like many other questions involving jury control, traditional causation doctrine gave judges a scientific and objective basis for refusing to submit a case to a normally pro-plaintiff jury. "Courts know very well that juries are inclined to be sympathetic to plaintiffs and less so to defendants. . . . When . . . it submits the case to the jury, [the court knows] full well that its verdict may be impelled . . . by entirely extra-legal and prejudicial items." 140 To the extent that a court was able to refuse to submit a case to the jury on the grounds that there was no causation, therefore, it could deprive the plaintiff of a victory. By contrast, "if the court has decided to submit a case to the jury, it has already decided in the plaintiff's favor the only real issue of proximate cause. . . ." 141

  The article that launched the Legal Realist attack on the orthodox theory of causation was written by Henry Edgerton, professor of law at George Washington University and soon to become a major New Deal figure on the U. S. Court of Appeals for the District of Columbia. 142 He was followed by Leon Green, who, starting with his Rationale of Proximate Cause (1927), soon came to dominate the Legal Realist approach to the issue.14' Green combined persistent attacks on the "legal theology" of objective causation with an insistence that the question of proximate cause needed to be determined not by judges but by juries.

  The Legal Realist challenge to orthodox conceptions of causation came to a head in one of the most famous cases ever decided, Palsgraf v. Long Island Railroad (1928).144 In an opinion by judge Benjamin N. Cardozo, the New York Court of Appeals reversed a lower court judgment in favor of a plaintiff who had been injured after a bizarre series of events. The question was whether the plaintiff could recover after an explosion at one Fnd of a Long Island Railroad station overturned a scale that fell on the plaintiff, who was standing at the other end of t
he platform. The explosion occurred when a railroad guard pushed a passenger into a crowded train and accidentally knocked a package of fireworks he was carrying onto the tracks.

  Judge William S. Andrews's dissenting opinion, in favor of the plaintiff, was as clear a statement of the Legal Realist position on causation as any ever uttered by a judge. The explosion was clearly the actual or "but for" cause of the injury, Andrews explained. "A boy throws a stone into a pond. The ripples spread. The water level rises. The history of that pond is altered to all eternity.""' The real issue, however, is how to limit responsibility for these infinite consequences through some idea of proximate cause:

  What we . . . mean by the word "proximate" is, that because of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point. This is not logic. It is practical politics. . . . It is all a question of expediency. There are no fixed rules to govern our judgment. . . . There is in truth little to guide us other than common sense.196

  How did judge Cardozo's majority opinion stand in relation to this emerging Realist challenge to causation? Surprisingly, he insisted that the case was not one about causation at all. "The law of causation, remote or proximate, is . . . foreign to the case before us," he declared. Rather, the question was really about the "anterior" issue of whether the defendant owed any duty at all to the plaintiff. 141 "The conduct of the [railroad] guard, if a wrong in its relation to the holder of the package, was not a wrong in its relation to the plaintiff, standing far away. Relative to her it was not negligence at all. . . 'Proof of negligence in the air, so to speak, will not do.' ')48

  Cardozo's effort to shift the issue from the question of causation to the one of duty was closely related to many complex issues in the history of tort theory. It seems to indicate that Cardozo had accepted the Legal Realist critique of the objectivity of causation, and thus instead sought to find a solution in the area of duty. Did framing the analysis in terms of duty really make any difference?

  From our post-Realist perspective, it might be thought that the same policy considerations that would enter into determinations of proximate causation would also determine the question of duty. Yet, it appears that Cardozo, a transitional figure with respect to Realism, still thought of the duty question as capable of mediating between a purely political conception of causation and a strictly formalist conception of legal obligation.

  Duty was also the central issue in Cardozo's even more famous earlier opinion in MacPherson v. Buick (1916).149 In that case, the question was whether, in the absence of privity between an automobile manufacturer and a consumer (who was in privity with the intermediate dealer who sold him the car), the manufacturer owed any duty to the consumer not to be negligent. Cautiously embracing one of the most radical and controversial opinions of a late-nineteenth-century English judge, who suggested that everybody owed a duty to the entire world not to be negligent, 1 50 Cardozo directly attacked the citadel of privity. The dramatic point of MacPherson, then, was to overthrow the traditional private law conception of duty in which one generally owed an obligation only to someone who was not a stranger. Before MacPherson, unless there was a legal interaction between the defendant and the plaintiff, there was no duty.

  In sharp contrast to the generalized "duties owed to the world" approach of MacPherson is the disaggregated and particularized private law conception of duty in Cardozo's Palsgraf opinion. In Palsgraf, we have seen, Cardozo distinguished between the duty that the railroad owed to the passenger and the duty owed to Mrs. Palsgraf. The negligence of the railroad guard, as previously stated, "was not a wrong in its relation to the plaintiff, standing far away," Cardozo concluded."s' This would be the equivalent of saying in MacPherson that the negligence of the automobile manufacturer was a wrong in its relation to the intermediate dealer, but not in relation to the consumer with whom there was no contractual relationship. As we have seen, that is precisely the traditional view that MacPherson had overthrown.

  It appears, therefore, that between the time of MacPherson and Palsgraf, Cardozo had begun to have second thoughts about the potential for unlimited liability that his view of duty in MacPherson seemed to entail. He thus retreated to a more individualized private law conception of duty to restore traditional limitations on the scope of liability. Indeed, it was only after the scope of duty expanded around the turn of the century that causation prominently emerged as a separate limiting device. Before that time, limitations on the scope of duty served the same liabilitylimiting function that causation came to perform. So why did Cardozo not also turn to causation to limit the reach of duty?

  By the time Palsgraf was decided, objective causation had begun to be dis credited in most fields, especially in the natural sciences. The collapse of causation in the natural sciences was actually occurring at virtually the same time that Palsgraf was decided. When the Viennese philosopher Friedrich Waissman lectured at Oxford University on "The Decline and Fall of Causality," he pinpointed 1927, the year that Heisenberg enunciated the "uncertainty principle," as the year that "saw the obsequies" of causality in contemporary science. 152

  Moving beyond the natural sciences, Thomas Haskell points to a general decline of causal analysis in American social thought beginning around the turn of the century. 15' The attack on formalism, Haskell argues, was at bottom an attack on causation by a new generation of thinkers who "from their concrete social experience in an urbanizing, industrializing society" understood the world as radically more interdependent. "Where all is interdependent," Haskell writes, "there can be no `independent variables. . . . To insist on the interconnectedness of social phenomena in time and in social space is to insist on the improbability of autonomous action.""' Haskell continues:

  Things near at hand that had once seemed autonomous and therefore suitable for causal attribution were now seen as reflexes of more remote causes. Those factors in one's immediate environment that had always been regarded as self-acting, spontaneous entities-causes: things in which explanations can be rooted-now began to be seen as merely the final links in long chains of causation that stretched off into a murky distance. One's familiar milieu and its institutions were drained of causal potency and made to appear merely secondary and proximate in their influence on one's life. 155

  During the 192os and 193os, Legal Realists created the distinction between actual or "but for" causation, on the one hand, and legal or proximate causation, on the other, in recognition of the collapse of objective causation. Thereafter, the question of proximate cause would be addressed, as judge Andrews had argued, as an issue of "convenience [and] public policy."

  A version of this chapter was delivered at the West Virginia University College of Law as an annual Edward C. Donley Memorial Lecture and published in 88 W. VA. L. REV. 173 (1985). 1986 by the author.

  The gradual acceptance of the reality of multiple causation was one measure of recognition that a more complex and interdependent society had emerged by the turn of the century. During the quarter century after 1873, Americans had been forced to come to terms with an accelerating sense of loss of control over their destinies, as those familiar "island communities" that had structured an earlier way of life were seen to be rapidly fading away. It was a period marked by three deep economic downturns. As the Panic of 1873 was followed by depressions in 1885 and 1893-1897, Americans discovered the seemingly harsh inexorability of the business cycle. If the Paris Commune of 1871 introduced fear of socialism into American culture, the Great Railroad Strike of 1877 triggered a pervasive fear that, by succumbing to the disease of European class struggle, America had finally been drawn into the bitter cycles of European history.

  After the rapid growth of the Knights of Labor during the Depression of 1885, social tensions were brought to a boil in the Haymarket riot of 1886, which reinforced the view that America would no longer be immune from the laws of history and economic development. As in Europe; industrialization was producing greater i
nequality and more intense forms of social conflict. The inexorability of the business cycle meant that America could not e"en hope to find special favor in escaping from the universal laws of economics.

  During the 189os, the sense of crisis spread as the long depression of 18931897 and a series of major strikes from Homestead (1892.) to Pullman (1894) moved the country to levels of internal strife that revived memories, perhaps exaggerated, of the Civil War. As social conflict finally erupted into national poli tics, the strong showing of the Populists in the elections of 1892 set the stage for the colossal struggle between Bryan and McKinley in the presidential election of 1896.