Professor Michael Moore was quoted extensively in a November 13 Bloomberg Law article on the nature of in-fact causation in the context of Section 1981 of the Civil Rights Act of 1866. The law is at the heart of a racial bias case that was argued at the Supreme Court last week, Comcast Corp. v. National Association of African American-Owned Media . According to Bloomberg, the case, which the DOJ joined and argued in support of Comcast, could make a class of potential racial bias claims either newly viable or much more likely to be summarily dismissed by federal courts.
Moore, who has studied the nature of causation and moral and legal responsibility in his legal scholarship, said the but-for test “really doesn’t work” in cases where there are multiple motivating factors for a decision or multiple causes for an action.
“You can have two people each sufficiently burning down a house, and neither is necessary,” yet both are a cause of the harm, Moore said. Under the test the government and Comcast support, it would be difficult to prove either defendant’s liability—in other words, each could argue in defense that the house would’ve burned down anyway, without their individual contributing action.
“But the idea that neither is liable is preposterous and no court has really adopted” or applied the analysis in that manner, Moore said.
“If you really want the Civil Rights Act and Section 1981 to do what it was supposed to do in 1866, then it should be enough to require a plaintiff to show that race was a substantial reason” for an adverse decision, Moore said.
Read the full article at bloomberglaw.com.