causes in the construction of causal law: a psycho-ecological model

International Journal of Law and Psychiatry 33 (2010) 73–83

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International Journal of Law and Psychiatry

Causes in the construction of causal law: A psycho-ecological model

Gerald Young ⁎York University, Canada

⁎ Department of Psychology, Glendon College, York UToronto, Ontario, Canada M4N 3M6. Tel.: +1 416 726 2

E-mail address: [email protected].

0160-2527/$ – see front matter © 2009 Elsevier Ltd. Aldoi:10.1016/j.ijlp.2009.12.009

a b s t r a c t
a r t i c l e i n f o
Keywords:ConstructionLawEpistemologyPsychology

The article presents an integrated psycho-ecological model of the construction of law, with implications forpractice in law and mental health. The model is based on a series of concentric circles, each representing alayer of influence on the construction of law. The circle furthest removed from the center represents theinfluence of culture, society and industry, in particular, and the circle at the center of the circle represents thecase at hand, for example, about individual complainant or mass action. The article begins by arguing thatbasic terms in relation to cause need clarification and also work is needed to disambiguate the conceptsinvolved. After dealing with these issues, the article examines science and mental health. Is the scientificevidence presented by the expert sufficiently reliable and valid to meet admissibility standards of goodcompared to poor or junk science? Is the research undertaken for court or presented to court biased, withfactors hidden, such as links to industry. Are individual evaluations conducted with biased science serving tojustify partial conclusions? The dangers of powerful influences on the construction of law are highlighted, forexample, related to the individual complainant malingering and the insurance industry protecting itsfinancial interests at the expense of genuinely injured patients. In conclusion, suggestions for empiricalresearch are offered.

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The article presents an integrated, synthetic, or co-existentialpsycho-ecological model of the construction of law, and indicates itsimplications for practice in law and mental health. The law hasdifficulty defining basic terms in relation to cause. Moreover,theoretical efforts to clarify the terms and concepts involved areinconsistent or ambiguous. Therefore, on the one hand, the first half ofthe article deals with themost basic terms in the field. The second partof the article deals with science and mental health for court purposesand in court. This prepares the way for presentation of a comprehen-sive model of how causal laws are constructed, with influences fromthe legal to the mental health to the wider context or ecology. Mentalhealth professionals have an important role to play in attempting toestablish causality in individual cases and in conducting research thataddresses the mental health and legal issues involved. The dangers ofpowerful influences on the construction of law are highlighted (in thecomplainant, the attorney, the mental health professional, theinsurance industry, etc.). When self-interested and financial motiva-tions take precedence over the welfare of the genuinely injured and illor when individuals lie and malinger to maximize their claims, thesystem in place is jeopardized.

Fig. 1 indicates that the construction of law takes place in a contextof multiple interactive influences. It is impossible to understand theorigin of laws related to mental health injury and causality without

examining the full scope of influences, from legal theory andepistemology to the societal and political. At other levels, one needsto examine the causality threshold tests in the law (e.g., is there amaterial contribution of the event at claim) and how evidence isscreened for admissibility. How do mental health professionalsaddress the thresholds, for example, in their conclusions in cases athand? Moreover, in the research pertaining to the types of case athand, is the science reliable and valid, has it been undertaken strictlyfor court purposes, and is it free from biases? (Tables 1, 2, 3 and 4).

The figure at the heart of the model is based on a series ofconcentric circles, each representing a layer of influence. The figuredepicts an ecological point of view, where the circle furthest removedfrom the center represents the influence of culture and society on theconstruction of law and the circle at the center represents the case athand, whether about an individual complainant or mass action.

I refer to “legal” causality in the title for the model, because, asshall be shown, different disciplines have different models andunderstanding of the same or similar terms in the study of causality,and one should be specific about the discipline involved in theconcepts and terms presented. Before beginning, note that Iinterchange the terms causality and causation, although the formeris more associated with process (Young & Shore, 2007).

1. Epistemology

The areas of philosophy of law and legal theory (Golding &Edmundson, 2005) provide a conceptual analysis of law based on

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Fig. 1. The psycho-ecological model of legal causality. The figure indicates the layers of influence that determine definition and tests of causality and causation in cases involvingeither individual or mass action torts. The first inner circle concerns immediate influence of the court system in relation to the claim at hand due to the event at issue. Mental healthprofessionals need to be attuned to the adversarial divide and the pressures that it exerts on them to engage in partial and incomplete assessments of injured and ill parties for thebenefit of the plaintiff or defense side. Is the scientific evidence presented by the expert sufficiently reliable and valid to meet admissibility standards of good compared to poor orjunk science, and help the court, according to extant criteria of good science described in Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993), in particular? The second inner circlepresents factors that can adversely impact good science, such as conflicts of interest and litigation science, and how they affect individual evaluations and population-levelpublications. Is the research undertaken for court or presented to court biased, with factors hidden, such as links to industry, and are individual evaluations conducted with biasedscience serving to justify partial conclusions? The outer circle examines wider factors related to society, politics, industry, and so on, and philosophical and theoretical approaches tothe construction of law. The model serves to illustrate that a wide range of variables influence laws about causality in tort and similar actions. In constructing laws, pragmaticadjustments are needed, but ones that do not devalue the harmed, impaired, and disabled survivor in an event at claim and their rights to fair treatment, compensation, and justice.The model attempts to present an integrated model of causality that addresses process (e.g., good law) and product (e.g., good mental health evaluation). It is labeled “psycho-ecological” to emphasize the role of context in constructing law and the role of psychological factors in all major actors and agents involved, from the individual complainant to theprofessionals involved to institutions such as the insurance industry.

74 G. Young / International Journal of Law and Psychiatry 33 (2010) 73–83

epistemology. The two main points of view of how law is constructedare the legal positivist-legal realistic one, and the one to which itstands in contrast, of natural law. The views refer, respectively, to abottom-up construction of law according to social pragmatics and to atop–down construction based on principles of justice and morality.Legal positivism emphasizes that legal rules are constructed inde-pendently of any grounding inmorality or in natural law. According tolegal realism, existing laws derive from contextual and pragmaticconsiderations reflective of social interest and public policy (Garner,2004). In contrast, according to natural law, law is consideredmoral in

scope, and is embodied in principles of right and wrong (Garner,2004).

Murphy (2005) described natural law as having rational standardsor conduct. In contrast, he described the legal positivist view as onethat emphasizes law as social rule rather than as rational standard orconduct. That is, law is grounded in social facts and conventions. Bix(2005) further emphasized that legal positivism is better in dealingwith laws grounded in authoritative sources and officials, but not aseffective in dealing with common law reasoning, moral content,purposive interpretation, principles, and landmark cases that change

Table 1Definition of key terms used in Fig. 1 on the psycho-ecological model of legal causality:Inner circle.

Term Definition

Causal test In tort law, the “but-for” test is the classic one. The doctrine isthat causation is evident when the outcome would not havetranspired absent or without the occurrence of the event atclaim or action of the implicated party. Other tests have beenproposed, including for foreseeability, necessity, sufficiency,and material or substantial contribution. They have difficultydealing with complex scenarios such as joint causation andacts of omission rather than commission. This affects capacityto arrive at apportionment of responsibility and damages.

Causality The relationship between a cause and its effect. It concerns theprocess more than the product. In practice, it is usedinterchangeably with the term causation.

Causation The production of an effect by a cause. It concerns the productmore than the process. The term is used interchangeably withthat of causality.

Generalcausation

In the general population, at the statistical or normative levelaccording to the scientific research, general causation refers towhether the issue at hand or at claim (e.g., toxic exposure, MVA)is considered as an inducing factor in individuals of the resultthat follows (e.g., illness, injury).

Individual tortcase

A civil wrong involving a breach of duty (not contract) that isactionable and allows for pursuit of remedy for the individualplaintiff, usually in the form of award of damages.

Mass actioncase

A civil wrong that injures or renders ill many people. It can leadto a civil law suit, usually class action, or by administrativeundertaking.

Specificcausation

In cases where general causation applies, does the event orissue at hand lead to actionable results (illness, injury) in theindividual case at hand where damages can be pursued?

Note. The terms in this table and in the three following ones were defined based onGarner (2004), Merriam Webster (2003), and Young and Shore (2007).

75G. Young / International Journal of Law and Psychiatry 33 (2010) 73–83

the direction of authorities, and so on. Therefore, for Bix, natural lawemphasizes the reasons for action that can influence a person's moralobligation, whereas legal positivism emphasizes the law as a socialinstitution or evaluative contract. Bix further distinguished betweenexclusive legal positivism, in which the existence and content of a lawis determined socially, and inclusive legal positivism, which does notexclude a role for moral criteria in a particular legal system as long asthe law has not been determined because of its moral merits. Thelatter point of view suggests as possible an integrated middle positionacross the two main opposing views.

Leiter (2005) examined the perspective of legal realism, which isrelated to legal positivism by its rejection of a moral and rule basedimpetus to the construction of law. In deciding a case, a judge reacts toits facts, “whether or not those facts are legally significant” (p. 53).Generally, according to realism, legal rules and reasons have little orno effect on judges' legal decisions.

Leiter described that there are different schools of realism. Thesociological branch of realism emphasizes that social forces operateon judges. The idiosyncratic branch of realism emphasizes thepersonality of the individual judge. According to Leiter, legal realismhas not survived in its original form as an influential theory andperspective on law, but it has influenced contemporary schools, suchas critical legal theory. It is noteworthy that the school refers to thepersonality of the individual judge in factors that influence law.

Young (2008) argued that the law should establish an integrative,middle ground in its approach to causality and causation with respectto its philosophical underpinnings. It should not be based alone oneither the principled (natural, moral) or pragmatic (positivism,realism) viewpoints, but on both together, in a synthetic integration.

That is, a synthetic legal perspective on causality and causationshould be established on the basis of fundamental legal principles, forexample, related to rights and justice. Also, laws related to causalityshould have room for flexible and pragmatic adaptation to social andother issues. A synthetic view of causality integrates the principled

and pragmatic views, understanding law as built on common sense aswell as rigorous, principled logic. In this regard, a synthetic view ofcausality should include components involving both process andproduct. For example, in an event at claim, does the evidence indicateboth that the event is sufficiently responsible for the outcome(process) and that the outcome reaches liability threshold (product)?

Moore (2009) examined the epistemological and metaphysicalunderpinnings to the concept of causation. He sought a unifiedconception, and advocated a common sense view. He averred thatwhat matters is the apportionment of causation among all substantiallycontributing factors. He supported the view that causality is aboutprocess. He referred to his view as generalizing singularist/singularist,primitivist, and physicalist–reductionist. For example, it is primitive inthat causation may be indefinable, but a juror would know when it ispresent. It is generalizing singularist because causal laws are inductivegeneralizations over single relations. It is singularist when no reductiveanalysis is possible. At the same time, he presents potential criticisms ofthe substantialist doctrine (that is it arbitrary and vague, but hedismisses these criticisms). In addition, hedismisses thegeneralist view.

It should be noted that although singularist and general views areprevalent in legal epistemology, the two termsasused inphilosophy seedconfusion for the typical mental health professional. These professionalswould consider that the philosophical perspective of singular views ofcausation really refers to a general conception applicable to all singularsituations. In contrast, the generalist view really refers to multiplesingular views, not readily integrated. Either way, Moore's view that thetwo positions can cohere into one framework applies; however, Iquestion his rejection of arriving at a genuinely general conception ofcausation. Instead, I emphasize that a synthetic view is possible thatintegrates product and process in understanding causality—it couldaccommodate multiple causal situations, while emphasizing theirsubstantiality and without straying from common sense.

2. Causality in related disciplines

In other disciplines that deal with causality, terms related tocausality are disputed, yet the search for a unified theory of causality iscentral. According to Krieger (2008), in the field of public health,proximal influences are distinguished from distal ones. In biology,Wilson (2008) argues that top–down factors are not causes butdescriptions. Culture is a top–down force with little explanatory factoroutside of lower-level forces in understanding behavior. Note that forKreiger biological factors are downstream rather than upstream;however, for Wilson, they are bottom-up rather than top–down. Also,Kreiger considers societal influences as upstream, but Wilsonconsiders them as top–down. The different fields use these terms indifferentmanners, ascribe to them causal roles to varying degrees, anddiffer further from the law in their use. In another example, themanner inwhich the term “proximal” is used in public health concordswith its use in biology (see Young& Shore, 2007), but the equivalent ofthis term in law (proximate cause) is used very differently.

In comparative political science, Mahoney (2008; Mahoney, Kim-ball, & Koivu, 2009) has argued that a unified causal theory is one thatwill borrow both from the case-oriented and population-levelstatistical research. My own work (Young, 1997) refers to anintegrated or co-existential model of epistemology. However, despitethe trans-disciplinary goal of finding causal theories that haveuniversal application, definitional and conceptual terms need clarifi-cation before progress can be made.

3. Terminology

In the legal field, the terms related to causality and causation haveseveral meanings, differ in meaning from those in other fields, andhave been judged as confused (Young & Shore, 2007). Causality andcausation often are used interchangeably. The concepts revolve

Table 2Definition of key terms used in Fig. 1 on the psycho-ecological model of legal causality: Inner middle circle.

Term Definition

Admissibility Relative to a particular hearing, trial, or other legal proceeding, evidence that possesses sufficient probative or helpful qualities relative to prejudicialor biased qualities so that it has the capacity to be entered into evidence in the legal proceeding.

Adversarial In the Anglo-American legal system, opposing parties engage in active, unhindered contests as they present their cases to independent decision-makers(Garner, 2004, p. 58).

Attorney A practitioner in law who can be legally hired, appointed, or designated to conduct business on behalf of another.Case law The law comprised of the reported cases in a particular jurisdiction. Case law in the civil arena often is similar across national jurisdictions, given

their common origin in, or the influence of, the Anglo-American legal system, e.g., consider the transnational influence of the legal decision Daubert.Claim The total of relevant allegations of fact in an action taken to court as justifying a right, and the demand for damages, remedy, or relief, e.g., monies,

associated with it.Court A government body that has independent judicial powers, as determined in law, where a judge (or judges) adjudicate legal disputes and administer justice.Damage When an individual suffers loss or injury (harm, impairment; physical, mental health; or to property), for example, due to a negligent action by another,

the damage sustained can be compensated through legal action leading to awarded damages.Damages Monies claimed by or paid to a party after a legal claim, as compensation for inflicted loss or injury (e.g., harm, impairment; illness or physical or mental

health injury).Daubert Refers to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). In this U.S. federal Supreme Court decision,

a method was established for use in federal district courts to determine whether proffered expert testimony is admissible under relevant Federal Rulesof Evidence. According to the rule, to which Daubert and its progeny contributed, does the testimony consist of scientific, technical, or other specializedknowledge that will help the fact finder in understanding the evidence or determining a fact at issue. The presiding judge or trial court functions as thegatekeeper of proffered evidence, determining whether it is reliable or valid and relevant or helpful to the case at hand. In admissibility hearings, theattorney must demonstrate that the underlying methodology, reasoning, and application in the evidence to the case at hand are valid. The factorsconsidered in admissibility determinations that Daubert enunciated for scientific evidence include the tests of falsifiability or testability, peer reviewor publication, known or potential error rate and the presence of standards that control operation, and general acceptance in the scientific community.The tests can be applied to nonscientific evidence, and similar tests exist in many state and provincial jurisdictions.

Defense One or more defendants in a trial or legal proceeding, and the counsel involved, acting to present the best case against the claims of the plaintiff.Evidence Testimony, documents, exhibits, or other tangible objects that might be submitted to court in order to prove or disprove an issue before the court.Expert A person with applicable training, knowledge, skill, or experience in a relevant area of a legal case. This background enables the person to arrive at

opinions that will assist the fact finder in deliberations on the matter at hand.Fit The expert's testimony fits the case when it helps the trier of fact in its decision making, by linking the scientific evidence to the facts in the case at hand.Frye Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). The defunct common law rule related to admissibility of U.S. federal rules of scientific evidence.

The scientific test or procedure needs to have gained general acceptance in the particular field involved. This is now only one prong of the Daubert standardthat replaced Frye.

Gatekeeping The court attempts to screen out or render inadmissible irrelevant, inadequate, unreliable, or invalid scientific and other expert testimony. To preventunqualified experts to testify on a matter at hand or to prevent any expert from submitting poor scientific evidence, often called “junk” science.

Injury A physical or mental health harm or damage due to external causes that violate the person's bodily or mental integrity and legal right, meriting remedy.Judge A public official of the court who is appointed or elected to hear and decide upon legal matters.Jury A panel of people that deliberates on a case presented to it and decides questions of fact, returning verdicts.Legal decision The verdict arrived at by a trier of fact (judge, jury) in a case presented to it.Money One form of compensation for damages. Official legal tender transacted in legal disputes.Plaintiff A party that initiates civil action in court to seek monetary or other redress for alleged damages.Prejudicial Evidence that would prove unhelpful or bias legal judgments.Probative Evidence that would prove helpful and not bias legal judgments.Relevant Evidence that is applicable to the case at hand, assisting the trier of fact in resolving the legal question.Reliable Evidence that is grounded in scientific standards and methodology, meeting thresholds of validity (soundness, accuracy) in the discipline.Tort A civil wrong resulting in damage for which a legal remedy is sought in court, usually in the form of damages.Trier of fact Fact finder; Judge or jury. One or more persons who receive testimony and review the evidence relevant to a factual issue or case in order to arrive at rulings.Valid The law's use of the term reliable is akin to psychology's use of the term valid. For a test or diagnostic system to be valid, it must measure or achieve what it is

supposed to, being accurate, sound, and trustworthy.Witness An individual who, in court, testifies about what he sees, has heard, or otherwise knows, or vouches for something. Witnesses of fact are distinguished from

expert witnesses.


around events at claim that have led to damages beyond certainthresholds and therefore are liable and actionable.

Proximate causes refer to actionable causes in fact that are liable,reaching sufficient thresholds of damages incurred, thereby allowinglegal (and financial) action to compensate for the outcome. The causeis “legally sufficient to result in liability”; the consequence is“sufficient so that liability can be imposed on the actor” (Garner,2004, p. 234). This is the primary definition that one encounters forthe term in the legal field. However, Garner gives a second definitionfor proximate cause and, surprisingly, it is consistent with thedefinition of causes in fact. Proximate cause also is referred to as “acause that directly produces an event and without which the eventwould not have occurred” (p. 234). The confusion is compoundedwhen Garner indicates that in both senses of the term, alternate termsinclude direct cause, efficient cause, initial cause, first cause, legalcause, producing cause, and primary cause.

Causes in fact refer to causes established in law as responsible fordamages incurred and, therefore, as potentially actionable, irrespec-tive of whether or not they meet de minimus liability thresholds.

Garner (2004) states that this type of cause refers to the causewithoutwhich the event would not have taken place. Alternate terms includefactual cause and but-for cause.

To summarize, the term proximate cause in the legal field is notdefined in a straightforward way according to the leading lawdictionary. It usually refers to the liability component of a cause infact, but can refer to a cause in fact, as well, and even to both!Moreover, Moore (2009) noted that the term is a misnomer, for itrepresents a noncausal, policy term related to liability. For mentalhealth professionals, given that their field does not deal with legalliability, the term proximate cause is perceived as especially related tothe term causes in fact, to which it is usually opposed in law.

Moreover, the very term chosen by the law to represent the causalnexus at hand (causes in fact) implies that the causes as adduced by thecourt are indeed factual and established truths, ones that have passedthrough the rigor of the legal system's bars and hoops [from attorneypresentation of the theory of the case, or its refutation, to admissibilityscreening by the judge and trier of fact (judge, jury)]. The field of mentalhealth is more circumscribed in its conclusions about so-called facts and

Table 3Definition of key terms used in Fig. 1 on the psycho-ecological model of legal causality: Outer middle circle.

Term Definition

Case study Scientific study of a single individual, family, or social unit.Conflicts of interest “Psychologists refrain from taking on a professional role when personal, scientific, professional, legal, financial, or other interests or

relationships could reasonably be expected to (1) impair their objectivity, competence, or effectiveness in performing their functions aspsychologists or (2) expose the person or organization with whom the professional relationship exists to harm or exploitation”(p. xxx, American Psychological Association, 2002).

Correlation A statistical index of the degree pf relationship between two variables, each representing an attribute. Correlations that are abovezero can be either positive or negative (i.e., as one variable increases in value, the other increases or decreases, respectively).

Disclosure The act of revealing a potential or real conflict of interest. Disclosure should be full pertaining to the issue at hand. Potential conflictsshould be revealed even when the party believes that there is no genuine conflict.

Epidemiology The science that investigates in a defined human population the factors that determine and influence the frequency and distributionof disease/injury and health related events and their causes.

Experiment A series of measurements or observations undertaken in controlled conditions to study a relationship of interest, with the goal ofunderstanding the cause(s) of the relationship.

Evaluation Assessment of an individual or family unit by gathering and interpreting data toward making a diagnosis, decision, applicable conclusion,or recommendation. In assessments for court purposes, the evaluations should be comprehensive, impartial, and scientifically informed.

Idiographic Relating to the description and understanding of an individual as opposed to the average case in the general population.Litigation science Research undertaken to serve the needs of the court or parties involved with it. Usually, this refers to research related to ongoing legal

cases or to research initiated to bring an issue at hand to conclusion. The research could be prophylactic, to head off claims in court.It could be to establish oneself as an expert for court.

Medicine The profession that deals with the prevention, alleviation, or cure of disease, illness, or injury, and the maintenance of good health.It follows the medical model, and subscribes to medicinal intervention, such as in the case of psychiatrists, who are the mental healthprofessionals in the discipline.

Nomothetic Relating to studies aimed at developing general laws concerning the average person in a population, compared to the study of aparticular individual.

Psychiatrist (Psychiatry) In psychiatry, physicians are educated and trained to specialize and practice in the assessment, diagnosis, treatment, prevention, andstudy of personality, behavioral, mental, and emotional disorders. They function from the medical model, prescribe medication, etc.

Psychologist (Psychology) In psychology, professionals are trained in the research, practice, and/or teaching of one or more subfields of psychology. Thepsychologist usually has a doctoral degree and needs formal certification, licensing, or registration to practice. Psychology concernsstudy of behavior, mind, affect, and other mental processes (as well as their biological underpinnings, e.g., related to the brain),and their changing organization over time.

Publication A written product describing mental health that ideally is published in a reputable scientific venue, such as a peer-reviewed journal orscholarly book.

Research The systematic attempt to discover or confirm facts, or data to interpret, or to investigate a topic or issue.Researcher The professional trained in the scientific method of inquiry who undertakes research.Science A system of knowledge that includes general truths and laws, as discovered and tested using or informed by the scientific method.


truths, as it attaches conditional probability estimates to its statementsabout them. In thefield ofmental health, the goal is to reduce uncertaintyrather than to acquire certainty, to support rather than to prove, or toreject the null hypothesis (there is no significance) rather than tounequivocally accept the experimental one (there is significance).

To conclude, if the law should overtly acknowledge its use of theterm proximate causation as a combined term, so that it indicates eventsthat are both causally contributory and potentially actionable and liable,itwill avoid the confusionassociatedwith it. In this regard, causes in fact,which are also called legal causes, should be called legal causes in fact. Byusing this new term instead of the confusing one of causes in fact, themental health professional, and other scientists called to court, will feelless discomfort and a greater ease in translating the terms into thelanguage of their science. The term that I recommend to replaceproximate cause—liable cause—places it squarely in the legal camp, andtherefore will not be confusing to the mental health professional orother scientist. It corresponds to the suggestion to label cause in fact aslegal cause in fact, further removing confusion among mental healthprofessionals dealing with these terms. Finally, the combined term forcause in fact and liable cause should become the term proximate legalcause, just as I have suggested that the former two terms should haveadded to them the adjective “legal.”

Having qualified the basic terms related to cause in the legal field,the next task is to understand how the court treats proving causalityin tort and related claims. Classically, the courts expectations arereferred to as the “4 Ds”—the plaintiff must demonstrate that therehad been a dereliction of duty directly causing an outcome deservingof damages (Young, Kane, & Nicholson, 2007). The classic test used toindicate direct cause by the event at claim is referred to as the “but-for” test—the injured party would not be in the present conditionwithout the event at claim having taken place. Other elements toconsider include the negligence of the typical people in the event at

claim—did the defendant or negligent party simply react as would thereasonable or typical person and is the plaintiff reacting as thisaverage person? Also, one asks whether the negligent party couldhave foreseen and avoided the event at claim or its effects, althoughthis test is less important than it had been. Finally, establishingcausality usually includes whether the event at claim was a necessaryand sufficient cause of the outcome, the sole cause, the principlecause, part of a joint cause, at least a minimal cause, or a material one.

4. Minimal, material, and substantial contributions

At the practical level of how the court handles the terms andconcepts involved in causation, it is noted that there is disagreementthe degree to which an event at claim must be implicated before it isactionable. The field needs to clarify whether even a minimalcontribution to the harm at issue is sufficient, or whether it must bemore than minimal or even substantial.

Note that although the concept of a “substantial” contribution of acomponent of a causal nexus is a common one, recently the concepthas been criticized (Sanders, Green, & Powers, 2008), and it isexplicitly rejected and abandoned in the draft of the third Restate-ment of Torts (American Law Institute, 2007). It is considered both toostrict and too lenient, depending on how it is used, and its use hasstrayed from its original intent. The argumentmade is that as long as afactor is a material contributor or factor beyond the de minimus,insubstantial, theoretical, infinitesimal, trivial, or negligible range, itshould be considered part of the causal nexus, and there is no reasonto give it the added threshold of having to be “substantial.” In cases ofjoint responsibility in material causation, it is best to apportioncausation among the factors, and also the subsequent liability awardsfor damages.

1 Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184, 122 S.Ct. 681,151 L.Ed.2d 615 (2002).

2 Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311 (9th Cir. 1995).3 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.

Ed.2d 469 (1993).4 Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

Table 4Definition of key terms used in Fig. 1 on the psycho-ecological model of legal causality:Outer circle.

Term Definition

Bottom-up Influences in a system stemming from lower-order levels andcomponents.

Community An interacting social grouping that coheres or is unified becauseof commonality or similarity in location, beliefs, or lifestyle.

Collectivism Distinguished from Individualism. A sociocultural tradition,ideology, or personal view that values the group or communityabove the individual members' rights, independence, andrelationships.

Culture A community or society that shares common, distinctive customs,knowledge, beliefs, values, artifacts, art, music, language, etc.

Epistemology A subfield of philosophy about the nature, origins, and limitationsof knowledge.

Group A set of people with a common agenda, activity, goal, etc.History A knowledge or description of significant past events on a topic,

with an attempt at causal explanation.Individualism See Collectivism. A sociocultural tradition, ideology, or personal

view that values the individual relative to the community, e.g.,about rights, independence, and relationships.

Insuranceindustry

The business of covering by contract the possibility of specifiedlosses, and indemnifying them once they occur. A powerful, profit-making corporate system that provides services in health care.

Jurisprudence The study of the general fundamentals of a legal system, distinctfrom the study of its practical, concrete specifics.

Legalphilosophy

The study of the law, legal systems, and legal theory, generally.

Legal system The collection of legislation, case law, and other legal rulings, theinstitutional structures that create them, theworker roles involved,(e.g., judge, attorney), and the diverse influences on the system.

Legal theory That part of jurisprudence that examines foundational concepts,constructs, and models applicable across and within legal systemsin separate jurisdictions and over them.

Natural law A philosophical concept of law that it is grounded in, embeddedwith, and deriving from moral principles rather than legislative orjudicial action. See Positivism (legal), for a different view.

Politics The art or science of government.Positivism,legal

A philosophical concept of law that legal rules obtain their validitynot because they are grounded in, embedded with, and derivingfrom moral principles but because they are products of legislativeor judicial action by existing authorities or otherwise accepted asbinding by a society.

Pragmatism Adopting a practical or workable approach rather than an ideal orprincipled approach.

Principles,legal

Fundamental rules, codes, doctrines, assumptions, postulates,“laws,” formalisms, or theories that underlie legal working,products, and thought.

Process An unfolding of an operation or activity.Product The result or outcome of an unfolding process.Realism, legal The view that the law is based on judicial decisions based on social

interests and public policy, rather than on formal rules andprinciples.

Society An organized, cooperating social group.Time Pertaining to the present model, time refers to how the ecological

and psychological contexts that contribute to the construction oflaw change or react to new events or factors injected into thesystem.

Top down Influences in a system stemming from higher-order levels andcomponents.


For example, for some aspects of civil law dealing with mentalhealth damages, given the tortfeasor's obligation to take complainantsas they are found and rehabilitate them to their pre-existing state,even a minimal factor could be sufficient to consider noteworthy. Tospecify further, in joint cause, when an event at claim functions onlyas a minimal one, or as the last straw on the camel's back, as in so-called “crumbling skull” cases (see Young et al., 2007), it is still legallysignificant and actionable, deserving of rehabilitation for thesubsequent outcome and of compensation for damages.

More often than not, however, more than minimal causation isneeded in the eyes of the law for full compensation for damages. Forexample, a factor is considered important enough to becomeactionable to an important degree in tort only when it contributes

to the person's condition outside of the minimal range and theresultant damage is more than minimal.

Finally, for some aspects of law, for example, concerning the degreeof permanent impairment, dysfunction, or disability, the substantiveor substantial level makes more sense as the critical threshold. Parryand Drogin (2007) elaborated further on “substantial limitation.” Thedefinition of disability in recent U.S. Supreme Court decisions hingeson the meaning of substantial limitations. Prior to Toyota MotorManufacturing, Kentucky, Inc. v. Williams (534 U.S. 184, 2002),1 theusual disability standard for arriving at the threshold of a substantiallimitation involved a “significant” activity restriction. However, thiscase specified that the standard for disability determination shouldreach the threshold of a permanent or long-term impairment thatprevents or severely restricts central life activities. Therefore, in termsof mental health disability, the impairment cannot be episodic, and itmust be present despite appropriate effort to mitigate loss and controlthe impairment by medications. Similarly, for the Social SecurityAdministration, the impairment(s) must be “severe” enough to limitthe capacity to undertake most work activities (Toyota MotorManufacturing, Kentucky, Inc. v. Williams (2002).

To conclude, it is suggested that, depending on context, causationcan be sufficient for court purposes if there is just a minimal materialcontribution due to the event at claim, and in other situations thethreshold should be raised and the causation should be moderate oreven substantial. Mental health professionals would have lessdifficulty dealing with these legal terms in the right context if theywere defined along these lines because they are straightforward,ordered, readily translatable to mental health terms, and answer tocommon sense.

The next part of the article shifts gears toward the outer layers ofthe ecological model of law being described. I examine the contextualfactors related in science and industry, in particular, which affect legaldecision making in the area of causality, sometimes baldy and at thebounds of ethics if not legality.

5. Science in court

5.1. Litigation science

Boden and Ozonoff (2008) examined closely the validity oflitigation-generated science, beginning when it became an issue incourt. Judge Kozinski, in Daubert v. Merrell Dow Pharmaceuticals (43F.3d 1311, 1995),2 a case on remand from the critical Supreme Courtof the United States ruling on the admissibility of scientific evidence(Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 1993),3

maintained that science undertaken directly for litigation purposesmust meet more exacting standards of admissibility. This has beencalled the fifth Daubert factor of good compared to poor science. [Theothers relate to falsifiability, error rate, peer review, and generalacceptance, which had been the sole factor underscored in Frye v.United States, 293 F. 1013 (D.C. Cir. 1923),4 before the other threewereadded in Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993).]

BodenandOzonoff (2008) separated researchundertaken todirectlysupport litigation from research that is more strategic or long-term, forexample, to support the safety of a product, thereby warding off futurelitigation. They argued that all research involving conflict of interestshould be given careful scrutiny, and litigation-driven science shouldnot be singled out for special consideration. There may be less financialincentive in non-litigation science, but there are other biasing factors

5 Blum v. Merrell Dow Pharmaceuticals, Inc., 764 A.2d 1 (Pa. 2000).


involved, such as academic promotion, professional reputation, andpersonal attitude.

However, one could argue that in both litigation-driven and otherresearch, both the livelihood of the researchers and other factors cancontribute to biases in the research. The real issue is the degree towhichthe conflicts are specified in manuscript submissions and publications,and the degree to which the scientific procedures and data are open toscrutiny and all contributors to the research are acknowledged(including ghost writers and statisticians; Young, 2009). Moreover,the example of non-litigation science provided by the authors tobuttress their claims that non-litigation science is characterized byimproprieties and is subject to the samedifficulties as found in litigationscience is not standard in the area of non-litigation science. Indeed, theethical and other dilemmas that bedevil the example chosen make itmost inappropriate as a point of comparison. Specifically, the authorsrefer to safety and efficacy research funded by the pharmaceutical andother industries as an example of non-litigation science. They refer todepartures from accepted normative scientific practice in this area ofresearch, such as fraud, the falsification of data, selective data use, andsystematic skewing of interpretation. Surely, a better example of non-litigation science could have been chosen. Moreover, the differencesacross litigation science and pharmaceutical research are superficial,because both are heavily influenced by financial considerations andpharmaceutical research does end up in court. Instead of exoneratinglitigation science because its difficulties are found in other researchoutside the courtroom, by choosing this most inappropriate compari-son, the authors have served to undermine the perception of itscredibility.

Boden and Ozonoff also pointed out that there is no evidence thatlitigation-driven science of any type compared to other types ofscience has not been subjected to rigorous analysis of its quality. Inany field, a lack of rigorous science is a lack worth pursuing in furtherresearch, but it is not a reason to exonerate litigation science fromwell-known cases of disrepute.

Also, the authors pointed out that cross-examination can serveascertain the validity of science presented to court; for example,attorneys can refer to hired scientific consultants who can analyzescrupulously the research proffered. Moreover, attorneys might bebetter than journal editors at uncovering misleading research, giventhe importance of doing so for the case at hand.

However, this begs the question of how impartial can the hiredconsultants remain in light of their financial remuneration from theattorneys that hire them. In science that is not tainted by conflicts ofinterest, independent replication is considered a primary way ofverifying the truth-value of a study. In the courtroom, final decisionsneed to bemade relatively quickly, and there is no time for this type ofscientific replication. Therefore, the competency and professionalopinions rendered by experts in court and behind-the-scenes hiredconsultants are of paramount importance.When hired consultants areused in court for the purpose of scientific analysis of the research, theirrole should be declared, and their qualifications and professionalstanding should be subject to cross-examination along with theiranalysis.

It is unfortunate that the authors, without supporting data,maintained that, “Few, if any, journal peer review processes are asstringent or as probing as the usual cross-examination performed inan adversarial setting” (p. 120). The purpose of cross-examination isnot to find the neutral ground of truth, and explore all possiblearguments on both sides, but to continue the advocacy for the client'sposition in the case at hand. Cross-examination is not meant toreplace the scientific process in court, exploring all possibilities in animpartial manner and to find errors in thought or scientificmethodology of all the evidence presented. To argue that the crossis stringent and probing is a partial argument.

The following case illustrates the dangers of litigation-drivenscience. In the case, no amount of cross-examination by an attorney

could have been undertaken to hide what was found by theexamination of the evidence by the judge, who engaged in hisgatekeeping function with devastating impact.

Haack (2008) has revisited the testimony proffered by experts inDaubert v. Merrell Dow Pharmaceuticals, Inc. (1993), through theparallel case of Blum v. Merrell Dow Pharmaceuticals (764 A.2d 1,2000)5 in the U.S. state of Pennsylvania. Judge Bernstein in Blum cameto the same conclusions as Judge Kozinski in Daubert (1995)—thatlitigation-driven science should be subject to greater scrutiny thanother science. The judge exposed the lack of forthright nature in thetestimony that had been offered in Daubert.

In Blum, a senior executive in the drug company involved inDaubert admitted to picking and choosing information over a 30-yearperiod. One scientist after another who had participated in Daubertadmitted to their lack of scientific rigor under Judge Bernstein's“devastating scrutiny” in Blum. For example, one expert acknowl-edged that his own published research on the medication at issue was“less than good.” Another expert admitted that the biomedicalcompany involved had consistently engaged in patterns of “under-reporting” the adverse effects of the medication at issue to the federalagency involved. Another expert testified that the biomedicalcompany had supported one professor's research out of its legaldefense funds. An editor of a journal who was also retained as anexpert by the biomedical company for 18 years testified that he is aworld authority in his field, but Judge Bernstein pointed out that he isthe only practitioner in the field! Moreover, this editor published hisown research in the journal without undertaking peer review. Thejudge concluded about another expert that he engaged in “justifica-tion science” rather than inquisitive.

The litany of litigation larceny in the scientific evidence profferedto court, as described by the judge in Blum (2000), strikes at the heartof honest and good science. What happened in Daubert and relatedlegal cases should serve as a constant reminder of how mal-intentioned scientists, [as opposed to science], can pervert justice incourt.

At the same time, one should be prudent in denying admissibilityof litigation science pro forma without according it careful scrutiny.Each article proffered to court as evidence should not be rejectedoutright simply because there are conflicts of interest. Given fulldisclosure of such conflicts and the careful weighing of possible bias,there is no reason why a piece of litigation research cannot be vettedin order to determine whether it makes a fair contribution to scienceby the publishing journal involved. In such research, reviewers needto evaluate transparency, quality of methods, legitimacy of the rawdata, adequacy in describing the design and statistics, whether therehas been inappropriate manipulation of the data, proper and fullpresentation of the results, all possible interpretations of thestatistical results that might make sense to some degree, and so on.With such careful examination, any piece of litigation science could bejudged as good science deserving of admissibility to court. Moreover,even when there has not been proper disclosure of conflicts ofinterest, the research can still meet acceptable scientific standards.

Is there research undertaken in the area of mental health injury andlaw that fits the mold of litigation science? It can be argued that allresearch on the question of malingering, symptom validity testing, andresponse bias fits this category, in that the research is used by mentalhealth evaluators in their assessments of clients in litigation. Therefore,in the area ofmental health injury and law, authors and journals need tobe especially wary of ties to test publishers that are not disclosed(Young, 2009). In the mental health field, test publishers invest moneyto evaluate the reliability and validity of their products. Therefore, thesame concerns raised about litigation science and pharmaceuticalresearch apply to research related tomental health tests. This being said,


the stance of the present article is that authors and mental health testcompanies canwork together in full transparency. Authors canmaintainfull control of the research, data analysis and interpretation andpublication process. The research can make impartial contributions tothe field. The relationship between publishers and authors can bemutually beneficial in such circumstances.

However, there are examples in the literature that appear to crossthe threshold of acceptable science. What if there has been industry-sponsored neuropsychological research with outcomes that favor thatindustry, yet the research was published without author disclosure ofthe industry links? Any work on the neuropsychology of workersexposed to alleged toxins should be published with full disclosure. Ifthere are any allegations that this has not been the case in publishedresearch in the area of mental health injury and law, they should beconfirmed, as they would represent a serious stain on the profession.However, if they are proven to be unfounded, the source of thescurrilous mischief should be castigated, if not pursued professionallyand legally. This being said, if the allegations are determined to be valid,and the author exposed, the results in the research should be reviewed,with an attempt at replication. Finally, perhaps a good research strategywould be to ask other researchers and practitioners how muchconfidence should be placed in the researcher in question for his/herother litigation-related work, assuming that the replications do notprovide results in support of the author and the research in question.

In the next part of the article, I introduce principles of good science,both in undertaking assessments and in conducting research.However, the difficulties in applying good science in practice dependson the practitioner and the amount of good science available thataddresses the critical questions related to causality needed by thecourt had been described as “pre-scientific.”

5.2. Meeting the standards of good science in court

In their book, Heilbrun, Grisso, and Goldstein (2009) presentfoundational principles on forensic mental health assessment (FMHA).They emphasize principles related to general issues and specific cases.For the latter, they include principles on preparation, data collection,data interpretation, written communication, and testimony. Formost ofthese topics, the use of the scientific approach is considered important.For example, the mental health professional should be familiar withrelevant legal, scientific, ethical, and practice literatures, and not bebiased in their use. The mental health professional should accept themost appropriate model to guide data gathering, data interpretation,and communication. Reliable and valid procedures for gatheringinformation should be used. Part of the information gathered shouldpertain to response style, such as possible malingering. The mentalhealth professional is advised to use both idiographic (individual) andnomothetic (population-level research) evidence in determiningclinical condition, functional capacity, and causal connection, andshould use scientific reasoning in establishing the causal relationshipbetween the former two outcomes. Despite these foundationalprinciples that underlie competent forensic and related mental healthpractice, the reality of the adversarial divide in law and the nature ofprinciples of legal practice render difficult the task of the mental healthprofessional.

Skeem, Douglas, and Lilienfeld (2009) describe the difficulties inbridging the chasm between the field of mental health and law.According to them, in terms of causality, the field of mental healthexamines antecedent or past causes leading up to the behavior at issue,in particular, whereas the law considers a larger role for free will indetermining that behavior. As for methods in establishing knowledgeor “truth,” generally, the field of mental health adheres to opendissemination and evaluation of relevant scientific evidence [althoughan individual mental health professional might not], whereas the lawrelies on experts who provide evidence in favor of attorneys' “pet”

theories, while suppressing contrary evidence that weakens the case[although an individual attorney might be more “honorable”].

Faigman and Monahan (2009) address various standards foradmissibility of evidence to court and their impact on mental healthprofessionals. They give the example of California law that has raisedthe bar so that it is possible to exclude sound science; however, in thecase of clinical opinion on future violence, admissibility hearings arenot necessary, which they consider a “perverse” development. Koch,Nader, and Haring (2009) note that, “[T]here are no validatedmeasures or protocols for addressing the causal issues that lay atthe heart of psychological injury claims” (p. 273). Petrila (2009)concludes that the court is beset with problems such as—inattentivegatekeeping, claims being overstated, and substandard clinicalpractice. Despite its progress, the field of mental health and lawneeds to speak to its outstanding issues and what it does not know.

In the following, I present the views of Koch et al. (2009) on thedifficulty in establishing the causal nexus between an event at claimand allegedmental health injuries and between allegedmental healthinjuries and reported subsequent mental health-based dysfunction.Their review indicates that there has been to date no large-scale studyrelating mental health variables and disability, both occupationallyand in personal domains. Little research has been conducted that isecologically relevant for litigating samples. The study of therelationship between mental health and functional disability is “pre-scientific,” and in need of well-designed, generalizable research.Obtuse motivations in personal injury claims include malingering forfinancial gain, seeking more therapy, seeking a subjective sense ofjustice, and seeking revenge, but there have not been sufficient workto disentangle the individual differences along these lines. Moreover,malingering and other complicating response styles have not beenresearched sufficiently with mental health injury complainants. Thenumber of predictors of work disability is numerous, and there areindividual differences in prediction that need better scientificinvestigation. The determination of disability should not be that it issimply an inevitable accompaniment to a diagnosis of a disorder,because the assessor needs to consider the whole person in contextand all possible causes.

5.3. Malingering in court

It is beyond the scope of the present article to include acomprehensive survey of the literature on malingering and relatedresponse biases. This has been undertaken in Young et al. (2007), whopresent a list of 25 factors that assessors should consider in arriving atconclusions related to causality, including its absencewith respect to theevent at claim due to malingering. The interested reader should consultthe journal Psychological Injury and Law, as well as others, for recentarticles on the topic. Suffice it to say that much mental health testing inindividual assessments in the area relates to establishing whethermalingering has taken place, and whether there are other confoundingbiases in complainant presentation. In practice, assessors can use directtests of malingering and symptom validity testing, and also useembedded scales in more omnibus tests that deal with symptomunder- and over-reporting, and negative and positive impressionmanagement. These data can help the assessor to arrive at conclusionsabout the presence of any compromising response styles. For thepurposes of thepresent article, it is important to emphasize that the legalsystem is beset by unfair practices, and needs to protect againstcomplainantswhodeliberatelymagnify symptoms forfinancial gain andagainst plaintiff attorneys who encourage this behavior (e.g., coaching).

This being said, the article next examines the other end of thespectrum—the insurance industry response to the financial pressuresplaced on it, and the role of its own financially-driven incentives. Ascorporate entities, for their own reasons related to self-interest, theinsurance companies will act to maximize profits. The point of view ofthe present article is that the industry has the right to assure its


financial viability, but within legal and ethical limits. These issues arediscussed in a detailed presentation of the model of construction oflaw described in the article.

5.4. The wider picture: the psycho-ecological model in construction oflaw

The model presented in Fig. 1 consists of five concentric circles thatrepresent the series of interacting influences on the construction of law.The latter term does not refer to the procedures in drafting laws but tothe wider dynamics involved. One needs to ask why we need such acomplex model of legal causality and its construction when there areestablished legal terms and tests or thresholds that cases must meet.First, we have seen that these legal terms and tests are not as clear asthey seem, especially to outsiders such as mental health professionals.Second, the dynamics involved in the causal tests and thresholds in thelegal system reflect influences that go beyond the law, per se.

Research does not take place in a vacuum, not are court-relateddecisions about causality. Jurists and scholars argue about the veryterms involved, as has been shown for the terms related to causalityand causation.Whether the legal cases revolve aroundmass tort actionor individual actions, the science is crucial for establishing bothpopulation-level trends and application to individual cases. Does acause that seems general apply to a specific case? To establish the legal“truth” in such matters, or arrive at judicious decisions, the court hasadopted a panoply of legal procedures. After the plaintiff brings alawsuit against the tortfeasor, the attorneys representing the plaintiffand defense develop a theory of the case and call the experts needed tobuttress their arguments. These include mental health professionals,who are supposed to serve as impartial scientists, as should experts ofall disciplines. However, the adversarial divide that marks the courtsystem places much pressure on the attorneys and their experts.

Nevertheless, the evidence submitted to court should be ofsufficient quality to meet admissibility tests, especially those relatedto Daubert, which applies in U.S. federal jurisdictions [andmany statesin its original or altered form. The Frye standard of general acceptancestill qualifies admissibility tests in some states. See Faigman andMonahan (2009)]. The evidence should be helpful or probative to thefact finder, who must decide the ultimate issue, rather than beingunhelpful. By being reliable and valid, scientific evidence canmeet thelegal demands to be relevant, fit, and reliable (valid, legally speaking).The judge determines the admissibility of the evidence in hearingsbefore the case, when challenges arise. The goal of tort action is toobtain remedy, redress, relief, compensation, damages, or monies forthe injury, illness, harm, impairment, disability, or damage thatresulted from the event at claim or otherwise from the negligent act atissue. The trier of fact (judge or jury) deliberates and decides,rendering opinions consistent with the quality of the evidence.However, judges and juries are psychological entities that havepersonalities, proclivities, and beliefs that enter into play in theirdecision making process.

Scientists serve as expert witnesses when their expertise speaks torelevant components of a case at hand. Psychologists and othermental health professionals are trained to undertake research (e.g.,experiments, correlational studies, case studies) with the samescientific rigor and impartiality as other scientists, including inmedicine, and these two professions often are primary experts incases of physical and mental health injury attributed to events atclaim. Psychologists and other mental health professionals are alsotrained to undertake therapy and impartial assessments of individualsurvivors of events such as these, for example, motor vehicle accidents(MVAs). However, the adversarial divide in the legal arena acts as apressure on their impartiality. They might fail to disclose conflicts ofinterest, for example, related to research undertaken presented asevidence in court, or otherwise act in impartial ways, for example, inthe quality of assessments submitted as evidence. By functioning from

a scientific perspective and methodology (a) in their individualidiographic assessments, including in the instruments used, and (b) inthe population-level nomothetic research that they cite [while usingscientific-based arguments in their conclusions], mental healthprofessionals will better assure that they are prepared for admissi-bility challenges and preserve their reputations and careers.

Aside from the adversarial divide, there are many sources ofpressure that are brought to bear on the legal system. Differentsocieties and groups have different histories and values about the law,and different standings relative to the position of individuals in thecollective. When the economy is better, there may be more room forpolicies that are equitable, although industry stakeholders generallybring pressure on the government to enact laws favorable to theirinterests. Consider the following:

• In the insurance regime in Ontario, currently there is enormouspressure from the insurance industry to cut back medical rehabil-itation benefits from $100,000 to $25,000 for other than the mostsevere injuries after MVAs. The argument is that this cost-savingmeasure will still leave most injured individuals with enough care.However, the text between the lines is that those who need moreservices than the new much-reduced level will have to suffer theconsequences for the good of the insurance industry bottom line.The government determines actual policy, but the insuranceindustry lobby is powerful, and politics has an inertia of its own.

• Lake (2007) refers to the empire striking back in the case of its defenseof toxic mold exposure. Davies (2007) argues that powerful interestsnot only in the insurance industry but also in the plaintiff attorneybusiness are holding back reform of tort law and health care.

• Government-sponsored health care and rehabilitation regimes areequally underfinancial pressure (e.g.,workers compensation, veteransadministration, social security regimes regionally or federally).

• Sismondo (2009) queries whether medical researchers and jour-nals, including their editors, are functioning too closely to thepharmaceutical industry, thereby compromising both the sciencethat they publish and the safety of the public.

In constructing law, legislators strive to uphold higher principles ofjustice, fairness, and morality, but pragmatic, grounded, lower-levelconsiderations might act to influence their decisions toward practicaland pragmatic ends. However, legislators need to consider thatpowerful lobbies might influence them toward problematic ratherthan principled ends.

The model presented in the article on the construction of law iscalled the psycho-ecological model of legal causality for severalreasons. First, it considers the full ecological context that influencesconstruction of law. These include institutional factors, such as thederiving from the insurance industry. Second, mental health factorsare important in many of the components of the system. For example,mental health factors determine the degree to which complainantshave pre-existing mental health difficulties (e.g., personality disorder,psychopathology) and whether they engage in any untoward motiva-tions, including malingering. Also, judges' dispositions may influencetheir reactions and proclivities in admissibility hearings. Finally,attorneys argue their case from the adversarial divide and expertsmight function from its filters, especially because of short-term self-interest and gratifications (e.g., payment; Young et al., 2007).

Also important, themodel of law construction that is presented in thearticle is considered mental health because the general approach of asociety toward its members, its minorities, the wronged, those seekingjustice, and its most vulnerable is predicated on the level of rational andmoral deliberations that it has attained. These levels do not simply reflectthe degree of critical andmoral thinking that it educates and professes tofollow but, more important, the degree of perception, or misperception,of its constituent members and groups with respect to the highest ormost advanced levelspossible. Thereare societies thatmistreatwholesaleitsmembers andgroups, some tohorrifying levels.Moreover, evenwithin


our advanced and educated Western society, our commitment to thehighest levels waxes and wanes with political, social, economic, andglobal developments. It has been shownabove that the profitmotive getsin the way of caring motivations of health care insurance institutions.

6. Conclusions

6.1. The injury

The court system related to adjudicating claims about causalityand degree of damage in mental health injury and other areaspertaining to events at claim is marked by terminological andconceptual confusions. Moreover, there is no model that integratesthe various influences on the construction of law in the area.

6.2. The remedy

To better serve the needs of the law and the ability of mentalhealth professionals to function in the field from a scientific andimpartial perspective, the article presents an integrated model of thefactors that influence the construction of law related to cause. On theone hand, causality can be construed in rather narrow terms. In thissense, it refers to whether the event at claim is a material factor incausing the alleged effects in the complainant. On the other hand,causality needs to be understood in wider terms relating to the widerecological context and the whole system that leads to its construction.

The model constructed to answer these types of questions iscomprehensive, helping to understand the range of influences oncausality. It illustrates the strengths in the legal and mental healthapproaches, while pointing out areas that could be improved, forexample, in clarifying concepts and translating better the relevantterms across the disciplines.

6.3. The case

The case is made that the model elucidates the diverse factors thatinfluence the construction of law—from the ecological to the mentalhealth, from the injured to the attorney, and so on.

6.4. The verdict

The scientific jury needs to evaluate the model for its validity. Thejury of practicing professionals needs to evaluate it for its ability toclarify and its applicability. The model is limited by a lack of empiricalresearch; it is suggested that trans-disciplinary research is critical to itssupport, especially across its levels, and across the mental health andlegal fields. The value of litigation science in court needs to beaddressed.

6.5. Causality

The terms related to causality and causation seed confusion whennot used appropriately or when different disciplines use the terms indifferent ways. Science and law should establish a consistentnomenclature. The medical, mental health, and legal fields mightwant to investigate the value of referring to biopsychosocial causalityin order to specify its multifactorial components and interactions andthe common issues that they have about causality.

6.6. Suggested research

In order to show the utility and validity of the model, empiricalresearch could be undertaken that examines factors influencing theconstruction of law on causality and related topics both within thevarious circles of the model and across them. For example, judgescould be canvassed for their understanding of causality, legal decisions

rendered that give good scope to the concept can be catalogued andcompared, admissibility decisions can be examined for their consid-eration of causality factors, differences across jurisdictions in terms ofwhether pre-existingmental health factors are included or excluded inevaluating causality can be examined for their effects on monetaryawards for sustained mental health injuries and in disabilitydeterminations. The approach different mental health professionstake in arriving at conclusions on causality can be examined. Themanner in which defense and plaintiff attorneys deal with causalitycan be examined, and the same can be undertaken with experts whoare hired by them, and face each other across the adversarial divide.For example, how would a sample of defense mental health expertsdeal with standardized series of ambiguous cases in terms of theircausality, and howwould they differ in these regards from a sample ofplaintiff experts? Moreover, how would their links to the industryinfluence their approach to the research cases—would thosewhoworkespecially one side compared to the other differ in their approachcompared to those with a more equitable practice? Would there begender differences, both in terms of the experts' responses to the casesand in terms of how they approach the caseswhen the index survivorsare male or female? Similar questions can be asked about culturaldifferences, age differences, and so on.

In terms of the research presented in court, it could be examined forbiases related to the concept of causality and also biases of theresearchers, such as whether they reveal their financial conflicts ofinterest, if any, and whether they reveal that the research had beenundertaken expressly for court purposes, had that been the case. Forexample, there are new rules for publishing in the medical andpsychological fields that require disclosure of financial interest. Thepublications of researchers who have published both before and afterthe required disclosure policies could have them compared fordisclosure, and also for the substance of their publications and theirconclusions. Moreover, judges and mock juries could be asked whatcredence they give to the publicationswithout disclosure, now that thedisclosures are coming out in more recent publications. Also, do triersof fact give the same weight to publications with full disclosure andthose not requiring any, that is, does the presence of a conflict ofinterest automatically diminish the quality of the publication in theeyes of judges and juries, or does the forthrightness help mitigate anyperception of bias.

Finally, how does the insurance and other related industrieslobby for their self-perceived needs in passing and altering laws thatdeal with causality, such as for MVAs and disability determinations?At the same time, how do trial lawyers lobby? How does thegovernment try to deal with fraud in the area? Can mental healthprofessionals deal adequately with malingering, and is attorneycoaching quite effective? Are the criteria for malingering espousedby the various psychiatric manuals, case law, practice guidelines, andso on, adequate? How do mental health professionals facingcomplainants with one or two test results indicating symptomexaggeration deal with the matter when there are a fewmore whereperformance was adequate? One could design a study where asample of experts are given standardized cases having such results,and determine whether their plaintiff or defense status influencestheir conclusions. Does the latter group invariably conclude thepresence of malingering or otherwise provide material to minimizeany validity in the causality of the index event at issue? In contrast,does the former group inevitably conclude that there is nomalingering, and offer conclusions that maximize the role of theindex event at issue as a contributing, material factor of thepsychological and functional conditions presented in the standard-ized cases?

These examples illustrate how research can proceed according tothe psycho-ecological model of legal causality. Both product andprocesses factors should be examined, and the whole picture aspresented in the model considered in conducting the research.


Acknowledgements

The author's work has been supported by course leaves granted byboth Glendon College and York University, and editorial grants fromSpringer Science+Business Media.

Thanks to Eric Drogin and Izabela Schultz for reviewing themanuscript.

In terms of possible conflicts of interest, the author has obtainedmost of his attorney referrals and psycholegal referrals from plaintiffrather than defense attorneys and assessment companies.

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