Tort Law in a Liberal State

Tort law occupies an unusual place in the legal academy. No other doctrinal area is both central to the curriculum and widely disdained. I argue that the root of this disdain is the idea that tort is centrally concerned with remedies. Puzzles about the choice of fault as opposed to strict liability are generated by the thought that tort law is an incoherent mix of blame-based liability and that "pay as you go" system for socially useful activities. Neither of these tasks is easy to reconcile with the broader functions and aspirations of a liberal state. In place of this familiar picture, I argue that tort law is fundamentally about the obligations private persons of within a system of reciprocal limits on freedom, and show that remedies do no more than uphold those limits. This way of thinking about private obligations casts distinctive light on the role of fault within tort law. Harm-based torts, including negligence and nuisance, always have a fault requirement. With this distinction in hand, I look two of the leading examples of “pay as you go” liability. I show that Rylands v. Fletcher contains a fault element, and that Vincent v. Lake Erie is best analyzed as a familiar case of a trespass against property. The paper concludes with some more general reflections on the place of norms of private conduct within a liberal state.