Volume 1, Issue 2

For well over a century now, the law of accidents has offered one of the great testing grounds for theories of legal history. This article draws out three competing theories of history, and in particular of legal history, embedded in narratives of accident law’s development. The first is immanence; the second is contingency; the third is inevitability. The immanence idea is that there is a deep inner logic to the development of the common law of torts. Contingency narratives, by contrast, tell the story of accident law’s development as being accidental: untethered to any deep logic or transhistorical coherence. Finally, inevitability narratives contend that tort and accident law are driven inexorably in one direction or another, not by forces that are immanent or instinct in tort doctrine, but by institutions and economic imperatives that impose strong constraints on the development of the law. The article elaborates further on these three themes, highlights their significance, and shows some of the ways they have animated (consciously or otherwise) important work in the literatures of law and history. Along the way, the article notes the deep tensions between immanence narratives and contingency narratives.

This Comment on John Witt’s Article examines the uses of the different kinds of history of accident law that Witt identifies. I argue that the significant distinction, for those who seek to use accidental law’s history in normative legal scholarship, is between what Witt calls “contingency” and “inevitability” narratives, on the one hand, and “immanence” narratives, on the other hand. The former tend to permit us to argue about accident law’s future, whereas the latter tend to constrain us.

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.

The “idea of private law” has occupied a prominent place in tort theorizing over the past twenty years. To American ears, the idea has a libertarian ring, implying a realm of private freedom beyond the reach of public power. But the idea of “private law” pursued in recent tort theory is different. This strand of tort theory takes an essentially formal view of “private law” as a form of adjudication through which one member of civil society invokes the public power of the state to call another member of civil society to account for breach of an obligation, owed by the latter to the former. In a number of recent, elegant essays, Arthur Ripstein has advanced a particular version of this view, a version distinguished in important part by its enlistment of the political philosophy of John Rawls in support of this project. Tort Law in a Liberal State is a further contribution to this project, summarizing Professor Ripstein’s view and arguing for both the interpretive and the philosophical plausibility of his project.Personal Inviolability and Private Law raises objections to both aspects of Ripstein’s project, and briefly explains why “public law” conceptions of tort are at least as plausible as “private law” ones, both philosophically and interpretively. Interpretively, Professor Ripstein’s conception is open to three serious objections. First, by placing the calling of one member of civil society to account by another at the center of their view, “private law” theorists threaten to place the remedial cart before the substantive horse. Prior to the late nineteenth century, tort existed—to the extent that it existed at all—as an essentially remedial body of law. Our modern law of torts comes into existence with (and by the recognition of) tort as a freestanding law of primary obligation. By placing such great weight both on Kant’s property-centered account of private law and on “private law” theory’s heavily remedial conception of tort, Professor Ripstein’s conception cuts against the fundamental thrust of modern tort law. That thrust is to make obligation central and to treat right and remedy as separable. Ripstein, by contrast, places enormous weight on remedy and takes right and remedy to be indivisible.Second, Tort Law in a Liberal State is, in important part, a brief for the fault principle. Professor Ripstein is right to distinguish between “harm-based” torts such as liability for accidental injury, negligently inflicted and right-based” torts such as trespass, but wrong to claim that “harm-based” liability in tort is always fault-based. This claim leads Professor Ripstein both to a distorted account of tort law’s various strict liabilities and to a fundamental mischaracterization of much of the conduct subject to liability in tort. Professor Ripstein’s recasting of strict liabilities as fault ones commits him to the unfortunate idea that there is something intrinsically wrong with valuable, productive activities, blamelessly conducted. Both the recasting of particular strict liabilities in fault terms, and the righteous condemnation of risk to which this recasting leads, are mistaken. Rylands conduct in the famous case of Rylands v. Fletcher was not wrongful; Atlantic Cement’s conduct in Boomer was not wrongful; and Lake Erie’s conduct in Vincent was not wrongful. In all of these cases, defendant’s only “fault” lay in (unreasonably) failing to make reparation for harm (reasonably) inflicted. More generally and more importantly, risk, like pollution, is not wrongful in itself, and harm is a matter of moral concern even when it issues from blameless conduct. Strict liability is a morally significant and instructive form of liability because it registers the perception that serious harm must sometimes be repaired, even though it has been faultlessly inflicted.Third and last, it is an interpretive mistake to insist that “public” and “private” forms of tort and accident law express fundamentally different values and moral conceptions. “Public law” schemes frequently complement or perfect “private law” ones, and threads of political morality tie private and public accident law institutions together. Zoning law’s relation to nuisance is only one of many cases in point.Professor Ripstein’s philosophical claims are likewise open to objection. For starters, Professor Ripstein’s attachment to the form of “private law” transforms Kant’s preoccupation with the inviolability of persons into a preoccupation with the formal purity of legal institutions. This is a path to avoid. An accident law faithful to the power of Kant’s philosophy must be give pride of place to the inviolability of our persons, not to the inviolability of our legal forms. That latter path leads to endowing legal rules with the intrinsic value held only by persons. Second, Ripstein’s assertion that Rawls’ theory of justice commits him to the particular institutional form of “private law” is unpersuasive. Famously and explicitly, Rawls’ theory leaves open the choice between capitalism and market socialism. The most natural and plausible reading of his theory of justice shows that it also leaves open the far more modest institutional choice between “private” and “public” law institutions.The final part of Personal Inviolability and “Private Law” briefly suggests that some form of enterprise liability constructed around a conception of commutative justice may, in fact, express the independence, equality and inviolability of democratic citizens more adequately than a “private law” constructed around a conception of corrective justice does. Free and equal citizens have ample reason not to place their rights against one another at the mercy of a “private law” negligence lottery, and to seek surer reparation for serious injury.