Recommended Reading: Gregory Keating’s Fairness Theory, New Papers on Rylands and Nuisance

Professor Gregory Keating has two new pieces up on SSRN, both illuminating and important.  A quick overly-brief primer: Keating’s fairness theory provides the “moral logic” for treating strict enterprise liability as the modern default rule for tort law.  It requires an enterprise to compensate individuals injured by its risky, yet profitable activities if the victim does not benefit from those activities to the same extent that the enterprise does.  In that sense, strict liability exacts a just price for an enterprise’s freedom to engage in profitable activities where the victim did not similarly enjoy such a liberty but nonetheless suffered injury.  In the abstract included below for Recovering Rylands: An Essay for Bob Rabin (forthcoming DePaul Law Review), Keating celebrates and builds upon Robert Rabin’s article “The Historical Development of the Fault Principle,” providing a moral and historical account of Rylands v. Fletcher’s strict liability alternative to fault liability while recognizing its practical limitations.  After the jump, I will include the abstract for Keating’s Nuisance as a Strict Liability WrongHere is the abstract for Recovering Rylands:

This paper, written for a Clifford Symposium Festschrift for Robert Rabin, comments on his lovely, widely admired, and yet still underappreciated paper The Historical Development of the Fault Principle: A Reinterpretation. Rabin’s paper teaches us something essential about the character and structure of modern tort law at the moment of its genesis, and it reminds us of the even more general truth that what the law does not cover is at least as important as what it does cover. The Historical Development of the Fault Principle is constructed around a simple, but powerful, distinction between fault as a breach of duty and fault as a cause of action. Negligence as a cause of action is an institution, a system of related rules, concepts, principles and policies. This simple but penetrating observation transforms the question of just what is at stake in the conventional thesis that the late nineteenth century was the heyday of “universal fault liability.”

Whether or not fault liability was “universal” at the end of the nineteenth century turns, Rabin teaches, not on whether tort liability for accidental injury is constructed around fault or strict liability. The “universality” of fault liability is, rather, a question about the percentage of the legal landscape for unintentional harm that the institution of negligence liability governs. Building on this point, The Historical Development of the Fault Principle shows that the age of “universal fault liability” is better described as an age where “no duty” predominated. Tort liability – fault liability retreated whenever contract was capable of taking hold of a domain of accidental injury. It retreated both in the presence of contractual relations (in the workplace context) and in the absence of contractual relations (in the product context). Property, contract, and “no duty” all trumped tort. This insight not only changes our understanding of the rise of fault liability; it also provides a powerful rebuttal of the still influential, if waning, view that the common law of torts circa 1870-1905 was economically efficient.

Rabin’s critique leaves intact the thesis that negligence liability itself emerged as a freestanding form of tort liability at the end of the nineteenth century. Prior to that time, negligence was merely the mental element of a number of discrete, nominate torts. Late in the nineteenth century, negligence transforms into a norm of conduct and thereby emerges as a distinctive form of tort liability. This development sets the stage for the expansion of fault liability into the domains of product accidents, landowner liability, and some forms of pure economic and emotional harm. The late nineteenth century thus sets the stage for the “universal fault liability” that it so conspicuously fails to achieve.

Recovering Rylands argues that Rylands v. Fletcher represents a parallel development with respect to strict liability. Rylands generalizes ancient forms of liability in nuisance and trespass into a coherent, general alternative to fault liability. The opinions in the case both articulate strict liability as a general principle of responsibility for harm done and clarify the fundamental perception on which strict liability rests, namely, that harm justifiability inflicted – harm which is unavoidable in the sense that it should be inflicted – can trigger responsibilities of repair. The idea that the justified infliction of harm gives rise to responsibilities of repair stands in sharp contrast to the root premise of fault liability, and accounts for the enduring significance of strict liability as form of legal responsibility for harm done.

After excavating the basis and nature of strict liability in Rylands, the paper traces the ebb and flow of the strand of strict liability that it inspired over the past century and a half. On the one hand, that history shows that fault liability is never universal, though generally dominant. On the other hand, that history suggests that the difficulty of attributing harms to activities without deploying a fault criterion may be a permanent, insurmountable barrier to universal, common law strict liability. Last, but surely not least, Rylands’ articulation of strict liability as a general idea is an essential part of the formative moment of modern tort law that Bob Rabin did so much to help us understand. Adding an account of Rylands is a way of building on his seminal contribution. Nuisance law offers unrivaled instruction about the formal structure and substantive morality of strict liability in tort, and by so doing challenges the dominant theories of tort. On the one hand, the structure and substance of nuisance law do not conform to the economic thesis that tort is a law concerned with the efficient management of externalities. Nuisance law does indeed address harmful spillovers caused by the productive use of land but its governing aim in addressing those spillovers is to reconcile equal, but conflicting, rights. The right to the reasonable use and enjoyment of land is the touchstone of nuisance law and the primary concern of nuisance law is not the broad class of all externalities associated with the use of land, but a circumscribed class of harms that are also rights-violation. Nuisance law attempts to make equal – but conflicting – rights to the reasonable use and enjoyment compatible. Nuisance is a law of harms and rights, not costs and benefits, and it aims to reconcile competing claims fairly, not efficiently.

On the other hand, the law of nuisance confounds the corrective justice conception of tort as a realm of conduct-based wrongs. Negligence liability is a conduct-based wrong par excellence; it predicates responsibility to repair on conduct which unjustifiably inflicts injury. Modern American nuisance law, however, is constructed around a distinction between unreasonable conduct and unreasonable harm, and it insists on reparation for harm justifiably done. Nuisance faults not the primary conduct responsible for doing harm, but a secondary failure to make reparation for harm reasonably done. Nuisance is a canonical “strict liability wrong” and strict liability is, in its most characteristic form, a conditional wrong whose essence lies in failing to volunteer reparation for harm justifiably done. Strict liability in nuisance supposes that an injurer does wrong when it fails to step forward and repair harm rightly inflicted. It is premised both on the principle of fairness that those who benefit from the infliction of harm should also shoulder its burdens, and on the perception that leaving the cost of such harm on the victims who suffer it is shows insufficient respect for the victims’ rights.

Nuisance law has both a coherent overarching structure and tangled, elusive details. Much of this paper is therefore devoted to untangling those details. I try to show that impact – not conduct – is the essence of nuisance, and that the distinctiveness of the field as a form of liability in tort lies in its imposition of strict liability on justified, intentional conduct. The explication and reconstruction of nuisance law leads through a thicket of doctrines which construct nuisance as a realm of reciprocal right and mutual benefit and develop the distinction between unreasonable conduct and unreasonable harm. The paper then takes up perhaps the most important of modern American nuisance cases – Boomer v. Atlantic Cement.

The great achievement of Boomer is to clarify the morality of both unreasonable conduct and unreasonable harm, thereby giving a clear representation of nuisance as a strict liability wrong. Boomer takes harmful conduct to be unreasonable when the harm inflicted might feasibly be avoided – when it might be eliminated without ending or crippling the activity responsible for its infliction. Reasonable harm, by contrast, is harm that should be inflicted; it is the unavoidable side effect of some productive use that we are not prepared to forego. Strict liability in Boomer is thus a morality of responsibility for unavoidable harm, a morality of responsibility for the harmful effects not of wrongful agency but of agency itself. Fairness, Boomer asserts, requires that unavoidable harm be borne by those who inflict it and reap its benefits.

The last part of the paper argues that Boomer’s least appreciated lesson is a lesson about the significance of harm for the law of torts. Corrective justice theorists have stressed the importance of wrongful conduct for the law of torts, casting tort as a law of conduct-based wrong. They have been concomitantly uneasy with strict liability in tort, because strict liability is not predicated on wrongful conduct. Boomer illuminates the competing basis of strict liability in tort. In Boomer, it is the infliction of harm – the serious impairment of agency – not the infliction of harm through wrongful agency, that gives rise to responsibility and reparation. Strict liability challenges negligence because it insists that responsibility for harm done is not at an end when harm is justifiability done. Harm done to others is, in and of itself, a matter of moral concern and legal responsibility.

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