This book has just been released by Oxford University Press, and will soon be available elsewhere. This paper contains the Introduction and Table of Contents.

The 9-9-9 Plan functions as an effective 27 percent payroll tax on wage income. By imposing an effective 27 percent flat tax on wage income, the 9-9-9 Plan would materially raise the tax burden on many low- and middle-income taxpayers, who today face little or no tax under the income tax, and a 15.3 percent effective payroll tax burden. The Plan apparently offers lower tax rates (17.2 percent) for labor income attributable to owner-employees of firms, because they can extract their labor earnings as returns to capital.

The Plan operates as an ersatz variant on standard consumption taxes with respect to capital income, exempting normal returns on equity from tax and imposing tax at an effective 17.2 percent rate on economic rents. Finally, the Plan’s sales tax acts as a one-time tax on existing wealth. The relative undesirability of that consequence depends on what one chooses as the current-law comparable.

Unlike in 1986, when the tax system overflowed with unintended tax shelters that could be cleaned up and traded off against lower rates, modern tax reform must tackle some of the deliberate Congressional subsidy programs baked into the tax code, which is to say, tax expenditures. Of these, the most important to address are the personal itemized deductions. They are extraordinarily costly – about $250 billion/year in forgone tax revenues. And they are inefficient, poorly targeted and unfair.

The personal itemized deductions invariably are described as political “sacred cows.” But they are sacred cows that we can no longer afford to maintain. Either we eliminate these sacred cows, or we allow them to stampede over us.

Incremental income tax reform also must address the corporate income tax, but here there is no choice but a revenue-neutral approach, because the U.S. corporate rate is now a global outlier. A corporate tax reform package should be fashioned along the following lines: (1) Eliminate business tax expenditures; (2) Reduce the corporate tax rate to a rate in the range of 25-27 percent; (3) Tax multinationals on their worldwide income through worldwide tax consolidation. The resulting corporate tax system would represent a huge competitive boost for American domestic firms, would attract inward investment, and would provide a fair tax environment for U.S.-based multinationals.

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.

Corrective justice theorists have argued powerfully that this economic account does not capture the most fundamental fact about tort adjudication, namely, that the reason why we hold defendants liable in tort is that they have wronged their victims and should therefore repair the harm that they have done. You can no more recover from someone in tort by showing only that they are the cheapest cost-avoider with respect to a class of future wrongful losses than you can convict someone of a crime by showing only that their conviction will deter future crime. People are liable in tort when and because they commit tortious wrongs just as they are punishable for crimes when and because they commit those crimes. Deterring cheapest cost-avoiders from committing future harms no more justifies imposing liability in tort than deterring future crime justifies hanging the innocent.

This is a powerful critique of the economic theory of tort, but it overshoots the mark. As an account of tort law, corrective justice puts the cart before the horse. To be sure, reparation looms large in tort. Rights require remedies, and reparation for harm wrongly done is the most common tort remedy. Yet in tort law itself, remedial responsibilities arise out of failures to discharge antecedent responsibilities not to inflict injury in the first instance. Tort is a law of wrongs, not just a law of redress for wrongs. In the first instance, it enjoins respect for people’s rights. Remedial responsibilities in tort are thus subordinate, not fundamental. By itself, the principle that wrongful losses should be repaired is incomplete; its application presupposes an antecedent account of wrongs. Logically and normatively, obligations of repair are dependent on primary obligations. Logically, remedial responsibilities are conditioned on and arise out of failures to discharge primary ones. Normatively, primary responsibilities provide the reason for honoring remedial responsibilities and largely determine the shape of remedial responsibilities. Breaching primary responsibilities leaves those responsibilities undischarged, and puts the breaching party in a position where it is no longer able to discharge its primary responsibilities in the best way possible. Remedial responsibility is thus grounded in the failure to comply with primary responsibility. Repairing harm wrongly done is the next best way of complying with an obligation not to do harm wrongly in the first place. Rights and remedies form a unity in which rights have priority. Corrective justice is thus an essential, but subordinate, aspect of tort.

The Priority of Right over Repair develops this line of criticism of corrective justice theory in detail, and offers an alternative account of tort which places primary norms of harm avoidance and respect for rights at its center. On this conception, tort is—as the corrective justice theorists rightly insist—a law of wrongs, but its distinctiveness lies in the content and character of the wrongs with which it is concerned. At its core, tort is concerned with establishing the autonomy and security of persons in civil society with respect to one another.

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.