1. For an overview of these developments, see G. Edward White, Tort Law in America (expanded ed. 2003), esp. chs. 3–6 and 8. For a particularly eloquent indictment of tort as the scene of revolutionary developments, see Priest, George L., The Invention of Enterprise Liability, 14 J. Legal Stud. 461 (1985)CrossRefGoogle Scholar.

2. See Gregory, C. Keating, The Theory of Enterprise Liability and Common Law Strict Liability, 54 Vand. L. Rev. 1285 (2001)Google Scholar; and Priest, supra note 1.

3. See White, supra note 1, chs. 8, 9.

4. “[C]ost to an economist is a forward-looking concept. ‘Sunk’ (incurred) costs do not affect a rational actor's decisions. . . . Rational people base their decisions on expectations of the future rather than on regrets about the past. They treat bygones as bygones.” Richard Posner, The Economic Analysis of Law (7th ed. 2007), at 7.

5. “I take it as axiomatic that the principal function of accident law is to reduce the sum of the costs of accidents and the costs of avoiding accidents.” Guido Calabresi, The Costs of Accidents (1970), at 26. See also Robert Cooter & Thomas Ulen, Law and Economics (5th ed. 2007), at 359 (refining the criterion to include administrative costs).

6. Jules Coleman, The Practice of Principle (2001), at 9, 36. The first passage continues: “The central concepts of tort law—harm, cause, repair, fault, and the like—hang together in a set of inferential relations that reflect a principle of corrective justice.” The principle of corrective justice “states that individuals who are responsible for the wrongful losses of others have a duty to repair th[os]e losses.” Id. at 15. Ernest Weinrib advances a similarly influential though not identical thesis that also places corrective justice at the center of tort scholarship. See Ernest J. Weinrib, The Idea of Private Law (1995).

7. See Goldberg, John, The Constitutional Status of Tort Law: Due Process and the Right to a Law for the Redress of Wrongs, 115 Yale L.J. 524 (2005), at 601–605Google Scholar; and Zipursky, Benjamin C., Civil Recourse, Not Corrective Justice, 91 Geo L.J. 695 (2003), at 754Google Scholar. One virtue of the civil-recourse view is that it is more sensitive to the diversity of remedies available in tort than corrective-justice theory is. See Zipursky, supra, at 710–714. A second virtue is that civil-recourse theory places much more weight on tort law's primary conduct norms. Nonetheless, the view chooses to emphasize “civil recourse” as the master feature of tort law and pitches its critique of corrective-justice theory on the claim that corrective-justice theory misconceives tort law's remedial structure. If the argument of this paper—that substantive obligations to avoid inflicting harm have priority over remedial responsibilities to set matters right—is correct, civil-recourse theory itself suffers from a mistake of emphasis. While civil-recourse theory is correct to say that breaches of primary tort obligations empower plaintiffs to seek redress from those who have wronged them, this power is parasitic on the failure to comply with the primary obligation of harm avoidance in the same way that the duty of repair is. In my view, both of these remedial aspects of tort are among the “successive waves of duty” generated by the right to the physical integrity of one's person. That right underlies and justifies tort's primary obligations. Breach of those primary obligations brings those remedial aspects of tort into play. See infra note 52 and accompanying text.

8. Scott Hershovitz, for example, stresses the remedial role of tort as an institution and as a process through which we hold others to account and express our mutual answerability to one another; Hershovitz, Scott, Harry Potter and the Trouble with Tort Theory, 63 Stan. L. Rev. 67 (2010)Google Scholar, at 95–96 (arguing that corrective justice often requires explanation and apology as well as the repair of wrongful losses). Jason Solomon develops similar ideas; Solomon, Jason M., Equal Accountability through Tort Law, 103 Nw. U. L. Rev. 1765 (2009)Google Scholar.

9. Weinrib, supra note 6, at 56, 71, 77, 142. See also id. at 213 (“Corrective justice represents the integrated unity of doer and sufferer.”).

10. Id. at 58.

11. See, e.g., Epstein, Richard, A Theory of Strict Liability, 2 J. Legal Stud. 151 (1973)CrossRefGoogle Scholar (applying the concept to an essentially causal form of liability). Fault is indispensable in Weinrib's account and is dispensed with by Epstein's. George Fletcher, for his part, applies the label “corrective justice” to a theory of liability for nonreciprocal risk imposition; Fletcher, George P., Fairness and Utility in Tort Theory, 85 Harv. L. Rev. 537 (1972)CrossRefGoogle Scholar. Catherine Wells takes the term to be concerned essentially with the process through which we should and in fact do determine claims of right between persons in civil society; Wells, Catherine Pierce, Tort Law as Corrective Justice: A Pragmatic Justification for Jury Adjudication, 88 Mich. L. Rev. 2348 (1990)CrossRefGoogle Scholar. Jules Coleman takes corrective justice to require “ individuals who are responsible for the wrongful losses of others . . . to repair th[os]e losses”; Coleman, supra note 6, at 15. See also Perry, Stephen R., The Moral Foundations of Tort Law, 77 Iowa L. Rev. 449 (1992)Google Scholar, at 506–507 (taking the task of corrective-justice theory to specify when the law may legitimately shift losses from one citizen to another); Arthur Ripstein, Equality, Responsibility, and the Law (1999) (taking the principle of corrective justice to specify when the state may justifiably force the transfer of one person's loss to another by means of compensatory payment); Wright, Richard W., Actual Causation v. Probabilistic Linkage: The Bane of Economic Analysis, 14 J. Legal Stud. 435 (1985)CrossRefGoogle Scholar, at 435 (corrective-justice theories “hold that, as a matter of individual justice between the plaintiff and the defendant, the defendant who has caused an injury to the plaintiff in violation of his rights in his person and property must compensate him for such injury, whether or not imposition of liability will further some collective social goal”); Schroeder, Christopher, Corrective Justice and Liability for Increasing Risks, 37 UCLA L. Rev. 439 (1990)Google Scholar, at 449–450 (identifying corrective-justice theory with three requirements: “action-based responsibility,” “just compensation,” and “internal financing of compensation”); and Benson, Peter, The Basis of Corrective Justice and Its Relation to Distributive Justice, 77 Iowa L. Rev. 515 (1992)Google Scholar.

12. See the text accompanying notes 14 to 16 infra for an argument of this kind.

13. See Coleman, Jules, The Practice of Corrective Justice, in Philosophical Foundations of Tort Law 53 (Owen, David G. ed., 1995)Google Scholar, at 56–57. Wrongdoing understood as wrongful conduct is also essential to Weinrib's theory of corrective justice in tort. See Weinrib, supra note 6, at 140–142, 197–198.

14. Posner, Richard A., The Concept of Corrective Justice in Recent Theories of Tort Law, 10 J. Legal Stud. 187 (1981)CrossRefGoogle Scholar, at 201.

15. Id.

16. Without the assumption that tort law is otherwise efficient, this argument does not go through. See Gardiner, John, Backwards and Forwards with Tort Law, in Law and Social Justice 255 (Campbell, Joseph Keim ed., 2005)Google Scholar, at 269–270.

17. Coleman, Practice of Corrective Justice, supra note 13, at 62.

18. These arguments differ in important ways. Chief among these differences is Weinrib's insistence on the autonomy of tort. Tort adjudication appears to be an entirely autonomous institution whose principles are given by the form of tort law, especially the form of tort adjudication; they neither need nor have any further justification. This is epitomized by Weinrib's oft-cited remark that “private law is just like love.” Weinrib writes “Explaining love in terms of extrinsic ends is necessarily a mistake, because love does not shine in our lives with the borrowed light of an external end. Love is its own end. My contention is that, in this respect, private law is just like love.” Cf. Weinrib, supra note 6, at 6. Compare with id. at 22–24, and id. at 206–208 (discussing formalism, immanence, and the autonomy of private law).

19. Coleman's and Weinrib's views diverge in certain respects, especially over the autonomy of tort law. To get a well-defined conception on the table, I therefore take Coleman's writings as my principal example of a theory of tort that holds that corrective justice is the sovereign principle of the practice. This choice means that not everything I say applies to Weinrib's view nor to other remedial theories of tort. On the one hand, Weinrib's conception of tort as being about “wrongs,” not “wrongful losses,” places his view closer to the view of this paper. On the other hand, his development of that idea mistakenly (in my view) tries to reverse engineer the wrongs out of the remedies. See infra note 70. John Goldberg's and Ben Zipursky's “civil recourse” view also emphasizes the remedial aspect of tort, stressing that the state is obligated to provide a mode of “civil recourse.” I cannot examine their view here, except to say that its thesis about the obligations of the state appears less a rival and more a complement to the corrective justice, which emphasizes the responsibilities of the parties. See Hershovitz, supra note 8, at 102, n.105.

20. “There is a basic pretheoretic distinction between misfortunes owing to human agency and those that are attributable to no one's agency. The traditional philosophical distinction between corrective and distributive justice reflects, among other things, this pretheoretical distinction among kinds of misfortune.” Coleman, Practice of Principle, supra note 6, at 44 (footnote omitted).

21. Isaiah Berlin quotes Jean-Jacques Rousseau's famous remark, “The nature of things does not madden us, only ill-will does”; I. Berlin, Two Concepts of Liberty (1958), at 2. This appears to be Berlin's own translation of a passage in Rousseau's Emile. See Rousseau, J., Emile, in 4 Oeuvres Complete, 320 (Gagnebin, B. & Raymond, M. eds., 1959)Google Scholar. Rawls follows Rousseau's lead here in explicating what he calls “the sense of justice.” See Rawls, J., Collected Papers (Freeman, S. ed., 1999)Google Scholar, at 96–116. See also Strawson, P.F., Freedom and Resentment, in Studies in the Philosophy of Thought and Action 71 (1968)Google Scholar (showing that “reactive attitudes” such as resentment are fundamental to our sensibilities and cannot be accounted for by instrumentalism).

22. Coleman, Practice of Principle, supra note 6, at 66–67.

23. See Weinrib, supra note 9.

24. Id. at 10.

25. Jules Coleman, Theories of Tort Law, Stanford Encyclopedia of Philosophy (2003) (“From the normative point of view, the most basic relationship in torts is that between the injurer and the victim whom he has wronged.”).

26. Coleman, Practice of Principle, supra note 6, at 16. Cf. Coleman, Theories, supra note 25, sec. 3 (giving “[t]he bilateral structure of a tort suit—the fact that victims sue those they identify as their injurers and do not instead seek repair from a common pool of resources [as is the case in New Zealand]” as an example of a structural feature of tort law.).

27. For Weinrib, this relationship expresses the “unity of doing and suffering,” the intrinsic moral salience of the doer of harm as someone specially responsible for the harm that she has wrongly done. Weinrib's view appears more metaphysical than Coleman's in that it appears to take the structure of tort law to reflect an essential and eternal form of human interaction.

28. Hard-pressed, but not without resources. It may be, as Coleman recognizes, that administrative costs (e.g., search costs) make tort litigation as it now exists a far more competitive institutional mechanism for inducing optimal accident precaution than it appears to be at first glance. See Coleman, Practice of Principle, supra note 6, at 18–20.

29. Id. at 14–21, especially at 21. Weinrib likewise argues that extrinsic goals cannot make sense of the bipolar relationship between plaintiff and defendant and that the relationship must be understood in terms of an immanent juridical relationship. See Weinrib, Ernest, Understanding Tort Law, 23 Val. U. L. Rev. 485 (1989)Google Scholar; Weinrib, supra note 6, at 37–38, 142, 212–213.

30. Weinrib, supra note 6, at 9–10. See also Coleman, Jules, The Economic Structure of Tort Law, 97 Yale L.J. 1233 (1988)CrossRefGoogle Scholar. In conjunction with the basic structural features of tort adjudication, these concepts form what Coleman calls the pretheoretic core of tort law; Coleman, Practice of Principle, supra note 6, at 15 n.2.

31. Coleman, Practice of Principle, supra note 6.

32. Id. at 34–36.

33. Id. at 23.

34. See, e.g., id. at 15, 36 (emphasis added).

35. The second clause of this sentence refers to circumstances where tort law protects autonomy rights. Some batteries, trespasses, and conversions are cases in point. The last clause of the sentence describes the general character of strict liability in tort. For the sake of convenience, I refer to primary duties as “duties of harm avoidance,” even though duties of harm avoidance are only the most common kind of primary duty in tort. The distinction between primary or substantive legal norms and remedial ones bears on tort in a particular form, but it is a general distinction. See, e.g., Hart, Henry M. Jr., & Sacks, Albert M., The Legal Process (Eskridge, William N. Jr., & Frickey, Philip P. eds., 1994)Google Scholar, at 122 (emphases in original) explaining the general distinction in the following way:

The distinction appears to be especially prominent in tort theory, in part because corrective-justice conceptions invite the objection I am developing here. See, e.g., Sheinman, Hanoch, Tort Law and Corrective Justice, 22 Law & Phil. 21 (2003)Google Scholar, at 32–34. Its importance is also due to the fact that tort has had to shake off the worry that it is not a freestanding body of law but a remedial appendage to other bodies of law. See Grey, Thomas C., Accidental Torts, 54 Vand. L. Rev. 1225 (2001)Google Scholar, at 1242–1244.

36. This possibility was suggested to me by both Martin Stone and Arthur Ripstein.

37. See California Vehicle Code § 22352(a)(2). Not all tort duties are sensitive to the numbers. While greater precautions may be necessary to make a skyscraper safe, the fact that skyscrapers house more people than single-family homes is not a reason to make the homes less safe.

38. See Robert Stevens, Torts and Rights (2007), at 328.

39. Lucchese v. San Francisco–Sacramento Railroad, Co., 289 P. 188 (Cal. 1930).

40. Less obviously, omnilaterality affects remedial responsibility. Scott Hershovitz perceptively observes that tort is an institution of mutual answerability. Within broad limits of good faith, anyone can call anyone else to account for tortiously wronging them. See Hershovitz, supra note 8, at 101–102. This democratic form of mutual answerability depends in important part on the omnilaterality of tort obligations.

41. For observations along these lines, see MacCormick, Neil, The Obligation of Reparation, in Legal Right and Social Democracy 212 (1981)Google Scholar; and Raz, Joseph, Personal Practical Conflicts, in Practical Conflicts: New Philosophical Essays 182 (Baumann, Peter & Betzler, Monica eds., 2004)Google Scholar. This line of argument is developed powerfully by John Gardner and dubbed “the continuity thesis”; John Gardner, What Is Tort Law For? Part I: The Place of Corrective Justice, University of Oxford Legal Research Paper Series, January 2010.

42. Suppose, for example, that Arthur punches Jules in the nose without provocation, excuse, or justification. Arthur has battered Jules, breaching his obligation not to do so and violating Jules's right that he not do so. By battering Jules, Arthur has neither discharged his obligation not to batter Jules nor relieved himself of the responsibility to comply with that obligation. Arthur is still bound by the obligation that he has breached, but he has placed himself in a position where he cannot comply fully with its commands. Now the best that Arthur can do is to repair the harm. His duty of repair falls out of his failure to discharge his duty not to harm Jules wrongly in the first place.

43. The position in the text exaggerates in one important respect: if there were no tortious wrongs, the common law of torts could not develop, because it develops through adjudication. This collateral benefit of tortious wrongs is not, however, a reason that justifies their commission. It is merely a loss caused by their (hypothetical) disappearance.

44. See, e.g., Smothers v. Gresham Transfer, Inc., 23 P.3d 333, 348, 356 (2001); Hart & Sacks, supra note 35.

45. See, e.g., Sunstein, Cass & Stewart, Richard, Public Programs and Private Rights, 95 Harv. L. Rev. 1193 (1982)Google Scholar. On amercement, see Massey, Calvin R., The Excessive Fines Clause and Punitive Damages: Some Lessons from History, 40 Vand. L. Rev. 1233, 1251–52 (1987)Google Scholar; Browning-Ferris Indus. of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 286–92 (1989) (O'Connor, J., dissenting). For a brief but acute explanation of the relation of all of this to the emergence of tort, see Tom Grey, Holmes on Tort (n.d.), at 18–22 (unpublished manuscript) (on file with author).

46. “Generally an injunction will lie to restrain repeated trespasses.” Planned Parenthood of Mid-Iowa v. Maki, 478 N.W.2d 637, 639 (Iowa 1991). See generally Dan Dobbs, Law of Remedies: Damages, Equity, Restitution (1993), ch. 5 (noting, inter alia, that a plaintiff may be entitled to an injunction prohibiting a recurring trespass).

47. The award of punitive damages in Jacque v. Steenberg Homes, Inc., 563 N.W.2d 154 (Wis. 1997), enforces the right to exclusive control by stripping the one-shot, harmless trespass in that case of the economic advantage that made its commission by the defendant rational. Defendant had dragged a trailer home across plaintiff's snow-covered property without plaintiff's permission. Because its trespass did no harm, defendant was otherwise liable only for nominal damages.

48. Marbury v. Madison famously holds that “the very essence of civil liberty . . . consists in the right of every individual to claim the protection of the laws, whenever he receives an injury”; Marbury v. Madison, 5 U.S. 137, 163 (1803). That holding invoked Blackstone's claim that “it is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit or action at law wherever that right is invaded.” “Every right, when withheld, must have a remedy, and every injury its proper redress”; id. (quoting Blackstone, Commentaries). Blackstone himself was following Coke. See, e.g., 1 William Blackstone, Commentaries on the Laws of England *56; 2 Edward Coke, Institutes of the Lawes of England *55–56; chs. 39–40 of the Magna Carta. The remedies clauses found in many American state constitutions are a direct expression of the maxim that “for every right there must be a remedy.” See generally Smothers, supra note 44.

49. See Smith, Jeremiah, Sequel to Workmen's Compensation Acts, 27 Harv. L. Rev. 235 (1914)CrossRefGoogle Scholar, at 344 (arguing that the workmen's compensation acts were organized on the principle of strict liability, which could not be reconciled with the fault liability of the common law, and prophesying that the common law of torts would be reconstructed to be more compatible with the normative logic of workers’ compensation). For further discussion, see Keating, Gregory C., The Theory of Enterprise Liability and Common Law Strict Liability, 54 Vand. L. Rev. 1285 (2001)Google Scholar

50. Historically, the law of tort has been preoccupied with physical harm and thus with the right to physical security. Over time, however, the law of torts has come to grant more protection against psychological harm. See G. Edward White, Tort Law in America (1985), at 102–106, 173–176 (discussing the expansion of liability for invasion of privacy and infliction of emotional distress). Thus the right that the text is referring to has transformed from a right to physical integrity toward a right to physical and some psychological integrity. For simplicity, I generally speak of this right as the right to physical or bodily integrity or security.

51. J. Waldron, Rights in Conflict, in Liberal Rights: Collected Papers 1981–1991 (1993), at 203, 212 (explaining why “rights . . . should be thought of, not as correlative to single duties, but as generating a multiplicity of duties.”).

52. This last point is emphasized by the “civil-recourse theory” of John Goldberg and Ben Zipursky. See Goldberg, supra note 7; and Zipursky, supra note 7. On the view of “civil recourse” presented in the text, it is essentially complementary to—not competitive with—corrective justice. Both involve secondary responsibilities necessary to institute effectively the primary duties of tort law.

53. Restatement (Second) of Torts, § 1 cmt. d (1965). The right to bodily security thus grounds diverse tort obligations. I am grateful to Mark Geistfeld for calling my attention to this comment.

54. Jules Coleman, Risks and Wrongs 395 (2002). The general idea of torts as wrongs is Blackstonian. Blackstone described acts that deprived people of rights as “wrongs.” 3 Blackstone, Commentaries, *116, and explained that the remedial part of the law provides for the redress of wrongs. 1 Blackstone, Commentaries, *54. Whenever the common law recognized a right or prohibited an injury it also gave a remedy, initiated by filing the appropriate writ. 3 Blackstone, Commentaries, *123.

55. This statement may need to be qualified in the case of strict liability. In important cases of strict liability, justifiable harm is done, and the basic reason for imposing liability is to prevent the defendant from loading the cost of its justified conduct off on the plaintiff who does not benefit proportionately from that conduct. This raises the question of whether damages serve a corrective or a commutative role. They serve a corrective role if they rectify a wrong; a commutative one if they align burden and benefit. See the discussion in the text at notes 83–84, infra.

56. I borrow the term “sovereignty-based” from Ripstein, Arthur, Beyond the Harm Principle, 34 Phil. & Pub. Aff. 216 (2006)Google Scholar. He is not responsible for my usage. The shorthand distinction between “harm-based” and “sovereignty-based” torts is not meant to imply that the former do not involve rights whereas the latter do. The point, rather, is that some tort rights are grounded in harm, whereas others are grounded in autonomy. To put it in a more cumbersome way, we might call these torts “autonomy-rights-based torts” and distinguish them from “harm-rights-based torts.”

57. See Mohr v. Williams, 104 N.W. 12 (Minn. 1905); Kennedy v. Parrott, 90 S.E.2d 754 (N.C. 1956). This prohibition against unconsented invasive medical procedures is a different aspect of the tort of battery.

58. See, e.g., Longenecker v. Zimmerman, 267 P.2d 543, 545 (Kan. 1954).

59. See supra note 46, and accompanying text.

60. Ernest Weinrib takes this broader view of the matter because he thinks of correlativity of right and duty as the essence of corrective justice. See Weinrib, supra note 6, at 122–126. Restitution does corrective justice even though it involves wrongful gain, not wrongful loss, because it involves breach of duty correlative to plaintiff's right. Id. at 140–141, 197–198. Weinrib's broad conception of corrective justice also encompasses contract damages. Id. at 136–140.

61. See generally L. Smith, Corrective Justice and Public Law (paper presented at the Obligations V Conference: Rights and Private Law, University of Oxford, July 14–16, 2010).

62. See Fuller, Lon L. & Perdue, William R. Jr., The Reliance Interest in Contract Damages I, 46 Yale L.J. 52 (1936)CrossRefGoogle Scholar; and cf. Friedmann, Daniel, The Performance Interest in Contract Damages, 111 Law Q. Rev. 628 (1995)Google Scholar; Sheinman, supra note 35, at 61–62.

63. Restatement (Second) of Torts § 1 cmts. b and d (1965), cited supra note 53.

64. “Sovereignty-based” torts protect the exercise of powers, whereas “harm-based” torts ground duties whose protections are enjoyed. This distinction is drawn nicely in Weinar, Leif, The Nature of Rights, 33 Phil. & Pub. Aff. 223 (2005)CrossRefGoogle Scholar, at 233.

65. Coleman anticipates this criticism and argues that retributivism is a defensible explanatory and justificatory theory of punishment. Coleman, Practice of Principle, supra note 6, at 32–33. He is quite right about this, but the observation is beside the point. Coleman claims not that corrective justice is a defensible theory of tort remedies, but that “tort law is best explained by corrective justice” because “at its core tort law seeks to repair wrongful losses.” See supra note 6, and accompanying text. Just as retributivism is only plausible as a theory of criminal punishment, so too corrective justice is only plausible as a theory of tort remedies. Cf. Sheinman, supra note 35, at 46–47.

66. The exact content of what we owe to each other in the way of tort obligations depends on the jurisdiction in which we find ourselves, but the basis of our varying obligations is the same, namely, our equal personhood.

67. Coleman, Practice of Principle, supra note 6, at 32.

68. See infra note 82, and accompanying text.

69. “The primary objects of the law are the establishment of rights, and the prohibition of wrongs,” the former being “necessarily prior” to the latter. 3 William Blackstone, Commentaries *1–*2 (1766). See also Restatement (Second) of Torts, supra note 53.

70. Weinrib appears to deny this. He writes: “Corrective justice serves a normative function: a transaction is required, on pain of rectification, to conform to its contours.” Corrective justice thus appears to be about the righting of corrective injustices (actions that, say, disturb “the equality between the parties”). Weinrib, supra note 6, at 76. This is, as John Gardner says, a “nonstarter”; Gardner, supra note 41, at 28. See also Sheinman, supra note 35, at 34–36. With the possible exception of strict liability wrongs, where the wrong consists in harming without repairing, torts are wrongs—not corrective injustices.

71. Theorists are split on this point. Stephen Perry, for one, thinks that rights to the liberty and integrity of our person precede questions of distributive justice: “At least within nonconsequentialist moral theory, it makes sense to think of this [security] interest as morally fundamental, and hence as falling outside the purview of distributive justice; our physical persons belong to us from the outset, and are accordingly not subject to a social distribution of any kind.” Perry, Stephen, On the Relationship between Corrective Justice and Distributive Justice, in Oxford Essays in Jurisprudence 237 (Horder, Jeremy ed., 4th ser., 2000)Google Scholar, at 239. On this conception, the question of what rights people have is a question of justice but not a question of distributive justice. Other usages of the term distributive justice appear to include within its domain the question of what rights people have, on the ground that this is one kind of question about the distribution of entitlements. References to rights as concerned with the distribution of freedom in Hart, H.L.A., Are There Any Natural Rights?, 64 Phil. Rev. 175 (1955)CrossRefGoogle Scholar, at 178, fit this description, as does John Rawls's usage. See John Rawls, A Theory of Justice (rev. ed. 1999) (1971), at 54 (“the basic structure of society distributes certain primary goods. ;. ;. ;. the chief primary goods at the disposition of society are rights, liberties, and opportunities, and income and wealth.”) (emphasis added). For an example of distributive justice being used in this broader sense in connection with private law, see Cane, Peter, Corrective Justice and Correlativity in Private Law, 16 Oxford J. Legal Stud. 471 (1996)CrossRefGoogle Scholar, at 481.

72. This broad conception of corrective justice is similar to the view taken in Honoré, Tony, The Morality of Tort Law—Questions and Answers, in Responsibility and Fault 67 (1999)Google Scholar, at 73 (“On a wide view, [corrective justice] requires those who have without justification harmed others by their conduct to put the matter right.”). There are thus connections between the view of tort that I am developing here and the broad view of tort's remedial operation taken in Hershovitz, supra note 8.

73. Keel v. Banach, 624 So.2d 1022, 1029 (Ala. 1993).

74. Restatement (Second) of Torts § 903 cmt. a (1979).

75. Peggy Radin emphasizes the expressive dimension of damages in tort. See Radin, Margaret Jane, Compensation and Commensurability, 43 Duke L.J. 56 (1993)CrossRefGoogle Scholar. Scott Hershovitz emphasizes the performative view of tort's remedial operation; see Hershovitz, supra note 8. The civil-recourse point that giving the plaintiff “satisfaction” was once taken to be the purpose of tort damages also has affinities with the broad view of corrective justice being taken here. See Goldberg, John C.P., Two Conceptions of Tort Damages: Fair v. Full Compensation, 55 DePaul L. Rev. 435 (2006)Google Scholar, at 440–445.

76. Honoré, supra, note 72.

77. Cf. Sheinman, supra note 35, at 50–51 (discussing the doctrine of precedent in tort).

78. This is ironic, because strict liability “duties” are the only primary duties that might be plausibly described as corrective; they involve obligations not to harm without repairing.

79. Vincent v. Lake Erie Transp. Co., 124 N.W. 221 (Minn. 1910).

80. The identification of tort with conduct-based wrongs is not particular to Coleman. Weinrib holds the same kind of view, a fact vividly illustrated by his criticisms of strict liability as a norm of conduct that condemns “any penetration of the plaintiff's space”; Weinrib, supra note 6, at 177. For their part, Goldberg and Zipursky write that “[a]lthough by convention, strict liability for abnormally dangerous activities clearly is part of what lawyers define as ‘tort law,’ strictly speaking it does not belong in this department”; Goldberg, John C. P. & Zipursky, Benjamin C., The Oxford Introductions to U.S. Law: Torts 267 (2010)Google Scholar. Any account of tort law that specifies the constitutive features of tortious wrongs in such a way that the account cannot acknowledge—or properly characterize—strict liability in tort is, for that reason alone, seriously defective and in need of revision.

81. Coleman, Practice of Principle, supra note 6, at 36.

82. Coleman, Risks, supra note 54, at 417–429.

83. This “private eminent domain” conception of strict liability may make its first appearance in American tort theory in the writings (some famous and some obscure) of Oliver Wendell Holmes. These writings are cited and discussed in Grey, Accidental Torts, supra note 35, at 1275–1281; and at greater length in Grey, Holmes on Torts, supra note 45. Two other classic statements are Bohlen, Francis H., Incomplete Privilege to Inflict Intentional Invasions of Interests of Property and Personality, 39 Harv. L. Rev. 307 (1926)CrossRefGoogle Scholar; and Keeton, Robert E., Conditional Fault in the Law of Torts, 72 Harv. L. Rev. 401 (1959)CrossRefGoogle Scholar.

84. A complication lurks here. Because we believe harm may be done justifiably in cases of strict liability, and because the basic reason for imposing such liability is to prevent the defendant from loading the cost of its justified conduct off on the plaintiff who does not benefit proportionately from that conduct, there is a question of whether damages serve a corrective or a commutative role. They serve a corrective role if they rectify the wrong; a commutative one if they align burden and benefit. We cannot purse this question here.

85. The concept of “duties to succeed” is developed in Gardner, John, Obligations and Outcomes in the Law of Torts, in Relating to Responsibility: Essays for Tony Honoré (Cane, P. & Gardner, J. eds., 2001)Google Scholar.

86. Mohr v. Williams, 104 N.W. 12 (Minn. 1905).

87. This is Robert Keeton's vocabulary. See Keeton, supra note 83.

88. Coleman, Jules, Facts, Fictions, and the Grounds of Law, in Law and Social Justice 327 (Campbell, Joseph Keim et al. eds., 2005)Google Scholar, at 329. See also Coleman, Practice of Principle, supra note 6, at 35 n.19 (“The concept of a duty in tort law is central both to strict and fault liability. In strict liability, the generic form of the duty is a ‘duty not to harm someone,’ while in fault, the generic form of a duty is a ‘duty not to harm someone negligently or carelessly.’”).

89. See, e.g., Foster v. City of Keyser, 501 S.E.2d 165, 175 (W. Va. 1997). In Foster, the West Virginia Supreme Court of Appeals reversed the circuit court's imposition of strict liability on a natural gas company for an explosion caused by the escape of gas from one of its transmission lines because “other principles of law—a high standard of care and res ipsa loquitur—can sufficiently address the concerns that argue for strict liability in gas transmission line leak/explosion cases.” Id.

90. Doctrinally, this concern manifests itself most vividly in damages and proximate cause. Punitive damages are sometimes imposed in order to deprive certain kinds of tortious acts of their economic advantage, thereby attempting to assure that the relevant rights will be respected and not priced out by economically rational tortfeasors. See supra note 47, and accompanying text. Proximate-cause cases, fixing the outer perimeter of responsibility for harm tortiously done, often take explicit account of whether the scope of liability is sufficient to enforce the rights at stake. This is especially evident in negligence cases involving pure economic loss and pure emotional harm. See, e.g., Barber Lines v. Donau Maru, 764 F.2d 50 (1st Cir. 1985); Thing v. La Chusa, 771 P.2d 814 (Cal. 1989).

91. One insight deserves special mention, even though we cannot do it justice here. Accidental harm is a social problem, not just a matter of wrongs. Those of us who champion the truth that torts are wrongs need to figure out how to do justice to this insight.

92. For an illuminating account of the way in which criminal law protects our rights in general, see Ripstein, Equality, supra note 11, ch. 5.

93. On an “interest theory” of rights, for example, the task will be to show that the interest of the right-holder is sufficient to justify imposing coercively enforceable duties on others. See Beitz, Charles R., The Moral Rights of Creators of Artistic and Literary Works, 13 J. Pol. Phil. 330 (2005)CrossRefGoogle Scholar, at 335–337 (and sources cited therein).

94. Coleman, Practice of Principle, supra note 6, at 34–35 (“I reject the suggestion that an adequate account of tort practices requires that there be a general theory of primary duties from which we can derive them all systematically. Indeed, I am dubious about the prospects for such a theory. On my view, much of the content of the primary duties that are protected in tort law is created and formed piecemeal in the course of our manifold social and economic interactions.”). Goldberg and Zipursky appear similarly inclined. See Goldberg & Zipursky, supra note 80, at 6, 27–45. Cf. Hershovitz, Scott, Two Models of Tort (and Takings), 92 Va. L. Rev. 1147 (2006)Google Scholar.

95. See Grey, Accidental Torts, supra note 35; and Holmes on Torts, supra note 45.

96. Social contract theory traditionally conceived of the subject in this way. See 1 Blackstone, Commentaries, *125, *129, *134, *138 (explaining that the common law is founded on “absolute” rights to liberty, security, and property). By “absolute,” Blackstone seems to mean what we would call “natural.” For an illuminating discussion, see Grey, Holmes on Torts, supra note 45, at 111–127 (The Prehistory of Torts).

97. The view that tort law is about harm is one of Oliver Wendell Holmes's famous theses, and it has been prominent in the legal academy ever since. See The Common Law, (Sheldon Novak ed., 1991 [original edition 1881], at 144 (“the general purpose of the law of torts is to secure a man indemnity against certain forms of harm to person, reputation, or estate, at the hands of his neighbors, not because they are wrong, but because they are harms.”). Unfortunately, Holmes distinction between“harms” and “wrongs” sets up a false antithesis between the two. On Holmes and harm, see Grey, Accidental Torts, supra note 35, at 1272–1275; and Grey, Holmes on Torts, supra note 45, at 35–38.

98. See, e.g., W. Page Keeton et al., Prosser and Keeton on Torts (5th ed. 1984), at 361. On pure economic loss, see Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303 (1927); Barber Lines, supra note 90.

99. Joel Feinberg, Social Philosophy 26 (1973). The interest account of harm is briefly but clearly deployed in Sheinman, supra note 35; and in Hershovitz, Two Models, supra note 94, at 1161–1168.

100. For a survey and summary of this and other accounts of harms, including the autonomy account endorsed in this paper, see Hanser, Matthew, The Metaphysics of Harm, 77 Phil. & Phenomenological Res. 421 (2008)CrossRefGoogle Scholar.

101. See Shiffrin, Seana Valentine, Wrongful Life, Procreative Responsibility, and the Significance of Harm, 5 Legal Theory 117–148 (1999)CrossRefGoogle Scholar; Shiffrin, Seana Valentine, Harm and Its Significance, 18 Legal Theory (2012)CrossRefGoogle Scholar. Tortious harms, of course, are marked by one more essential property: they are inflicted by some and suffered by others. This is an essential feature of tortious harms, because tort is concerned with what we may demand from each other as a matter of right, and rights hold only against other agents, not against natural forces.

102. Joseph Raz, The Morality of Freedom 412–20 (1986), at 412–420, traces a broader if less intense connection between autonomy and harm: “To harm a person is to diminish his prospects, to affect adversely his possibilities.” Id. at 414. Raz notes explicitly that he is explicating John Stuart Mill's famous “harm principle.” John Stuart Mill, On Liberty (1859).

103. It is, I think, best to recognize that we can both distinguish the two kinds of torts or conflate them, but that we can do this only if we understand harm as serious impairment of agency. If we take a welfarist conception of harm, we will not be able to collapse the distinction.

104. See Keating, Gregory C., Is Negligent Infliction of Emotional Distress a Freestanding Tort?, 44 Wake Forest L. Rev. 1131 (2009)Google Scholar.

105. See, e.g., Spur Indus., Inc. v. Del E. Webb Dev. Co., 494 P.2d 700 (Ariz. 1972) (flies and odor from cattle feedlot held to be a nuisance); Berg v. Reaction Motors Div., Thiokol Chem. Corp., 181 A.2d 487 (N.J. 1962) (noise, vibration, and air blasts from test-firing a rocket engine constituted a nuisance); O'Cain v. O'Cain, 473 S.E.2d 460 (S.C. 1996) (presence of hogs in front of plaintiff's residence was a nuisance).

106. Blackstone counted reputation among the fundamental rights comprising the right of personal security, but the tort may have since become less central in most accounts of the fundamental interests of persons. Blackstone, Commentaries, *129 (“The right of personal security consists in a person's legal and uninterrupted enjoyment of his life, his limbs, his body, health and his reputation.”).