Duty in Tort Law: An Economic Approach

Authors

Keith N. Hylton, Boston University School of LawFollow

Author granted license

Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International

Document Type

Article

Publication Date

12-2006

ISSN

0015-704X

Publisher

Fordham University School of Law

Language

en-US

Abstract

Theories of tort law have focused on the breach and causation components of negligence, saying little if anything about duty. This paper provides a positive economic theory of duty doctrine. The theory that best explains duty doctrines in tort law is the same as the theory that explains strict liability doctrine. The core function of both sets of doctrines is to regulate the frequency or scale of activities that have substantial external effects. Strict liability aims to suppress or tax activities that carry unusually large external costs. Duty doctrines, especially those relieving actors of a duty of care, serve several functions, but one important class encourages or subsidizes activities that carry substantial external benefits. Another class of duty-relieving doctrines serves as complements to property rules. Still another class of duty-relieving doctrines serves to permit markets to function without distortions created by liability.

Comments

Updated with published version of paper on 9/23/22

Working paper available on SSRN

Recommended Citation

Keith N. Hylton, Duty in Tort Law: An Economic Approach , in 75 Fordham Law Review 1501 (2006).
Available at: https://scholarship.law.bu.edu/faculty_scholarship/689