Document Type
Article
Publication Date
2-25-2011
Publisher
Boston University School of Law
Language
en-US
Abstract
What role does defensive conduct play in a utilitarian theory of tort law? Why are rational (as opposed to instinctive) defensive actions permitted by tort doctrine?
To address these questions I will build on the property and liability rules framework. I argue that defensive conduct plays an important role in establishing the justification for and understanding the function of property rules, such as trespass doctrine. I show that when defensive actions are taken into account, property rules are socially preferable to liability rules in low transaction cost settings, because they obviate costly defensive actions. I extend the framework to provide a positive theory of defense-related doctrines in tort law.
Recommended Citation
Keith Hylton,
Property Rules and Defensive Conduct in Tort Law Theory
,
in
No. 11-09
Boston University School of Law Working Paper
(2011).
Available at:
https://scholarship.law.bu.edu/faculty_scholarship/440
Comments
Published as: "Property Rules and Defensive Conduct in Tort Law Theory," 4:1 art.5 Journal of Tort Law 1 (2011).