Property Rules and Defensive Conduct in Tort Law Theory

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

2011

ISSN

2194-6515

Publisher

De Gruyter Publishing House

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.

Comments

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

Working paper available on SSRN

Recommended Citation

Keith N. Hylton, Property Rules and Defensive Conduct in Tort Law Theory , in 4 Journal of Tort Law (2011).
Available at: https://scholarship.law.bu.edu/faculty_scholarship/440