Title

Property Rules and Defensive Conduct in Tort Law Theory

Authors

Keith Hylton, Boston Univeristy School of LawFollow

Author granted license

Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International

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.

Comments

Published as: "Property Rules and Defensive Conduct in Tort Law Theory," 4:1 art.5 Journal of Tort Law 1 (2011).

Recommended Citation

Keith Hylton, Property Rules and Defensive Conduct in Tort Law Theory, No. 11-09 Boston University School of Law Working Paper (2011).
Available at: https://scholarship.law.bu.edu/faculty_scholarship/440

SSRN URL

https://ssrn.com/abstract=1769864