TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Tuesday, March 1, 2011

Hylton on Property Rules and Defensive Conduct in Tort Theory

Keith Hylton (Boston University) has posted to SSRN Property Rules and Defensive Conduct in Tort Law Theory.  The abstract provides:

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.


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