Tuesday, March 1, 2011
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.