Intent in Tort Law
Keith N. Hylton
William Fairfield Warren Distinguished Professor, Boston University; Professor of Law, Boston University School of Law
April 22, 2009
Boston Univ. School of Law Working Paper No. 09-21
This paper, prepared for the 2009 Monsanto Lecture in Tort Jurisprudence, explains intent standards in tort law on the basis of the incentive effects of tort liability rules. Intent rules serve a regulatory function by internalizing costs optimally. The intent standard for battery internalizes costs in a manner that discourages socially harmful acts and at the same time avoids discouraging socially beneficial activity. The intent standard for assault is more difficult to satisfy than that for battery because it is designed to provide a subsidy of a sort to the speech that is often intermixed with potentially threatening conduct. In addition to the optimal internalization goal, transaction costs play a role in the specification of intent requirements. The subtle difference between the intent requirements for trespass and battery can be explained on the basis of transaction costs.
Number of Pages in PDF File: 31
Keywords: intent standards, cost internalization, trespass, battery, assault, mental states, optimal regulation, strict liability
JEL Classification: B21, K00, K13, K39working papers series
Date posted: April 22, 2009 ; Last revised: May 4, 2009
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