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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

Abstract:     
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, K39

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Date posted: April 22, 2009 ; Last revised: May 4, 2009

Suggested Citation

Hylton, Keith N., Intent in Tort Law (April 22, 2009). Boston Univ. School of Law Working Paper No. 09-21. Available at SSRN: http://ssrn.com/abstract=1393300 or http://dx.doi.org/10.2139/ssrn.1393300

Contact Information

Keith N. Hylton (Contact Author)
William Fairfield Warren Distinguished Professor, Boston University ( email )
595 Commonwealth Avenue
Boston, MA 02215
United States
617-353-8959 (Phone)
Professor of Law, Boston University School of Law ( email )
765 Commonwealth Avenue
Boston, MA 02215
United States
617-353-8959 (Phone)
617-353-3077 (Fax)
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