The Theory of Tort Doctrine and the Restatement of Torts
Keith N. Hylton
William Fairfield Warren Distinguished Professor, Boston University; Professor of Law, Boston University School of Law
Vanderbilt Law Review, Vol. 54, April 2001
The lack of detailed implications and general failure to come to grips with important features of tort doctrine have been substantial shortcomings in the dominant positive theory framework of Holmes and Posner. I extend the dominant framework below to enable it to justify various intentional tort doctrines, and the specific form and allocation of strict liability rules within tort law. After developing the positive framework, I apply it to the Restatement (Third) of Tort Law. The theory explains many of the detailed provisions and commentary of the Restatement, and identifies one area in which the Restatement (Third) seems inconsistent with tort doctrine. I also discuss the value of positive theory as a part of the Restatement project.
Number of Pages in PDF File: 22
JEL Classification: K00, K13Accepted Paper Series
Date posted: February 4, 2001
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