Intent in Tort Law
31 Pages Posted: 22 Apr 2009 Last revised: 4 May 2009
Date Written: April 22, 2009
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.
Keywords: intent standards, cost internalization, trespass, battery, assault, mental states, optimal regulation, strict liability
JEL Classification: B21, K00, K13, K39
Suggested Citation: Suggested Citation