Property Rules and Defensive Conduct in Tort Law Theory

30 Pages Posted: 26 Feb 2011

See all articles by Keith N. Hylton

Keith N. Hylton

Boston University - School of Law

Date Written: February 25, 2011


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.

Keywords: Property Rules, Liability Rules, Defensive Conduct, Necessity, Reasonable Conduct, Tort Defenses, Transaction Costs, Eminent Domain, Trespass, Negligence, Takings

JEL Classification: K00, K11, K13

Suggested Citation

Hylton, Keith N., Property Rules and Defensive Conduct in Tort Law Theory (February 25, 2011). Journal of Tort Law, 2011; Boston University School of Law Working Paper No. 11-09. Available at SSRN:

Keith N. Hylton (Contact Author)

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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