Journal of Tort Law, 2011
30 Pages Posted: 26 Feb 2011
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: 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: https://ssrn.com/abstract=1769864