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

Abstract

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: https://ssrn.com/abstract=1769864

Keith N. Hylton (Contact Author)

Boston University - School of Law ( email )

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