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The Theory of Tort Doctrine and the Restatement of Torts

22 Pages Posted: 4 Feb 2001  

Keith N. Hylton

Boston University - School of Law

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Abstract

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.

JEL Classification: K00, K13

Suggested Citation

Hylton, Keith N., The Theory of Tort Doctrine and the Restatement of Torts. Vanderbilt Law Review, Vol. 54, April 2001. Available at SSRN: https://ssrn.com/abstract=258774 or http://dx.doi.org/10.2139/ssrn.258774

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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