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.

Size: 116KB
Est. download time @ 28.8K: 4 seconds

Adobe Acrobat Reader v3.01 or greater is required to view this paper.
To obtain a free copy, click the button below

Keith N. Hylton Contact Information

knhylton@bu.edu
Boston University School of Law
765 Commonwealth Ave
Boston, MA 02215
USA
(617) 353-8959

Presentation and Publication Information:

Professor Hylton presented this paper at the Conference on the Third Restatement of Torts, Vanderbilt University Law School, September 15-16, 2000.

This paper will appear in article format in Vanderbilt Law Review, volume 54, April 2001.

Click here to close this window.