Boston University School of Law


Property Rules and Defensive Conduct in Tort Law Theory

Keith N. Hylton

Boston University School of Law Working Paper 11-09


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

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Suggested Citation:

Keith N. Hylton, "Property Rules and Defensive Conduct in Tort Law Theory," forthcoming, Journal of Tort Law (2011).

Contact Information

Keith N. Hylton

Boston University School of Law
765 Commonwealth Avenue
Boston, MA 02215