Torts and the Protection of "Legally Recognized" Interests
The law of torts plays an important role in completing the legal property rights system by defining the extent to which property is protected from harm. It does this by defining the kinds of interests that will be recognized and protected from harm by the courts, the duty of care owed these recognized interests by others, and the manner in which they will be protected through monetary compensation, restitution, or injunction. Together, these three elements of torts define a right in the “bundle of rights” that constitute property. In this paper, we develop a systematic approach to formalizing the nature of the property rights protected by tort law. We use this approach to reexamine the literature on compensation for nonpecuniary damages. This reexamination demonstrates how recognizing tort’s role in defining property rights and having a way of formalizing these rights can provide deeper insight into old questions torts scholarship.
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