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