LSN: Other Law & Society: Private Law - Intellectual Property (Topic)最新文献

筛选

英文中文

The Relational Contingency of Rights 权利的关系权变

LSN: Other Law & Society: Private Law - Intellectual Property (Topic) Pub Date : 2012-11-09 DOI: 10.2139/SSRN.1990632

Gideon Parchomovsky, Alex Stein

{"title":"The Relational Contingency of Rights","authors":"Gideon Parchomovsky, Alex Stein","doi":"10.2139/SSRN.1990632","DOIUrl":"https://doi.org/10.2139/SSRN.1990632","url":null,"abstract":"In this Article, we demonstrate, contrary to conventional wisdom, that all rights are relationally contingent. Our main thesis is that rights afford their holders meaningful protection only against challengers who face higher litigation costs than the rightholder. Contrariwise, challengers who can litigate more cheaply than a rightholder can force the rightholder to forfeit the right and thereby render the right ineffective. Consequently, in the real world, rights avail only against certain challengers but not others. This result is robust and pervasive. Furthermore, it obtains irrespectively of how rights and other legal entitlements are defined by the legislator or construed by courts. We also show that in many legal areas, such as property law, intellectual property law, insurance law, and criminal law, rightsholders systematically suffer from cost disadvantage vis-a-vis certain categories of challengers who can render their rights virtually unrealizable. After uncovering these problems and analyzing their implications for prevalent understandings of rights in the jurisprudential and economic literatures, we identify mechanisms that our legal system ought to adopt to fend off the threat to the integrity of its rights-based design and bolster the protection afforded by rights. These mechanisms include heightened court fees, fee shifting, punitive damages, and various procedural safeguards. We submit that under the appropriate design, they can go a long way toward countering the strategic abuse of rights.","PeriodicalId":242613,"journal":{"name":"LSN: Other Law & Society: Private Law - Intellectual Property (Topic)","volume":"75 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-11-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114838036","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 5

The Twenty-Fifth Annual John Marshall International Moot Court Competition in Information Technology and Privacy Law: Brief for the Respondent (Best Brief) 第25届约翰·马歇尔国际信息技术与隐私法模拟法庭竞赛:答辩人摘要(最佳摘要)

LSN: Other Law & Society: Private Law - Intellectual Property (Topic) Pub Date : 2006-10-28 DOI: 10.2139/SSRN.2816702

T. T. Hsieh, Jennifer Lewin, Jerome C. Pandell

引用次数: 0

首页上一页