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Pliability Rules

73 Pages Posted: 14 Oct 2008  

Abraham Bell

Bar Ilan University - Faculty of Law; University of San Diego School of Law

Gideon Parchomovsky

University of Pennsylvania Law School; Bar Ilan University - Faculty of Law

Date Written: October 12, 2003

Abstract

In the thirty years since Calabresi and Melamed's seminal Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, scholars have divided protection for legal entitlements into two major types: property rules and liability rules. In this Article, we uncover an overlooked, but crucial third type of legal protection: pliability rules. Pliability rules combine the features of property rules and liability rules, either sequentially or simultaneously. Pliability rules are thus ideal for situations where a legal entitlement must cope with changing circumstances, conflicting policy goals or the inherent limitations of property and liability rules. The Article serves three goals. Conceptually, we show that pliability rules are ontologically distinct from their familiar cousins, and create different effects on incentives and distribution. Descriptively, we demonstrate that while the academy has overlooked them, pliability rules already affect such diverse legal fields as property, antitrust, corporate law and intellectual property. And, normatively, we uncover ways in which pliability rules can revolutionize the patent system and eminent domain jurisprudence, solve anticommons problems and provide a valuable prism to understand the law of bankruptcy.

Keywords: property rules, liability rules, entitlements, pliability rules

JEL Classification: K10

Suggested Citation

Bell, Abraham and Parchomovsky, Gideon, Pliability Rules (October 12, 2003). Michigan Law Review, Vol. 101, No. 1, 2002. Available at SSRN: https://ssrn.com/abstract=1282862

Abraham Bell (Contact Author)

Bar Ilan University - Faculty of Law ( email )

Faculty of Law
Ramat Gan, 52900
Israel

HOME PAGE: http://law.biu.ac.il/English/segelE.php#

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States

Gideon Parchomovsky

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States
215-898-1603 (Phone)

Bar Ilan University - Faculty of Law ( email )

Ramat Gan 52900
Israel
972-2-5317078 (Phone)

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