Contracting Around Liability Rules

Stanford Law and Economics Olin Working Paper No. 415

100 California Law Review 463 (2012)

24 Pages Posted: 16 Aug 2011 Last revised: 28 Apr 2020

Date Written: February 7, 2012


In his influential paper “Contracting Into Liability Rules: Intellectual Property Rights and Collective Rights Organizations,” Rob Merges makes the case that intellectual property (IP) owners vested with property entitlements can and do contract away their right to an injunction when it is efficient for them to do so. The result was to cement for many the superiority of property over liability rules, since Merges demonstrated a seemingly critical asymmetry between the two. Merges’s evidence suggested that if a judge or a legislature gets the damages calculation wrong, we are stuck with an inefficient liability rule, but that we weren’t similarly stuck with an inefficiently-allocated property rule.

The evidence Merges brought to bear in his path-breaking article is extremely important. But it is incomplete. True, parties can contract around inefficient property rules in IP cases. But as I show in this paper, they can - and do - contract around inefficient liability rules as well. The result does not prove the superiority of liability rules over property rules, but it does undermine a major premise that has been used to support the claim that IP rights must be protected by property rules.

Suggested Citation

Lemley, Mark A., Contracting Around Liability Rules (February 7, 2012). Stanford Law and Economics Olin Working Paper No. 415, 100 California Law Review 463 (2012), Available at SSRN: or

Mark A. Lemley (Contact Author)

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
PlumX Metrics