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The Relational Contingency of Rights

52 Pages Posted: 24 Jan 2012 Last revised: 9 Sep 2012

Alex Stein

Brooklyn Law School

Gideon Parchomovsky

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

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Date Written: June 18, 2012


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 right holder. Contrariwise, challengers who can litigate more cheaply than a right holder can force the right holder 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, rights holders systematically suffer from cost disadvantage vis-à-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 literature, 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.

Suggested Citation

Stein, Alex and Parchomovsky, Gideon, The Relational Contingency of Rights (June 18, 2012). Virginia Law Review, Vol. 98, 2012. Available at SSRN: or

Alex Stein (Contact Author)

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States
718-780-0615 (Phone)

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
972-2-5317078 (Phone)

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