The relational contingency of rights

Gideon Parchomovsky, Alex Stein

Research output: Contribution to journalArticlepeer-review

14 Scopus citations

Abstract

Contrary to conventional wisdom, in this Article we contend that all rights are relationally contingent. As we demonstrate, whether a right-indeed, any legal entitlement-is realizable will always critically depend on the relationship between two variables: (1) the cost a rightsholder would need to incur to vindicate the right; and (2) the cost faced by a challenger who wishes to attack and ultimately eliminate the right. In the real world, rights are meaningful only when the cost of protecting them is lower than the cost of attacking them. When the converse is true, the right becomes ineffective: it ceases to protect the rightsholder's underlying interest. The cost of challenging a right is not uniform for all potential challengers, but rather varies dramatically across the population. The rightsholder's cost of defending a right, on the other hand, remains constant. Consequently, rights will avail against certain challengers, but not against others. Or, succinctly put: rights are always relationally contingent. Furthermore, we show that the relational contingency of rights dominates all other factors that determine whether a rightsholder will realize her entitlement. When an entitlement is cheaper to attack than to vindicate, its holder will not be able to realize it.
Original languageEnglish
Pages (from-to)1313-1372
Number of pages60
JournalVirginia Law Review
Volume98
Issue number6
StatePublished - Oct 2012

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