Abstract
In his influential paper Contracting into Liability Rules: Intellectual Property Rights and Collective Rights Organizations, Robert 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 got the damages calculation wrong, we were stuck with an inefficient liability rule, but that we weren’t similarly stuck with an inefficiently-allocated property rule.
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