Valuing Control

Peter DiCola*

Control over property is valuable in and of itself. Scholars have not fully recognized or explored that straightforward premise, which has profound implications for the economic analysis of property rights. A party to a property dispute may actually prefer liability-rule protection for an entitlement resting with the other party to liability-rule protection for an entitlement resting with her. This Article presents a novel economic model that determines the condi- tions under which that is the case—by taking account of how parties value control. The model suggests new opportunities for policymakers to resolve conflicts and to develop better information about property disputes through policy experiments. The Article provides recommendations for implementing this new approach and suggests applications in the areas of copyright, trademark, patent, and privacy law.

* Associate Professor of Law, Northwestern University School of Law. I would like to thank David Dana, Erin Delaney, Zev Eigen, Lee Anne Fennell, Ezra Friedman, Wendy Gordon, Kembrew McLeod, Bill Miller, Laura Pedraza-Farin ̃a, Peggy Radin, Max Schanzenbach, Dave Schwartz, Nadav Shoked, Jim Speta, and Matt Spitzer for helpful comments, suggestions, and conversations. Shatra Bell, Nathan Brenner, and Justin Morgan provided intrepid and insightful research assistance. All errors are my own responsibility.

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