Book Description
After operationalizing the concept of "the effect of a choice on economic efficiency," this Article explains the basis of its author's conclusion that ours is a liberal, rights-based society as well as the implications of that conclusion for the structure and content of the analysis of moral rights in our culture, the analysis of what an individual or the State ought to do when the relevant choice is neither required nor prohibited by our society's moral-rights commitments, and the analysis of various types of legal rights?legal rights that are based on moral rights, legal rights that arise from legislation that is designed to secure various legitimate social goals, or legal rights that are created by legislation designed to further the narrowly-defined self-interest of its supporters. The Article then explains that economic efficiency is not an ultimate value (that increasing economic efficiency is not a goal that is desired in itself), that the fact that a choice increases economic efficiency does not guarantee its consistency with our rights-commitments, that the fact that a choice decreases economic efficiency does not guarantee its inconsistency with our rights-commitments, that these last two conclusions partly reflect the inability of economic-efficiency analysis to identify the creatures that are moral-rights' holders and partially reflects the insensitivity of economic-efficiency analysis to many factors that are relevant to the consistency of a choice with the moral rights of moral-rights holders, that the fact that a choice will increase (decrease) economic efficiency is not a necessary or sufficient condition for its desirability (undesirability) from any legitimate personal-ultimate-value perspective (rights-considerations aside), and partly for reasons that relate to the foregoing conclusion that the analysis of economic efficiency is also not an algorithm for the determination of legal rights of any kind (except in the rare instances in which the alleged legal right was created by a statute that contains ambiguous or open-textured language and was passed to achieve the possible proximate goal of increasing economic efficiency).