7 - Special Problems with Legal Remedies

Summary

We turn now to some special problems that beneficiaries may encounter when they seek to enforce their rights using legal remedies. These include uncollectability, insurance, transaction costs, nominal damages, failures of proof, errors in determination, and the problems associated with the enforcement of rights in international law. Each of these special problems challenges our notions of enforceability in different ways. Our purpose is to see if the understanding of enforceability we have developed in the previous sections supports and is supported by our pretheoretical intuitions about enforceability in these problem cases, and to see if our analysis of enforceability helps explain how people actually behave when confronted with such problems. Do the conditions present in these special cases make the rights involved unenforceable under our analysis? What intuitions do we have in this regard? Do people actually behave as if their rights were unenforceable in these situations? Does the analysis of enforceability we have developed in the preceding sections allow us to account for these special problem cases as well as the more central ones, or must we treat these special cases as exceptions to the rule? If we can account for these special cases as well as the more central ones, this is some evidence that the analytical framework we have developed is a valid one. If we cannot, our framework may need revisions. With these possibilities in mind, we will examine each of these problem areas in turn.