Econ 522Economics of Law

Dan Quint

Fall 2011

Lecture 4

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…defined some important tools defined efficiency, and gave reasons for why we might want the law

to be designed to be efficient showed how externalities (among other things) lead to inefficiency introduced static games, the matrix representation of payoffs, and

how to find equilibria

…showed two ways in which a lack of clear property rights can lead to severe inefficiencies overfishing example farming/stealing game

Last week, we…

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My neighbor likes tall trees can he plant a tree on his property if it shades my pool, or blocks

my view?

You want to have a party do you have the right to make noise in your house? or do I have the right to a good night’s sleep in my house?

I own a small power plant located on a river do I have a right to use water from the river for cooling? do I have a right to pollute as much as I want?

Once we have private property rights, we’ll have conflicts between mine and yours

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Cooter and Ulen: property is

“A bundle of legal rights over resources that the owner is free to exercise and whose exercise is protected from interference by others”

Doesn’t tell us how property law should be designed

Need to answer four fundamental questions: What things can be privately owned? What can (and can’t) an owner do with his property? How are property rights established? What remedies are given when property rights are violated?

Today: wild animals and Coase

Up next: how should we design property rights to achieve efficiency?

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Foxes

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Pierson v. Post (NY Supreme Court, 1805) Lodowick Post organized a fox hunt, was chasing

a fox Jesse Pierson appeared “out of nowhere,” killed

the fox and took it Post sued to get the fox back Lower court sided with Post; Pierson appealed

to NY Supreme Court

Question: when do you own an animal?

One early, “classic” property law case

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Court ruled for Pierson (the one who killed the fox) “If the first seeing, starting, or pursuing such animals… should

afford the basis of actions against others for intercepting and killing them, it would prove a fertile source of quarrels and litigation”

(Also: just because an action is “uncourteous or unkind” does not make it illegal)

Dissenting opinion: a fox is a “wild and noxious beast,” and killing foxes is “meritorious and of public benefit” Post should own the fox, in order to encourage fox hunting

One early, “classic” property law case

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Pierson gets the fox

simpler rule (finders keepers)

easier to implement

fewer disputes

Same tradeoff we saw earlier:

Post gets the fox

more efficient incentives

(stronger incentive to pursue animals that may be hard to catch)

Just like Fast Fish/Loose Fish vs Iron Holds The Whale Fast Fish/Loose Fish is the simpler rule, leads to fewer disputes Iron Holds the Whale is more complicated, but is necessary with

whales where hunting them the old-fashioned way is too dangerous

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Coase

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More specifically, under certain conditions, it doesn’t matter for efficiency (Although it does matter for distribution)

Coase Theorem: in the absence of transaction costs, if property rights are well-defined and tradable, then voluntary negotiations will lead to efficiency It doesn’t matter how rights are allocated initially… …because if they’re allocated inefficiently, they can be sold/traded

until they’re allocated efficiently

How should property rights be allocated?Coase’s surprising answer: it doesn’t matter

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Obviously, efficient for me to own it… …but we don’t need the law to give me the car

If I start out owning the car:

no reason for you to buy it, I end up with it efficient If you start out owning the car:

clear incentive for me to buy it, I end up with it efficient Regardless of who owns the car at first, we get to the efficient

outcome I’d rather start out with the car – so I don’t have to pay you for it You’d rather start out with it – so you end up with more money Efficiency doesn’t care about distribution – how much money we each end up

with – just who ends up with the car at the end. And that doesn’t depend on who starts with it.

The key: lack of transaction costs

Example of Coase: you have a car worth $3,000 to you, $4,000 to me

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If it’s efficient for you to have the party… Your benefit from having the party is greater than my benefit from a good

night’s sleep If you start out with the right to have the party, no problem If I start out with the right to quiet, you can pay me for the right to have the

party

If it’s efficient for you not to have the party… Good night sleep is worth more to me If I have right to silence, no problem If you have right to party, I can pay you not to have it

The point: either way, we achieve efficiency If it’s efficient to have the party, you have the party If it’s efficient not to, you don’t Regardless of who started off with the right

Another example: you want to have a party in the house next door to mine

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Property rights have to be well-defined… We need to be clear on who has what rights, so we know the

starting point for negotiations

…and tradable… We need to be allowed to sell/transfer/reallocate rights if we want

…and there can’t be transaction costs It can’t be difficult or costly for us to buy/sell the right

The conditions for this to hold

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Ronald Coase (1960), “The Problem of Social Cost”

In the absence of transaction costs, if property rights are well-defined and tradable, voluntary negotiations will lead to efficiency. So the initial allocation of rights

doesn’t matter for efficiency

However, it does matter for distribution And if there are transaction costs,

it may matter for efficiency too

The Coase Theorem

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Coase’s example: a rancher and a farmer

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English common law: “closed range” or “fencing-in”(or “farmer’s rights”) Ranchers have responsibility to control their cattle Rancher must pay for any damage done by his herd

Much of the U.S. at various times: “open range” or “fencing-out” (or “rancher’s rights”) Rancher can let his cattle roam free Not liable for damage they do to farmer’s crops

(unless farmer had a good fence and they broke through anyway)

Which rule is more efficient?

Rancher’s versus farmer’s rights

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Open range versus closed range

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If it’s cheaper for the farmer to protect his crops than for the rancher to control his herd… Under open range law, that’s what he’ll do Under closed range law, rancher can pay farmer to build fence

If smaller herd is more efficient, farmer can pay rancher to keep fewer cattle

Coase: Whatever is the efficient combination of cattle, crops, fences, etc.… …the rancher and farmer will negotiate to that efficient outcome,

regardless of which law is in place… …as long as the rights are well-defined and tradable and there are no

transaction costs

Coase: either law will lead to efficiency

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Three possibilities: Rancher builds fence around herd… costs $400 Farmer builds fence around crops… costs $200 Do nothing, live with damage… costs nothing

If expected crop damage = $100 Open range: farmer lives with damage rather than building fence Closed range: rancher pays for damage rather than fence

If expected crop damage = $500 Open range: farmer builds fence – efficient Coase: closed range: rancher pays farmer to build fence So efficient outcome under either rule

Rancher and farmer: numerical example

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Lots of examples from case law a building that blocked air currents from turning a windmill a building which cast a shadow over the swimming pool and sunbathing

area of a hotel next door a doctor next door to a confectioner a chemical manufacturer a house whose chimney no longer worked well after the neighbors rebuilt

their house to be taller

In each case, regardless of who is initially held liable, the parties can negotiate with each other and take whichever remedy is cheapest to fix (or endure) the situation

Other examples from Coase

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Judges have to decide on legal liability but this should not confuse economists about the nature of the economic problem involved.

In the case of the cattle and the crops, it is true that there would be no crop damage without the cattle. It is equally true that there would be no crop damage without the crops.

The doctor’s work would not have been disturbed if the confectioner had not worked his machinery; but the machinery would have disturbed no one if the doctor had not set up his consulting room in that particular place…

Quoting from Coase (p. 13):

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If we are to discuss the problem in terms of causation, both parties cause the damage.

If we are to attain an optimum allocation of resources, it is therefore desirable that both parties should take the harmful effects into account when deciding on their course of action.

It is one of the beauties of a smoothly operating pricing system that… the fall in the value of production due to the harmful effect would be a cost for both parties.

Quoting from Coase (p. 13):

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If the cheapest alternative is for the farmer to build a fence for $200… The cost to build a fence is $200 But the cost to not build a fence is more than $200 – since under a

closed-range law, the farmer could ask the rancher for more than $200 to build the fence

“Opportunity cost”

What does Coase mean by “a cost for both parties”?

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Coase Theorem: In the absence of transaction costs,

if property rights are well-defined and tradeable,

voluntary negotiations will lead to efficiency.

The initial allocation of property rights therefore does not matter for achieving efficiency…

…although it does matter for distribution…

…and it only works if there are no transaction costs

If there are transaction costs, then the initial allocation can matter for efficiency

So, summing up…

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Bargaining

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Example from before: Your car is worth $3,000 to you, and $4,000 to me Suppose I have $10,000

$10,000 is my threat point the payoff I can get on my own, by refusing to cooperate with you also called reservation utility, or outside option

$3,000 is your threat point

Any outcome we both agree to must make us both at least as well-off as our threat point

Some vocabulary about bargaining

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If I don’t buy the car from you… my payoff is 10,000 (my threat point) your payoff is 3,000 combined payoffs are 13,000

If I buy the car for some price P my payoff is 4,000 + 10,000 – P = 14,000 – P your payoff is P combined payoffs are 14,000 – P + P = 14,000

$1,000 are the gains from trade (or gains from cooperation) no trade combined payoffs of $13,000 I buy car combined payoffs of $14,000 if we cooperate, our combined payoffs increase by $1,000

Some vocabulary about bargaining

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Threat points: 10,000 and 3,000

Gains from cooperation: 1,000

Suppose the gains from cooperation were split equally we’d each get 500 more than threat point my payoff would be 10,500, yours 3,500 which means P = $3,500

(Coase doesn’t specify gains will be divided equally, just that they’ll be divided in some way)

Some vocabulary about bargaining

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Cows do $500 damage; fence around herd costs $400; fence around crops costs $200

Let’s go back to the rancher and farmer

-200-200Combined Payoffs

100-200Farmer’s Payoff

-3000Rancher’s Payoff (IF…)

2000Gains From Cooperation

0-200Farmer’s Threat Point

-4000Rancher’s Threat Point

Farmer’s RightsRancher’s Rights

=

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General equilibrium given prices, consumers maximize utility given prices, firms maximize profits prices are such that all markets clear

First Welfare Theorem: general equilibrium is efficient

But not when there are externalities, or “missing markets”

Allowing the consumer to negotiate with the firm is like introducing a “missing market” in air rights

Relating Coase to general equilibrium/first welfare theorem

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General equilibrium given prices, consumers maximize utility given prices, firms maximize profits prices are such that all markets clear

First Welfare Theorem: general equilibrium is efficient

But not when there are externalities, or “missing markets”

Allowing the consumer to negotiate with the firm is like introducing a “missing market” in air rights

Relating Coase to general equilibrium/first welfare theorem

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Getting backto foxes…

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Coase seems to say: for efficiency, it doesn’t matter who starts off with the right to the fox If Post values it more, he can buy it from Pierson, or vice versa Seems to imply: one rule is just as good as the other, as long as we

all know what the rule is

So why does Pierson v Post matter? Transaction costs! Majority: if Post gets the fox back, “it would prove a fertile course of

quarrels and litigation” – the ensuing lawsuits would be costly Dissent: killing foxes is a good thing (externality), so lots of people

benefit – so hard to get efficient amount of fox hunting through bargaining

Why doesn’t Coase make Pierson v Post irrelevant?

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Coase: “in the absence of transaction costs, if property rights are well-defined and tradable, voluntary negotiations will lead to efficiency.”

This suggests that if there are transaction costs, voluntary negotiations may not lead to efficiency

Car example (yet again) If transactions are costly, we may not trade And if we do trade, we incur that cost

Transaction costs

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“If market transactions were costless, all that matters (questions of equity apart) is that the rights of the various parties should be well-defined and the results of legal actions easy to forecast.

But… the situation is quite different when market transactions are so costly as to make it difficult to change the arrangement of rights established by the law.

In such cases, the courts directly influence economic activity.

…Even when it is possible to change the legal delimitation of rights through market transactions, it is obviously desirable to reduce the need for such transactions and thus reduce the employment of resources in carrying them out.

Quoting Coase…

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“In the absence of transaction costs, if property rights are well-defined and tradable, voluntary negotiations will lead to efficiency.”

We can read this as… “As long as transaction costs aren’t a big deal, we’ll get efficiency” Or as, “we’ll only get efficiency automatically if there are no transaction

costs”

Coase also gives two examples of institutions that may emerge in response to high transaction costs: Firms Government regulation

We can see the Coase Theorem as either a positive or negative result

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What are transaction costs?

If there are transaction costs… how we allocate rights does matter for efficiency so what should we do?

But we’ll begin with Demsetz, “Toward a Theory of Property Rights”

Wednesday: transaction costs

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Demsetz( probably won’t get to on Monday)

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We motivated property law by looking at a game between two neighboring farmers

10 – c, 10 – c -5 – c, 12 – P

12 – P, -5 – c -P, -P

Farm Steal

Farm

Steal

Player 2

Pla

yer

110, 10 -5, 12

12, -5 0, 0

Farm Steal

Farm

Steal

Player 2

Pla

yer

1

MODIFIED GAMEORIGINAL GAME

Changing the game had two effects: Allowed us to cooperate by not stealing from each other Introduced a cost c of administering a property rights system

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“A primary function of property rights is that of guiding incentives to achieve a greater internalization of externalities”

“[ In order for an externality to persist, ] The cost of a transaction in the rights between the parties… must exceed the gains from internalization.”

“Property rights develop to internalize externalities when the gains from internalization become larger than the cost of internalization.”

Harold Demsetz (1967), “Toward a Theory of Property Rights”

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“Property rights develop to internalize externalities when the gains from internalization become larger than the cost of internalization.”

Private ownership of land among Native Americans Cost of administering private ownership: medium Before fur trade…

externality was small, so gains from internalization were small gains < costs no private ownership of land

Harold Demsetz (1967), “Toward a Theory of Property Rights”

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“Property rights develop to internalize externalities when the gains from internalization become larger than the cost of internalization.”

Private ownership of land among Native Americans Cost of administering private ownership: medium Before fur trade…

externality was small, so gains from internalization were small gains < costs no private ownership of land

As fur trading developed… externality grew, so gains from internalization grew gains > costs private property rights developed

Harold Demsetz (1967), “Toward a Theory of Property Rights”

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The date is 10,000 or 11,000 B.C. You are a member of a primitive tribe that farms its land in common. Farming land in common is a pain; you spend almost as much time watching each other and arguing about who is or is not doing his share as you do scratching the ground with pointed sticks and pulling weeds.

…It has occurred to several of you that the problem would disappear if you converted the common land to private property. Each person would farm his own land; if your neighbor chose not to work very hard, it would be he and his children, not you and yours, that would go hungry.

Friedman tells a similar story: “we owe civilization to the dogs”

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There is a problem with this solution… Private property does not enforce itself. Someone has to make sure that the lazy neighbor doesn’t solve his food shortage at your expense.

[Now] you will have to spend your nights making sure they are not working hard harvesting your fields. All things considered, you conclude that communal farming is the least bad solution.

Friedman tells a similar story: “we owe civilization to the dogs”

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Agricultural land continues to be treated as a commons for another thousand years, until somebody makes a radical technological innovation: the domestication of the dog.

Dogs, being territorial animals, can be taught to identify their owner’s property as their territory and respond appropriately to trespassers. Now you can convert to private property in agricultural land and sleep soundly. Think of it as the bionic burglar alarm.

-Friedman, Law’s Order, p. 118

Friedman tells a similar story: “we owe civilization to the dogs”

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Coase: if property rights are complete and tradeable, we’ll always get efficiency

Demsetz: yes, but this comes at a cost property rights will expand when the benefits outweigh the costs either because the benefits rise… …or because the costs fall

Of course, Coase wasn’t completely ignoring costs… Wednesday: what are transaction costs, how do we deal with them?

So…