Econ 522 Economics of Law

1. Econ 522Economics of Law Dan Quint Spring 2012 Lecture 5

2. Homework • First homework (efficiency) due midnight Thursday night • Dropbox folder on Learn@UW – upload any electronic file • Email me or Fran if you’re having problems • Second homework (property law) due two weeks later – midnight Thursday February 23

3. Last week… • Coase Theorem: in the absence of transaction costs,if property rights are well-defined and tradable, we’ll always get efficiency • Or: if conditions are perfect, initial allocation of rights doesn’t matter for efficiency • Or, if property rights are complete enough, we can overcome externalities • Demsetz: yes, but this comes at a cost • property rights will expand to cover more when gains from fixing externality exceed costs of administering more complex system • The Coase result only applies when there are no transaction costs • Today: transaction costs

4. TransactionCosts

5. What are transaction costs? • Anything that makes it difficult or expensive for two parties to achieve a mutually beneficial trade • Three categories • Search costs– difficulty in finding a trading partner • Bargaining costs – difficulty in reaching an agreement • Enforcement costs – difficulty in enforcing the agreement afterwards

6. Bargaining costs come in many forms • Asymmetric information • Akerloff (1970), “The Market for Lemons” – adverse selection

7. Bargaining costs come in many forms • Asymmetric information • Akerloff (1970), “The Market for Lemons” – adverse selection • Private information (don’t know each others’ threat points) • Myerson and Satterthwaite (1983), “Efficient Mechanisms for Bilateral Trading” – always some chance of inefficiency

8. Bargaining costs come in many forms • Asymmetric information • Akerloff (1970), “The Market for Lemons” – adverse selection • Private information (don’t know each others’ threat points) • Myerson and Satterthwaite (1983), “Efficient Mechanisms for Bilateral Trading” – always some chance of inefficiency • Uncertainty • If property rights are ambiguous, threat points are uncertain, and bargaining is difficult

9. Bargaining costs come in many forms • Large numbers of parties • Developer values large area of land at $1,000,000 • 10 homeowners, each value their plot at $80,000

10. Bargaining costs come in many forms • Large numbers of parties • Developer values large area of land at $1,000,000 • 10 homeowners, each value their plot at $80,000 • Holdout, freeriding • Hostility

11. Sources of transaction costs • Search costs • Bargaining costs • Asymmetric information/adverse selection • Private information/not knowing each others’ threat points • Uncertainty about property rights/threat points • Large numbers of buyers/sellers – holdout, freeriding • Hostility • Enforcement costs

12. So, whatdo we do?

13. What we know so far… • No transaction costs  initial allocation of rights doesn’t matter for efficiency • wherever they start, people will trade until efficiency is achieved • Significant transaction costs  initial allocation does matter, since trade may not occur (and is costly if it does) • This leads to two normative approaches we could take

14. Two normative approaches to property law • Design the law to minimize transaction costs • “Structure the law so as to remove the impediments to private agreements” • Normative Coase • “Lubricate” bargaining

15. Two normative approaches to property law • Design the law to minimize transaction costs • “Structure the law so as to remove the impediments to private agreements” • Normative Coase • “Lubricate” bargaining • Try to allocate rights efficiently to start with, so bargaining doesn’t matter that much • “Structure the law so as to minimize the harm caused by failures in private agreements” • Normative Hobbes

16. Which approach should we use? • Compare cost of each approach • Normative Coase: cost of transacting, and remaining inefficiencies • Normative Hobbes: cost of figuring out how to allocate rights efficiently (information costs) • When transaction costs are low and information costs are high, structure the law so as to minimize transaction costs • When transaction costs are high and information costs are low, structure the law to allocate property rights to whoever values them the most

17. Designing an efficient property law system

18. Four questions we need to answer what can be privately owned? what can an owner do? how are property rights established? what remedies are given?

19. Calabresi and Melamed treat property and liability under a common framework • Calabresi and Melamed (1972), Property Rules, Liability Rules, and Inalienability: One View of the Cathedral • Liability • Is the rancher liable for the damage done by his herd? • Property • Does the farmer’s right to his property include the right to be free from trespassing cows? • Entitlements • Is the farmer entitledto land free from trespassing animals? • Or is the rancher entitledto the natural actions of his cattle?

20. Three possible ways to protect an entitlement • Property rule / injunctive relief • Violation of my entitlement is punished as a crime • (Injunction: court order clarifying a right and specifically barring any future violation) • But entitlement is negotiable (I can choose to sell/give up my right)

21. Three possible ways to protect an entitlement • Property rule / injunctive relief • Violation of my entitlement is punished as a crime • (Injunction: court order clarifying a right and specifically barring any future violation) • But entitlement is negotiable (I can choose to sell/give up my right) • Liability rule / damages • Violations of my entitlement are compensated • Damages – payment to victim to compensate for damage done • Inalienability • Violations punished as a crime • Unlike property rule, the entitlement cannot be sold

22. Comparing property/injunctive relief to liability/damages rule • Injuree (person whose entitlement is violated) always prefers a property rule • Injurer always prefers a damages rule • Why? • Punishment for violating a property rule is severe • If the two sides need to negotiate to trade the right, injurer’s threat point is lower • Even if both rules eventually lead to the same outcome, injurer may have to pay more

23. E profits = 1,000L profits = 300  100E prevention = 500L prevention = 100 Comparing injunctive relief todamages – example • Electric company E emits smoke, dirties the laundry at a laundromat L next door • E earns profits of 1,000 • Without smoke, L earns profits of 300 • Smoke reduces L’s profits from 300 to 100 • E could stop polluting at cost 500 • L could prevent the damage at cost 100

24. E profits = 1,000L profits = 300  100E prevention = 500L prevention = 100 First, we consider thenon-cooperative outcomes • Polluter’s Rights (no remedy) • E earns 1,000 • L installs filters, earns 300 – 100 = 200 • Laundromat has right to damages • E earns 1,000, pays damages of 200  800 • L earns 100, gets damages of 200  300 • Laundromat has right to injunction • E installs scrubbers, earns 1,000 – 500 = 500 • L earns 300

25. E profits = 1,000L profits = 300  100E prevention = 500L prevention = 100 Noncooperative payoffs Polluter’s Rights Damages Injunction E payoff(non-coop) 1,000 800 500 L payoff(non-coop) 200 300 300 Combined payoff (non-coop) 1,200 1,100 800

26. E profits = 1,000L profits = 300  100E prevention = 500L prevention = 100 What about with bargaining? Polluter’s Rights Damages Injunction E payoff(non-coop) 1,000 800 500 L payoff(non-coop) 200 300 300 Combined payoff (non-coop) 1,200 1,100 800 Gains from Coop 0 100 400 E payoff (coop) 1,000 850 700 800 + ½ (100) 500 + ½ (400) L payoff (coop) 200 350 500 300 + ½ (100) 300 + ½ (400) Combined 1,200 1,200 1,200

27. Comparing injunctions to damages… • Injunctions are generally cheaper to administer • No need for court to calculate amount of harm done

28. Comparing injunctions to damages… • Injunctions are generally cheaper to administer • No need for court to calculate amount of harm done • Damages are generally more efficient when private bargaining is impossible • Three possibilities: injurer prevents harm, injuree prevents harm, nobody prevents harm (someone pays for it) • Efficiency: cheapest of the three • Damages: injurer can prevent harm or pay for it; injurer chooses whichever is cheapest • Injunction: injurer can only prevent harm

29. So now we know… • Any rule leads to efficient outcomes when TC are low • Injunctions are cheaper to implement • Damages lead to more efficient outcomes when TC high • Leads Calabresi and Melamed to the following conclusion: When transaction costs are low, a property rule (injunctive relief) is more efficient When transaction costs are high, a liability rule (damages) is more efficient

30. High transaction costs  damagesLow transaction costs  injunctive relief “Private bargaining is unlikely to succeed in disputes involving a large number of geographically dispersed strangers because communication costs are high, monitoring is costly, and strategic behavior is likely to occur. Large numbers of land owners are typically affected by nuisances, such as air pollution or the stench from a feedlot. In these cases, damages are the preferred remedy. On the other hand, property disputes generally involve a small number of parties who live near each other and can monitor each others’ behavior easily after reaching a deal; so injunctive relief is usually used in these cases.” (Cooter and Ulen)

31. A different view of the high-transaction-costs case… “When transaction costs preclude bargaining, the court should protect a right by an injunctive remedy if it knows which party values the right relatively more and it does not know how much either party values it absolutely. Conversely, the court should protect a right by a damages remedy if it knows how much one of the parties values the right absolutely and it does not know which party values it relatively more.” (Cooter and Ulen)

32. Low transaction costs  injunctive relief • Cheaper for the court to administer • With low transaction costs, we expect parties to negotiate privately if the right is not assigned efficiently • But… do they really? • Ward Farnsworth (1999), Do Parties to Nuisance Cases Bargain After Judgment? A Glimpse Inside The Cathedral • 20 nuisance cases: no bargaining after judgment “In almost every case the lawyers said that acrimony between the parties was an important obstacle to bargaining… Frequently the parties were not on speaking terms... …The second recurring obstacle involves the parties’ disinclination to think of the rights at stake… as readily commensurable with cash.”

33. Third way to protect an entitlement: inalienability • Inalienability: when an entitlement is not transferable or saleable • Allocative externalities(enriched uranium)

34. Third way to protect an entitlement: inalienability • Inalienability: when an entitlement is not transferable or saleable • Allocative externalities(enriched uranium) • “Indirect” externalities(human organs)

35. Third way to protect an entitlement: inalienability • Inalienability: when an entitlement is not transferable or saleable • Allocative externalities(enriched uranium) • “Indirect” externalities(human organs) • Paternalism source: http://www.shanghaidaily.com/nsp/National/2011/06/02/Boy%2Bregrets%2Bselling%2Bhis%2Bkidney%2Bto%2Bbuy%2BiPad/

36. what can be privately owned? what can an owner do? how are property rights established? what remedies are given?

37. (we’ll probablyend here)

38. How do we design an efficient property law system? what can be privately owned? what can an owner do? how are property rights established? what remedies are given?

39. Public versus Private Goods Private Goods • rivalrous – one’s consumption precludes another • excludable – technologically possible to prevent consumption • example: apple Public Goods • non-rivalrous • non-excludable • examples: defense against nuclear attack • infrastructure (roads, bridges) • parks, clean air, large fireworks displays

40. Public versus Private Goods • When private goods are owned publicly, they tend to be overutilized/overexploited

41. Public versus Private Goods • When private goods are owned publicly, they tend to be overutilized/overexploited • When public goods are privately owned, they tend to be underprovided/undersupplied

42. Public versus Private Goods • When private goods are owned publicly, they tend to be overutilized/overexploited • When public goods are privately owned, they tend to be underprovided/undersupplied • Efficiency suggests private goods should be privately owned, and public goods should be publicly provided/regulated

43. Public versus Private Goods • When private goods are owned publicly, they tend to be overutilized/overexploited • When public goods are privately owned, they tend to be underprovided/undersupplied • Efficiency suggests private goods should be privately owned, and public goods should be publicly provided/regulated

44. A different view: transaction costs • Clean air • Large number of people affected  transaction costs high  injunctive relief unlikely to work well • Still two options • One: give property owners right to clean air, protected by damages • Two: public regulation • Argue for one or the other by comparing costs of each • Damages: costs are legal cost of lawsuits or pretrial negotiations • Regulation: administrative costs, error costs if level is not chosen correctly

45. what can be privately owned? what can an owner do? how are property rights established? what remedies are given?

46. What can an owner do with his property? • Principle of maximum liberty • Owners can do whatever they like with their property, provided it does not interfere with other’ property or rights • That is, you can do anything you like so long as it doesn’t impose an externality (nuisance) on anyone else

47. So, what does an efficient property law system look like? • What things can be privately owned? • Private goods are privately owned, public goods are publicly provided • What can owners do with their property? • Maximum liberty • How are property rights established? • (Examples to come) • What remedies are given? • Injunctions when transaction costs are low; damages when transaction costs are high

48. Up next: applications