Posts filed under ‘Law and Economics’

Patents for Institutional Innovation

| Dick Langlois |

I was fascinated to learn about the recent ballot proposal in Ohio to legalize marijuana by constitutional amendment. The unusual aspect of the proposal was that it would have come with a grant of a monopoly in commercial marijuana production to specific investors who owned suitable land. Because they stood to gain considerably from passing the proposal, these investors devoted resources to getting it passed, including professional canvassers, political strategists, and even a mascot with a head shaped like a marijuana bud. Basic Public Choice teaches that legislation benefiting many diffuse constituents is hard to pass because of transaction costs. In effect, the monopoly aspect of the Ohio proposal would have granted a patent to the investors, thus giving them the incentive to overcome the transaction costs of collective action. The proposal failed, and at the same time Ohio voters passed an amendment forbidding the use of ballot initiatives for personal gain. It is interesting nonetheless to think about the economics of such “patents” for institutional innovation.

4 November 2015 at 3:22 pm 1 comment

The Myth of the Patent Anti-Commmons

| Dick Langlois |

Just ran across the abstract of a fascinating paper called “The Anti-Commons Revisited” by Jonathan Barnett at USC, which is forthcoming in the Harvard Journal of Law and Technology. Here’s the abstract.

Intellectual property scholars and policymakers often assert that technology and creative markets suffer from “anti-commons” (“AC”) effects that restrain innovation within a web of conflicting intellectual property claims. A minority view asserts that market players have incentives and capacities to correct for AC effects through transactional solutions. To assess the relative merits of each side of this debate, I review a large and diverse body of empirical evidence relating to AC effects in contemporary and historical markets. I independently replicate the most controversial empirical findings, supplement additional research on selected markets, and provide a survey of all documented IP-pooling arrangements in U.S. markets since 1900. The weight of the evidence strongly favors the minority view. Evidence for AC effects is scarce while evidence that markets correct for AC effects is abundant. AC effects are typically preempted or mitigated through cooperative arrangements among small numbers of IP holders or transactional solutions devised by entrepreneurial intermediaries for large numbers of IP holders. This pattern recurs over a diverse array of markets and periods, including automobiles, petroleum refining, aircraft, and radio communications in the early to mid-20th century, and information and communications technology markets from the late 20th century through the present. Contrary to standard assumptions, there is little evidence that these markets experienced reduced or delayed innovation or output despite intensive levels of patent issuance and litigation.

3 August 2015 at 1:40 pm 3 comments


| Peter Klein |

logoI’ve long been involved with the International Society for New Institutional Economics (ISNIE). (In fact, I first met the esteemed Professor Foss at the inaugural ISNIE conference in St. Louis in 1997.) ISNIE was established as an global academic society promoting the study of institutions within the broad tradition established by the organization’s co-founders Ronald Coase, Oliver Williamson, and Douglass North. ISNIE has been a great success, holding annual conferences in the US and Europe, sponsoring an important working-paper series, and boasting thousands of members from all over the world.

Times change, and over the last two decades the study of institutions has moved from the periphery towards the center of economic, social, political, and legal analysis. The statement, “institutions matter,” which might have been controversial in social science in the 1990s, seems trite today. As such, some of ISNIE’s leaders and members saw a need to reposition and rebrand the society to reflect the current academic and policy climate. Last year ISNIE’s members voted, and this year the board approved, a name change. The organization is now SIOE, the Society for Institutional and Organizational Economics. Along with the change is a new website, featuring news, information, a blog, and many other features. The site is a work in progress and editors Bruno Chaves and Jens Prüfer would be happy to receive comments and suggestions.

I’m looking forward to the next twenty years with SIOE!

6 July 2015 at 1:01 pm Leave a comment

Henry Manne Quote of the Day

| Peter Klein |

This is actually Richard Epstein writing about Henry Manne, but Richard nicely captures the essence of Henry’s thinking:

The combination of law and economics is a major discipline in … modern law schools, but I do not think that it was always presented to Henry’s liking. In his view, the student’s purpose was to show the power of markets to overcome key problems of information and coordination, not to run a set of exhaustive empirical studies to show that corporate boards would function better if they increased their number of independent directors by 5 percent.

Other Manne items on O&M are here. As I noted in another post, Manne was expert in specific technical areas of law (most obviously, insider trading and corporate takeovers) but very much a generalist in his overall outlook. As Manne once recalled about a 1962 seminar led by Armen Alchian, “All of a sudden, everything that I had done intellectually for thirteen years came together, with this one idea of Alchian’s about the real nature of property rights and the Misesian notion of people making choices, with every choice being a tradeoff,” In other words, a simple and powerful theoretical framework goes a long way in analyzing a broad range of issues — much different from today’s emphasis on behavioral quirks, clever experiments, and similar minutiae.

17 June 2015 at 2:49 pm 1 comment

Congratulations to Henry Butler

| Peter Klein |

butler_henry_11_smCongratulations to Henry Butler for being named Dean of the George Mason University School of Law. Henry has been director of GMU’s Law and Economics Center, and previously directed the Searle Center at Northwestern. In these roles he has been a prolific economic educator, following in the footsteps of his mentor Henry Manne (aka “Big Henry,” Henry Butler being “Little Henry”).

Younger readers may not know that Henry Butler is also a significant contributor to the early theoretical and empirical literature in transaction cost economics, particularly through two papers with Barry Baysinger, “Corporate Governance and the Board of Directors: Performance Effects of Changes in Board Composition” (JLEO, 1985) and “The Role of Corporate Law in the Theory of the Firm” (JLE, 1985). These papers argued that, contrary to a naive reading of the nexus-of-contracts literature on the firm, institutional constraints such as contract law do have an effect on firm organization and governance. One strand of the research literature on the firm, taking its cue from Alchian and Demsetz (1972) and Jensen and Meckling (1976), maintained that the legal structure of the firm is relatively unimportant for organization and performance, as market participants can simply price out, and contract around, any constraints imposed by the legal system. Baysinger and Butler, following Coase and Williamson, showed that legal rules, particularly those related to incorporation, do matter in the presence of transaction costs. Their work on boards showed that board structure and composition affect firm performance, while emphasizing that boards and other governance mechanisms including corporate law are interdependent.

22 April 2015 at 9:55 am Leave a comment

“Robert Bork’s Forgotten Role in the Transaction Cost Revolution”

| Peter Klein |

E1725-27Thanks to Danny Sokol for passing on this paper by Alan Meese.

Robert Bork’s Forgotten Role in the Transaction Cost Revolution

Alan J. Meese
Antitrust Law Journal 79, no. 3 (2014)

This essay, prepared for a conference examining Robert Bork’s antitrust contributions, examines Bork’s hitherto unknown role in the transaction cost economics (“TCE”) revolution. The essay recounts how, in 1966, Bork helped rediscover Coase’s 1937 article, The Nature of the Firm and employed Coase’s reasoning to explain how various forms of partial integration could reduce transaction costs. As the essay shows, Bork described how exclusive territories, customer restrictions and horizontal minimum price fixing that accompanied otherwise valid integration were voluntary efforts to overcome the costs of relying upon unfettered markets to conduct economic activity. To be sure, Bork did not develop a complete account of TCE capable of informing a full-fledged research program. Nonetheless, Bork did articulate and apply various tools of TCE, tools that reflected departures from the applied price theory tradition of industrial organization.

The essay also offers some brief speculation regarding why scholars have not recognized Bork’s early contributions to TCE. For one thing, Bork did not purport to offer a new economic paradigm. Instead, Bork repeatedly characterized his work as an application of basic price theory, the very economic paradigm that TCE overthrew with respect to the interpretation of non-standard contracts. Moreover, Bork did not persist in his critique of price theory’s once-dominant account of non-standard contracts. After reiterating his views in 1968, for instance, he did not revisit the economics of non-standard agreements for nearly a decade. Finally, when Bork did return to the topic, he deemphasized TCE-based arguments and focused more on the claim that such agreements could not add to the market power already possessed by manufacturers and thus could not produce economic harm. In short, Bork’s failure to reiterate his TCE-based interpretation of non-standard agreements seems partly responsible for the lack of recognition his early contributions have received.

On Bork see also Jack High’s useful 1984 paper, “Bork’s Paradox: Static vs. Dynamic Efficiency in Antitrust Analysis.”

6 February 2015 at 9:20 am Leave a comment

Henry G. Manne (1928-2015)

| Peter Klein |

manneVery sorry to report the passing of Henry Manne yesterday at the age of 86. Manne made seminal contributions to the literatures in corporate governance, securities regulation, higher education, and many other subjects. Here are past O&M posts on Manne and his contributions. I tried several times to get him to guest blog on O&M but couldn’t pull it off.

I got to know him fairly well in the last few years and he was a charming companion and correspondent — clever, witty, erudite, and a great social and cultural critic, especially of the strange world of academia, where he plied his trade for five decades but always as a slight outsider.

Here are tributes and commentaries from David HendersonJane Shaw, Don Boudreaux, and me. We’ll share more in the coming days.

18 January 2015 at 6:13 pm 1 comment

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Our Recent Books

Nicolai J. Foss and Peter G. Klein, Organizing Entrepreneurial Judgment: A New Approach to the Firm (Cambridge University Press, 2012).
Peter G. Klein and Micheal E. Sykuta, eds., The Elgar Companion to Transaction Cost Economics (Edward Elgar, 2010).
Peter G. Klein, The Capitalist and the Entrepreneur: Essays on Organizations and Markets (Mises Institute, 2010).
Richard N. Langlois, The Dynamics of Industrial Capitalism: Schumpeter, Chandler, and the New Economy (Routledge, 2007).
Nicolai J. Foss, Strategy, Economic Organization, and the Knowledge Economy: The Coordination of Firms and Resources (Oxford University Press, 2005).
Raghu Garud, Arun Kumaraswamy, and Richard N. Langlois, eds., Managing in the Modular Age: Architectures, Networks and Organizations (Blackwell, 2003).
Nicolai J. Foss and Peter G. Klein, eds., Entrepreneurship and the Firm: Austrian Perspectives on Economic Organization (Elgar, 2002).
Nicolai J. Foss and Volker Mahnke, eds., Competence, Governance, and Entrepreneurship: Advances in Economic Strategy Research (Oxford, 2000).
Nicolai J. Foss and Paul L. Robertson, eds., Resources, Technology, and Strategy: Explorations in the Resource-based Perspective (Routledge, 2000).


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