Law and economics « Organizations and Markets

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Department of “Duh”

| Peter Klein |

It must be acknowledged, however, that a researcher’s political ideology or vested interest in a particular theory can still enter even ostensibly descriptive analysis by the data set chosen for the research; the mathematical transformations of raw data and the exclusion of so-called outlier data; the specific form of the mathematical equations posited for estimation; the estimation method used; the number of retrials in estimation to get what strikes the researcher as “plausible” results, and the manner in which final research findings are presented.

That’s Uwe Reinhardt, writing a NY Times op-ed that could have been titled “A Mainstream Economist Tries to Come to Grips with Kaldor-Hicks Efficiency.” It’s actually a pretty thoughtful and informative discussion that exposes some of the fatal — to my mind, anyway — flaws of the Kaldor-Hicks concept. But Reinhardt implies, unfortunately, that virtually every economist accepts the Kaldor-Hicks principle as a normative standard. There is actually a fair amount of dissent, not only from Austrians but also from people like Jon Elster and John Roemer. As Gary Lawson notes in an excellent survey of welfare economics concepts, the Kaldor-Hicks criterion, in practice, is

as useless as Pareto superiority. Kaldor-Hicks efficiency purchases its coherence by requiring that compensation be hypothetically possible in such a way as to guarantee that each person, by her own standards, does not come away a loser, just as strict Paretianism requires that each person judge herself to be as well off or better off than before. All it takes to make the universe of Kaldor-Hicks-efficient transactions an empty set is one person who sincerely cannot be bought-that is, a person who values autonomy, either his own or that of others, so highly that no amount of after-the-fact compensation could possibly leave him as well off as he would have been had the loss never been inflicted. (without consent) in the first place. In a large population, no legal rule [or other reallocation of resources] will ever satisfy the Kaldor-Hicks efficiency criterion.

4 comments 27 August 2010

Regulatory Capture

| Dick Langlois |

I seem to be on the “communitarianism” mailing list of Amitai Etzioni, missives from which are usually good for a cold frisson of annoyance. The most recent one seemed promising, however, as it touted a paper revisiting the capture theory of regulation. Many people have rightly criticized the Dodd-Frank Act for piling on unnecessary administrative regulation despite the fact that (A) regulation was already extensive and provided all the powers that would have been needed to avert the crisis and (B) much of the new regulation is aimed at activities that have nothing to do with the financial crisis. Etzioni points out that the potential for regulatory capture is an additional reason for concern. Quite so. Dependably, however, Etzioni comes to the wrong conclusion about the nature of the problem and how to fix it. To Etzioni, the problem is not the inherent liabilities of administrative regulation but the specter of private money corrupting the system. (Notably, his examples do not include the money of labor unions, which have captured, at the very least, vast swaths of the Labor and Education Departments.) As political speech is a topic on which I have already fulminated at some length, I will just add that, even in a world in which regulators were somehow insulated from financial temptation, there would still be capture: the operation of regulatory agencies depends on the possession of large amounts of specialized knowledge in whose generation the subjects of regulation have considerable, and oftentimes overwhelming, advantage.

2 comments 29 July 2010

The Organizational Economics of the BP Oil Spill

| Peter Klein |

Now that passions are cooling regarding the BP disaster, it’s time to bring organizational issues into the discussion.

1. Everyone knows about the liability caps and the role they may have played in encouraging moral hazard. Just as bank deposits are guaranteed by government deposit insurance, and large banks themselves are probably Too Big to Fail, liability for property damage from oil spills off US waters is limited to $75 million (plus cleanup costs), based on a 1990 law passed after the Exxon Valdiz spill. This presumably mitigates drillers’ incentives to manage environmental risk. Indeed, oil companies enjoy a very cozy relationship with their ostensible guardians; as the NY Times noted, “[d]ecades of law and custom have joined government and the oil industry in the pursuit of petroleum and profit.” The federal agency that oversees drilling, the Minerals Management Service, rakes $13 billion a year in fees in what amounts to a public-private partnership. And does anyone really think the British government would “stand idly by” if BP’s status as an ongoing concern were threatened by criminal or civil penalties?

2. As Bill Shughart points out, BP did not own the Deepwater Horizon platform, but leased it from a company called Transocean. To Bill this suggests “a classic principal-agent problem in which the duties and responsibilities of lessor and lessee undoubtedly were not spelled out fully, especially with respect to maintenance and testing of the rig’s blowout preventer as well as to the advisability of installing a second ‘blind sheer ram,’ which may have been able to plug the well after the first (and only one then in service) failed to do so.” Would BP have paid more attention to safety if it owned, rather than leased, the platform? (more…)

7 comments 20 July 2010

Hayek Interviews

| Peter Klein |

In 1983 the Earhart Foundation sponsored a lengthy set of interviews with F. A. Hayek in Los Angeles. The transcripts have long been available (and form the basis of the interview parts of Hayek on Hayek), but the complete set of videos has just now been put online, courtesy of the Universidad Francisco Marroquín. The interviewers are an impressive lot as well: James Buchanan, Armen Alchian, Axel Leijonhufvud, Robert Bork, Tom Hazlett, Jack High, Bob Chitester, Leo Rosten, and Earlene Craver. (I hardly recognized the youthful Hazlett!) You can also get the transcripts, if you prefer plain text.

2 comments 14 July 2010

Property Rights and Modularity

| Dick Langlois |

The Schumpeter Society conference in Aalborg has just ended, and I’m on the train to Copenhagen before heading home tomorrow. Like Peter, I was also at the ISNIE conference in Stirling. Of the three conferences I attended on this trip, ISNIE gets the award for best substance, something I judge by whether I learned something interesting that I hadn’t known. Great plenaries with Ostrom and Williamson, as well as Bruno Frey on the economics of happiness and Pablo Spiller on regulation. I hadn’t been familiar with Spiller’s concept of third-party opportunism in government contracting. Some of the parallel sessions were also good, including sessions involving always-reliable people like Lee Alston and Gary Libecap. But perhaps the most interesting papers I heard were by Henry Smith of Harvard Law School, whom I had never met before.

Smith has a modularity theory of property rights, one very much in line with my own thinking on the issue. As Smith writes in one of his papers given at the conference,

property sets up modular structures that manage the complexity of the interactions of actors with respect to resources. A starting point for property is to use an exclusion strategy to define the “thing” and then to delineate rights wholesale as a first cut through the interface between the bubble defined by the exclusion strategy and the rest of the world. Thus, . . . the interface between the basic package of rights to a car and the rest of the world is a simple one behind which much information is hidden. In this way, the structure of rights is modular. As a method of managing complexity modularity relies on a system’s being nearly decomposable, that is, one in which there are clusters of elements that interact relatively intensely with each other but which interact more sparsely with elements of other clusters.

This is a version of what lawyers call the in rem view. What I learned that I hadn’t known is that this is the polar opposite of Coase’s theory of property rights. It turns out that Coase is an extreme legal realist. That is, like legal realists, Coase thinks of property as a bundle of rights to do specific things — emit sparks, make noise, etc. The trouble with this view is that it is non-modular (more technically: non-decomposable) and creates a spaghetti-tangle of interactions among rights holders that raises transaction costs. The in rem view is perfectly consistent with Coasean bargaining, of course, since it is just a starting point from which people can slice off specific pieces if they choose. (Side note: I had been wanting to post something about a paper by Tom Hazlett and Vernon Smith that credits Coase with $17 billion in welfare losses foregone because of his influence on how spectrum now gets allocated.)

At the same session, Gillian Hadfield of USC had a paper arguing that the market for legal services has not kept pace with the needs of the new economy. I saw this a paradigmatic dynamic-transaction-costs story. Google is internalizing legal services for the same reason Chandlerian corporations in the nineteenth century internalized complementary production processes the market was not yet well enough developed to provide. As Hadfield pointed out, the inability of market institutions to supply these new kinds of legal services has a lot to do with the tight regulation the government exercises over the supply of such services.

7 comments 24 June 2010

Legal and Economic Perspectives on Contracts

| Peter Klein |

Law professor Lewis Kornhauser and economist Bentley MacLeod have teamed up to provide a multidisciplinary perspective on contracts:

Contracts between Legal Persons
Lewis A. Kornhauser, W. Bentley MacLeod
NBER Working Paper No. 16049
Issued in June 2010

Contract law and the economics of contract have, for the most part, developed independently of each other. In this essay, we brieﬂy review the notion of a contract from the perspective of lawyer, and then use this framework to organize the economics literature on contract. The review thus provides an overview of the literature for economists who are interested in exploring the economic implications of contract law. The title, Contracts between Legal Persons, limits the review to that part of contract law that is generic to any legal person. A legal person is any individual, ﬁrm or government agency with the right to enter into binding agreements. Our goal is to discuss the role of the law in enforcing these agreements under the hypothesis that the legal persons have well deﬁned goals and objectives.

The paper is unfortunately behind the NBER firewall. Note in the comments if you find an ungated version.

Gordon Smith’s chapter in the forthcoming Elgar TCE Handbook, “Legal Precursors of Transaction Cost Economics,” is also worth a look.

3 comments 10 June 2010

Duke LLM in Law and Entrepreneurship

| Peter Klein |

We mentioned before Vanderbilt’s PhD program in law and economics and Arizona’s program in law and entrepreneurship. Now Duke Law School is offering an LLM degree in law and entrepreneurship. “Open to an inaugural class of about 20 JD graduates, the curriculum will blend rigorous academic study relating to the legal, business, institutional, strategic, and public-policy frameworks and considerations that apply to entrepreneurs and innovation, with practice and research opportunities that allow each student to develop skills in representing clients.” Obviously, this is a program for lawyers, not for entrepreneurship scholars or management practitioners, but there may be lessons here for business schools and other academic units seeking to offer interdisciplinary programs in entrepreneurship studies. I particularly appreciate the Duke program’s broad, functional concept of the entrepreneur: “[T]he entrepreneurship LLM will not only be ideal for the entrepreneur, but also for those in large institutions and firms who operate with the spirit of an entrepreneur.”

Add comment 2 June 2010

Intellectual Steam

| Dick Langlois |

There’s nothing like a rousing academic argument, especially when it deals with an intriguing historical case. “The Fable of the Keys” by Liebowitz and Margolis is the paradigm here. I recently stumbled upon another example, the (apparently ongoing) dispute that pits George Selgin and John Turner against Michele Boldrin and David Levine on the question of to what extent James Watt’s steam-engine patents retarded innovation in steam technology and slowed the British industrial revolution.

The Newcomen steam engine was a low-pressure device that, by using steam to create a vacuum, actually used air pressure to drive the engine. Watt invented and patented an improvement to the vacuum engine that involved a separate condenser to cool the steam, thus increasing efficiency. On the strength of his patent, Watt was bankrolled by the industrialist Matthew Boulton, and together they licensed the technology to others and did their best to block competing technology. Boldrin and Levine claim that the Watt patent constituted a wide-scope blocking patent, of the kind described by Merges and Nelson, which slowed development of rival technologies, including the high-pressure steam engine that was to be crucial in textiles and elsewhere. As a result, the Boulton-Watt patents and legal stratagems “delayed the industrial revolution by a couple of decades.” Selgin and Turner take issue with both facts and conclusions, arguing that patent law at the time, which derived from the 1625 Statute of Monopolies, actually forbade the patenting of a general idea and insisted that an innovation be instantiated in specific technology, in this case in the form of the condenser. In other words, they argue that patent scope was kept sensibly low in eighteenth-century Britain, something of which Merges and Nelson would approve. Thus Boulton and Watt could not, and in fact did not, slow the development of high-pressure steam through intellectual property, though they may have had an effect on the culture of contemporary inventors, who doubted the economies and feared the dangers of high-pressure steam at a time when complementary metallurgical technology was not yet up to the task. (Note to Selgin and Turner: here is a better reference on the dangers of high-pressure boilers in American steamboats.) (more…)

4 comments 19 May 2010

Manne on Fama and French

| Peter Klein |

An open letter to Gene Fama and Ken French from Henry Manne (also running today at Truth on the Market):

Dear Gene and Ken:

I must say that I was totally flabbergasted when I read your recent blog posting on insider trading. I know that your usual posts on investments, which I often cite to friends, are well-informed and empirically supported; your work over the years on these topics is important and influential — and rightly so. Unfortunately, in this post, you have deviated from your usual high quality. Anyone current on the topic of insider trading will recognize that you have been careless in your selection of anti-insider-trading arguments and that you omitted from your brief note the major part of the argument about insider trading: whether and how much it contributes to market efficiency. To say this is a strange omission coming from Fama and French would be an understatement.

Your first error is to assume that the insider trading debate is about informed trading only by “top management.” I suspect that this error may flow from my original argument for using insider trading to compensate for entrepreneurial services in a publicly held company, a matter you do not mention and which I will not pursue here except to note that “entrepreneurial services” does not equate to top management. Strangely no one seems to notice that most of the celebrated cases on the subject have not involved corporate personnel at all (a printer, a financial analyst, a lawyer, and Martha Stewart). (more…)

Add comment 17 May 2010

Third Searle Center Entrepreneurship Symposium

| Peter Klein |

The schedule is up for the Third Annual Searle Research Symposium on the Economics and Law of the Entrepreneur, 17-18 June 2010 in Chicago. Registration information is here. I participated in the 2008 version and enjoyed it very much.

Add comment 2 April 2010

Posner on Institutions and Organizations, Round Two

| Peter Klein |

Remember the infamous Posner-Coase-Williamson exchange from JITE, 1993? Posner dismissed the New Institutional Economics as a derivative form of Posnerian law and economics, prompting unhappy replies from Coase and Williamson. Here’s Coase:

Posner [1993, 79] says that the first part of his paper describes “the conception of the field [the new institutional economics] held by Ronald Coase.” Reading this part of his paper recalled to my mind Horace Walpole’s opening remarks in his book on King Richard the Third: “So incompetent has the generality of historians been for the province that they have undertaken, that it is almost a question, whether, if the dead of past ages could revive, they would be able to reconnoitre the events of their own times, as transmitted to us by ignorance and misrepresentation” (Walpole [1768, 1]). I have only one foot through the door but should the final yank come before this piece is published, Horace Walpole’s words would apply exactly to Posner’s highly inaccurate account of my views.

Adds Williamson, wryly: “Richard Posner is a prolific writer and distinguished jurist. He is frequently asked to speak with wisdom and authority on many issues. Whether he hits the mark or misses varies with his depth of knowledge and understanding of those issues. . . . I content that Posner’s [1993] commentary mainly misses.”

Now Geoff Hodgson has produced a reboot: a long essay by Posner in the Journal of Institutional Economics titled “From the New Institutional Economics to Organization Economics: with Applications to Corporate Governance, Government Agencies, and Legal Institutions,” with replies from Jürgen Backhaus, Bruno Frey, Lin Ostrom, John Roberts, Tom Ulen, and several others (but not Coase or Williamson!). Posner focuses almost exclusively on the principal-agent problem, perhaps unaware that information, delegation, coordination, and adaptation are also important issues in organizational economics. His main conclusion seems to be that both private firms and public agencies are equally inefficient. Interesting reading, to be sure (and much better than Posner’s solipsistic essay on his conversion to Keynesianism, inexplicably published by the New Republic).

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Add comment 25 March 2010

Mannepalooza at Austrian Scholars Conference

| Peter Klein |

Tune in here at 3:45 EST today for a live broadcast of the ASC session, “The Contributions of Henry G. Manne,” organized by yours truly. Panelists include me, Alexandre Padilla, Richard Vedder, Thomas DiLorenzo, and Henry Manne. And buy your copy of the Collected Works.

Update: audio files are now available: Klein, Padilla, Vedder, DiLorenzo, Manne.

2 comments 12 March 2010

Unquenchable

| Dick Langlois |

I attended an interesting lecture on Thursday, part of the University’s Edwin Way Teale lecture series on the environment. Normally these lectures do not tend, shall we say, to take perspectives that O&M readers would find congenial. But this lecture, by Robert Glennon of the University of Arizona Law School, was interesting along a number of dimensions. The talk was based on his book Unquenchable: America’s Water Crisis and What To Do About It. Here is the abstract:

From manufactured snow for tourists in Atlanta to trillions of gallons of water flushed down the toilet each year, Dr. Robert Glennon reveals the heady extravagances and everyday inefficiencies that are sucking the nation dry. The looming catastrophe remains hidden as the government diverts supplies from one area to another to keep water flowing from the tap. But sooner rather than later, the shell game has to end. And when it does, shortages will threaten not only the environment, but every aspect of American life. America must make hard choices — and Glennon’s answers are fittingly provocative. He proposes market-based solutions that value water as both a commodity and a fundamental human right.

The talk was interesting not only in that I learned a few things about the screwed-up water system in the U. S. (the broad contours of which I was vaguely familiar with) but also in that it presented an interesting case study in rhetoric. Glennon spent most of the talk revving up the environmentalist crowd, with lots of show and tell about the effects of bad water policy and a tour through various command-and-control policies that environmentalists might think of to fix the situation. (He even paused to make fun of Ann Coulter’s claim that the flush toilet is man’s greatest invention.) But Glennon’s bottom line, revealed at the very end, is that the only thing that will fix the problem is properly assigning property rights and trading those rights on markets. This was the conclusion I was expecting, not only because of the abstract but also because Glennon has an NBER Working Paper with Gary Libecap. Maybe this is the way to go in selling market-based solutions.

4 comments 8 March 2010

The Best and the Brightest

| Dick Langlois |

I read Peter’s post about paternalism — and the limits of smart people in government — just after I read about the death of Carl Kaysen, long-time MIT economist and one-time Kennedy advisor. Obituaries praise Kaysen for his role as a policy intellectual of great scope, especially in the area of nuclear non-proliferation. But they either fail to mention, or mention with considerable approval, Kaysen’s pivotal role in the famous 1954 United Shoe Machinery case. Kaysen’s view of the case, and of the role of economic analysis in antitrust, is a key example of what Williamson calls the “inhospitality tradition” — that any kind of contract we don’t understand must therefore be anticompetitive. In the eyes of many present-day economists, Kaysen is implicated in having destroyed the American shoe machinery industry and with it the American shoe industry. (The post-mortem is by Masten and Snyder.) Not exactly McNamara in Vietnam, but worth mentioning amid the hagiography of Kaysen, not to mention the reawakened culture of elitist decision-making in Washington.

3 comments 20 February 2010

Apocalypse Averted

| Dick Langlois |

In a recent post, I lamented the willingness of pundits (and dissenting Justices) to see rights as a consequential exercise: we should restrict the speech of group X, in this case private corporations, because allowing such speech would lead to a bad outcome, in this case the corruption of democracy by corporate interests. (Feel free to substitute here your own favorite candidate for silencing and your own associated bad outcome.) But, of course, those who argue in this manner must also demonstrate that the asserted bad outcome would actually happen. A recent article in the Times — bless some reporter’s or editor’s contrarian heart — asks the question: so, what effect does corporate money actually have on democracy?” The answer seems to be: none at all. One of the economists cited is Peter’s Missouri colleague, and my former student, Jeff Milyo: “There is just no good evidence that campaign finance laws have any effect on actual corruption.”

And while we are at it, a study by the Insurance Institute for Highway Safety finds no effect of cell phone laws on traffic accidents. This hasn’t stopped Connecticut’s Governor from calling for even stricter cell phone laws.

6 comments 31 January 2010

Now That’s a Complete Contract!

| Peter Klein |

A major theme of the contracting literature in organizational economics is that formal contracts are inevitably incomplete, meaning that they do not specify actions and remedies for every possible set of circumstances. Given genuine uncertainty about the future, parties may decide that formal contracts to not adequately protect relationship-specific investments, providing an important rationale for vertical integration or another mechanism to protect quasi-rents (alliances, equity-sharing arrangements, reputation, and other “hybrids”).

A recent WSJ piece suggests that writing complete contracts may not be so hard after all:

Decked out in sequined black and gold dresses, Anne Harrison and the other women in her Bulgarian folk-singing group were lined up to try out for NBC’s “America’s Got Talent” TV show when they noticed peculiar wording in the release papers they were asked to sign.

Any of their actions that day last February, the contract said, could be “edited, in all media, throughout the universe, in perpetuity.”

My Mom says she once told me I was the best little boy in the world, to which I responded, “and all the planets too?” The WSJ gives several examples of similarly expansive coverage:

The terms of use listed on Starwars.com, where people can post to message boards among other things, tell users that they give up the rights to any content submissions “throughout the universe and/or to incorporate it in other works in any form, media or technology now known or hereafter developed.”

In a May 15, 2008, “expedition agreement” between JWM Productions LLC, a film-production company, and Odyssey Marine Exploration Inc., a shipwreck-exploration outfit, JWM seeks the rights to footage from an Odyssey expedition. The contract covers rights “in any media, whether now known or hereafter devised, or in any form whether now known or hereafter devised, an unlimited number of times throughout the universe and forever, including, but not limited to, interactive television, CD-ROMs, computer services and the Internet.”

And my personal favorite:

A 189-word sentence in a September agreement between Denver-based Spicy Pickle Franchising Inc. and investment bank Midtown Partners & Co. — which has helped raise capital for the sandwich and pickle shops dotted across the region — unconditionally releases Spicy Pickle from all claims “from the beginning of time” until the date of the agreement.

Says Spicy Pickle’s Marc Geman, “the length of the paragraph is only limited by the creativity of the attorney.”

4 comments 29 January 2010

New Issue of ICC

| Dick Langlois |

A new issue of Industrial and Corporate Change is out (TOC here) with a bunch of interesting articles. Prominent among them is a well-researched and nicely written piece by Pierre Desrochers that argues a politically unpopular view about corporations and the environment. Free speech in action?

Add comment 25 January 2010

Paging John Stuart Mill

| Dick Langlois |

I have been amused by the firestorm of outrage in the press over the Supreme Court’s recent mild affirmation of the free-speech rights of corporations. As many readers of this blog will probably appreciate, the point of a right to free speech is that it must apply even to speech, and to speakers, we don’t like. Many if not most angry commentators, like the writers of the Times editorial on the subject, don’t even bother to worry about the nature of rights. To the Times and many others, constitutional jurisprudence is a purely consequentialist exercise no different from legislation (which, sadly, may be often be true in practice). But other writers and organizations aghast at the Court’s decision have a thorny problem of argument, to the extent that they have themselves invoked the First Amendment in an effort to protect speech of which they approve (or, more generally, to protect specific sub-spheres of discourse in which they themselves participate). A case in point is People for the American Way, which has called for a constitutional amendment to outlaw corporate political speech (via William Saletan). “People For the American Way,” they write, “has been at the forefront of defense of free speech and the First Amendment for almost 30 years. We continue in that role today.” In order to square the circle, PFAM and like-minded pundits and Justices have to find a way to define corporate speech as not speech. The answer? Spending is not speech and corporations aren’t people. So: does this mean that it would be OK under this logic for the government, say, to decree that the New York Times must limit its editorial budget — limiting dollars not ideas, after all — because the Times is a corporation not an individual? Why should this logic not apply to the other Amendments as well? The Times should flat-out not have freedom of the press because it is a corporation; and the Roman Catholic Church should certainly not have freedom of religion.

My favorite line, from Justice Stevens (in dissent): “The Court’s blinkered and aphoristic approach to the First Amendment may well promote corporate power at the cost of the individual and collective self-expression the Amendment was meant to serve.” So freedom of speech is really a neoclassical or Benthamite exercise in which we aren’t trying to protect individual (let alone corporate) speech but are instead trying to maximize the total amount of self-expression in society.

In its recent obituary of Erich Segal, the Times cites the following cringe-inducing line, spoken by college-student protagonist Oliver Barrett IV, as a measure of the literary caliber of Segal’s novel Love Story: “Jenny, for Christ’s sake, how can I read John Stuart Mill when every single second I’m dying to make love to you?” This suggests that many a Justice, editorial writer, and pundit must have fallen prey to similar distractions in college. They certainly failed to read John Stuart Mill.

5 comments 25 January 2010

The Collected Works of Henry Manne

| Peter Klein |

Via Geoff Manne, a description and ordering information for the new Collected Works of Henry Manne, produced by Liberty Fund. A great collection of scholarly articles, reviews, and shorter popular pieces divided into three volumes, “The Economics of Corporations and Corporate Law,” “Insider Trading,” and “Liberty and Freedom in the Economic Ordering of Society.” Order your copy today!

Add comment 5 January 2010

CFP: “Contracts, Procurement, and Public-Private Arrangements”

| Peter Klein |

It’s 14-15 June 2010 in Paris. Submissions are due 15 February. Stéphane Saussier is organizing, so you know it will be good. From the CFP:

This conference focuses on the recent developments in contract theories. Papers are invited on all topics of contract theories including:

relational contracting,

transaction costs,

renegotiations,

incentives,

attribution mechanisms,

incomplete contracting

contract design, etc.

Papers presented may be theoretical or applied. A special attention will be given to proposals addressing issues related to procurement and public-private arrangements.

1 comment 16 December 2009

The Limits of Antitrust Revisited

| Dick Langlois |

I also just returned from an interesting conference, this one at the Searle Center at Northwestern Law School. The topic was the 25th anniversary of Frank Easterbrook’s 1984 paper “The Limits of Antitrust.” Here’s the agenda. I don’t think the papers are all available online, but the plan is to publish them eventually.

Thursday, October 29th

Welcome and Introduction

Henry N. Butler, Executive Director, Searle Center on Law, Regulation and Economic Growth

Opening Remarks: “The Limits of Antitrust” and the Chicago School Tradition, George Priest, Yale Law School

Session One – Easterbrook on Errors, Fred S. McChesney, Class of 1967 James B. Haddad Professor of Law, Northwestern Law

Session Two – The Limits of Antitrust in the New Economy, Joshua D. Wright, George Mason University School of Law, and Geoffrey A. Manne, Lewis & Clark Law School and ICLE .

Dinner Keynote Address: Ronald A. Cass, Dean Emeritus, Boston University School of Law.

Friday, October 30th

Session Three – The Limits To Simplifying the Application of Current U.S. Antitrust Law, Richard S. Markovits, John B. Connally Chair, University of Texas at Austin, School of Law.

Session Four – Microsoft and the Limits of Antitrust, William H. Page, Marshall M. Criser Eminent Scholar, University of Florida, Levin College of Law.

Closing Remarks: Hon. Frank H. Easterbrook, United States Court of Appeals for the Seventh Circuit.

Add comment 3 November 2009

Sidak and Teece on Dynamic Competition

| Peter Klein |

A “neo-Schumpeterian” framework for antitrust analysis that favors dynamic competition over static competition would put less weight on market share and concentration in the assessment of market power and more weight on assessing potential competition and enterprise-level capabilities. By embedding recent developments in evolutionary economics, the behavioral theory of the firm, and strategic management into antitrust analysis, one can develop a more robust framework for antitrust economics.

Via Truth on the Market (where my colleague Mike Sykuta has joined the blogging team). On a related note, see Jesús Huerta De Soto’s Theory of Dynamic Efficiency. It was a pleasure meeting De Soto at last week’s fantastic Mises conference in Salamanca, where he spoke on dynamic efficiency (based on the book’s first chapter). You have to love medieval university towns. We held our meetings in the Convent of San Esteban, including breakfast in the room where Christopher Columbus reportedly waited to hear if Queen Isabella would finance his little expedition West.

2 comments 3 November 2009

Williamson’s “Economics of Institutions” Syllabus

| Peter Klein |

I was pretty clueless when I started graduate school. I had good undergraduate training in economics, and had the privilege of attending my first Austrian seminar, where I met Murray Rothbard, Hans Hoppe, Roger Garrison, and David Gordon, before beginning graduate work. But I really didn’t know exactly what I wanted to study. Like most economics PhD students, I wasn’t exactly turned on by the core theory and econometrics classes. Then I took Williamson’s course ECON 224, “Economics of Institutions,” and it was a revelation. The syllabus dazzled me, with readings from Coase, Simon, Hayek, North, Arrow, Chandler, Alchian, Demsetz, Ben Klein, and many other brilliant and thoughtful economists, along with sociologists, political scientists, historians, and others. I decided then that institutions and organizations would be my area, and I’ve never looked back.

Since Monday I’ve been digging through my files trying to find a copy of that syllabus. I found my folder for that course, containing notes, readings, and exams (no, you can’t see my test scores), but for some reason the syllabus has disappeared. I must have taken it out to study, perhaps when designing my own course in institutions and organizations, and it didn’t make its way back into the file. But I did find an older copy, the Fall 1988 edition. That was, I believe, Williamson’s first year at Berkeley, after arriving from Yale (where he didn’t teach PhD courses, his main appointment being in the law school). I took the course in 1989, but the syllabi are very similar. So here it is. Note the range of authors, journals, subject areas. Not at all like the typical economics PhD course!

3 comments 16 October 2009

Stewart Macaulay

| Peter Klein |

Here’s a lecture I wish I could have attended: Stewart Macaulay gave today’s Annual Distinguished Lecture at BYU Law School. Macaulay, as noted in BYU’s blurb, is “an internationally recognized scholar and a leader of the law-in-action approach to contracts. He pioneered the study of business practices and legal work regarding contract law. He is also one of the founders of the law and society movement.” More important for our purposes, Macaulay’s emphasis on what Williamson calls “private ordering” — the governance of contractual relations by convention, private arbitration, and firms’ own “internal courts” — has been extremely influential for transaction cost economics.

Here’s the abstract of Macaulay’s lecture:

A Contract Crisis? “It Ain’t Necessarily So.”

There are several proposals for a new contract law. On one hand, our economic crisis suggests that many see the need to rewrite or rescind contracts to reflect the drastically changed conditions of the past few years. On the other hand, there are proposals for a far more formal law of contracts than are found in the Uniform Commercial Code and the Restatement (2d) Contracts. Drawing on calls for “a new legal realism,” Professor Macaulay suggests that there is much that we don’t know about the need for and the consequences of such major revisions. He stresses, however, that a key word in Ira Gershwin’s lyrics from “Porgy and Bess” is “necessarily.” The first step must be a better picture of contract law in action. Such a picture might support some but not other changes.

I hope the lecture will appear soon on Macaulay’s website, and that Gordon Smith will post reactions at the Glom.

Add comment 1 October 2009

Elgar Companion to Transaction Cost Economics

| Peter Klein |

Mike Sykuta and I are editing a volume for the Elgar Companion series, The Elgar Companion to Transaction Cost Economics. The volume is currently in production with an expected publication date in mid-2010. We’ve created a page here on O&M with more information, including a table of contents and some sample chapter drafts. Enjoy!

2 comments 30 September 2009

QWERTY in the Long Run

| Dick Langlois |

The new issue of Industrial and Corporate Change has an article by Andreas Reinstaller and Werner Hölzl called “Big Causes and Small Events: QWERTY and the Mechanization of Office Work.” Although it’s an interesting paper in many respects, I think it fails in its avowed aim to defend Paul David against the attack of Liebowitz and Margolis. Mostly, they don’t get L&M right (and explicitly get them wrong in footnote 1). The issue is whether the QWERTY keyboard is an example of what L&M call “third-degree” path dependency, that, is path dependency leading to an outcome that is both regrettable ex post and would somehow have been remediable ex ante. The criterion of “remediable” to R&H seems to be whether contemporaries “knew about” superior alternatives. That’s not quite right, of course: the real issue is whether any alternative institutional structure could have done a better job of choosing a standard under the conditions of knowledge at the time. Their only example is the existence of a French “Ideal” keyboard layout (which some people “knew about”) that was swept aside by the tidal wave of the American QWERTY standard (and became AZERTY in France). But they have no evidence about how much better this keyboard was — or if it was better at all. In footnote 1 they cite Donald Norman’s interesting book on design to the effect that the Dvorak keyboard is 10 per cent faster than QWERTY. But (A) Norman’s point in the book is how insignificant this difference is and (B) that doesn’t demonstrate third-degree path dependency, since no one “knew about” the Dvorak keyboard until Dvorak invented it (an extremely laborious process, according to Norman).

Again, I don’t want to be too hard on R&H: I think there’s a lot that’s interesting in the paper, especially the discussion of the mechanization of office work. What really struck me in this context, however, is how irrelevant, or at least dated, the QWERTY saga is. And I say this not for the usual reason: that computers now allow us to have any keyboard layout we like. Rather, what struck me is that the production of documents has long since become demechanized, making even more-than-nominal differences in typing speed irrelevant. Since we now all (or almost all) compose right on the computer, and never send our documents out to the typing pool, manuscript production has become a craft again. What is slowing us down is how quickly we think of something to say, not how fast we can type. And I doubt that, fifties nostalgia notwithstanding, we are unlikely to see the return of the typing pool anytime soon. So, from a historical perspective, QWERTY will have been technically inefficient (though not therefore economically inefficient) only for that brief historical period between the invention of Dvorak and the coming of the personal computer.

The same issue of ICC also has a paper by Ashish Arora and coauthors that’s worth a look.

3 comments 25 September 2009

Idea for Historical Law and Economics Thesis

| Nicolai Foss |

Apropos the always-topical issue of the efficacy of the death penalty, I was recently told by Siegwart Lindenberg that one of Gordon Tullock’s characteristically quirky proposals for reform was to institute the death penalty as the sanction that any crime would meet in the criminal justice system. However, there was a twist, because although any criminal would receive a death penalty, not all criminals would actually be executed. Specifically, all criminals would be strapped to the chair, but there was only a probability that the button would be pressed, the probability depending on the severity of the crime. Because of risk aversion and a tendency to overestimate probabilities (and for the Draconian symbolic value), this scheme would put an effective end to much crime. (I haven’t been able to find a reference for this idea; perhaps it exists only in the oral tradition that surrounds the Tullock figure).

It is easy to dismiss the Tullock scheme as “cruel,” “inhuman,” “far out,” “not practicable,” etc. But perhaps it does have a historical precursor. At its height the criminal law of England (the “Bloody Code”) included more than 220 crimes that were punishable by death, including “being in the company of gypsies for more than one month” (here is the Wiki). Other countries have had similar broad approaches to which crimes were punishable by death, though perhaps few as Draconian as England’s. However, one has to bear in mind that there generally was a pardon system, and that it is quite likely that some of the weirder crimes leading to death sentences were more likely to be pardoned than the really serious ones (e.g., a pardon may have been more likely in the case of the “crime” of being in the company in gypsies than outright murder). Could it be that this pardon system functioned in such a way that the probabilities of actual execution directly reflected the real severity of the crime? It seems likely. The data are definitely there. It is just collecting them and doing the analysis.

4 comments 23 August 2009

Greif Under Fire Again

| Peter Klein |

We noted previously Jeremy Edwards and Sheilagh Ogilvie’s challenge to Avner Greif, contenting that he misread his primary source material, and Greif’s response. Now Charles Rowley has published a paper in Public Choice accusing Greif of academic dishonesty, namely by failing to cite Janet Landa’s prior work on the economics of identity and trust:

This commentary demonstrates that Avner Greif, through his citation practices, has denied Janet Landa her full intellectual property rights with respect to her contributions to the economic analysis of trust and identity. He has done so by systematically failing to cite her published papers in this field, incidentally promoting his own publications as meriting priority. In consequence, he has effectively blocked out Janet Landa’s work from the mainstream economics literature, albeit not from the literature of law and economics, where his own writings have not been directed.

It’s an odd piece. I’m not sufficiently familiar with Landa’s work to evaluate its place in the history of thought in this area, or to judge whether Greif has appropriated her ideas without attribution. Rowley doesn’t accuse Greif of plagiarism, only of failing to cite an important predecessor and overstating the novelty of his own work. This is a difficult claim to substantiate; obviously the evaluation of prior contributions in one’s own area is highly subjective. And the implication (later in the piece) that Greif’s citation practices contributed to his Genius Award seems like a cheap shot. It is true, however, that contemporary economists tend to be woefully ignorant of the history of economic thought (and, as Rowley implies, that game theorists have what might be called a “healthy sense of self”).

Update: I missed earlier discussions of the Rowley piece at Monkey Cage and Crooked Timber. The Monkey Cage commentary is disappointing, mostly ad hominem snarks at Rowley, the field of public choice, and (most bizarre, but it’s Brad Delong), the Mont Pelerin Society. Henry’s analysis at Crooked Timber is more serious, and I think he gets it right.

1 comment 13 August 2009

Coasean Bargaining Around Wrigley Field

| Peter Klein |

While enjoying the Phillies’ 12-inning victory over the Cubs Tuesday night Joe Mahoney, Jongwook Kim, and I talked about the implications of the Coase Theorem for the Wrigley Rooftops. The rooftop seats are still there — and some are quite fancy — despite many attempts by the Cubs over the years to have them removed, as beneficiaries of an unwarranted positive externality. Apparently a few years back the Cubs sought an injunction against the rooftop owners on grounds of copyright infringement, and most of the owners agreed in an out-of-court settlement to pay royalties to the team in exchange for official endorsement.

One can imagine other ways to internalize the externality — the team could build a wall to obscure the view, buy out the rooftop buildings’ owners, or pay them to take down the seats. There are only a dozen or so buildings, so I don’t imagine that the bargaining costs are very high, suggesting that the current arrangement is the one that maximizes joint surplus, but some of you readers must be much more familiar with the details. What’s going on, from a Coasean perspective? Certainly this is an interesting example for a classroom discussion of property rights and the Coase Theorem. I thought I’d find several online discussions but a quick Google search came up with just one law-review article. It seems that more recently, the club has been going after the rooftop owners not for selling seats, but for using the Cubs logo without permission.

10 comments 13 August 2009

Attack of the Public Finance Utility Monsters

| Dick Langlois |

I just saw this amusing abstract from Greg Mankiw. I think it will be far too subtle for most people.

The Optimal Taxation of Height: A Case Study of Utilitarian Income Redistribution

Should the income tax include a credit for short taxpayers and a surcharge for tall ones? The standard Utilitarian framework for tax analysis answers this question in the affirmative. Moreover, a plausible parameterization using data on height and wages implies a substantial height tax: a tall person earning $50,000 should pay $4,500 more in tax than a short person. One interpretation is that personal attributes correlated with wages should be considered more widely for determining taxes. Alternatively, if policies such as a height tax are rejected, then the standard Utilitarian framework must fail to capture intuitive notions of distributive justice.

Extra credit: how would such a tax affect NBA salaries — like that of UConn’s seven-foot-three Hasheem Thabeet, who was taken number two in the recent draft?

4 comments 31 July 2009

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