Econ 522
Economics of Law
Dan Quint
Spring 2012
Lecture 9
Reminders
 Second homework due Thursday night
 First midterm next Wednesday (Feb 29), in BIRGE 145
1
Recently: applications/examples of property
law…
 What things can be privately owned?

Intellectual Property – patents, copyrights, trademarks, trade secrets
 What can/can’t an owner do with his/her property?

Restraints on alienation, unbundling, inalienability
 How are property rights established?


First Possession versus Tied Ownership
Adverse Possession
 What remedies are given?


Injunctions vs damages; temporary vs permanent damages
Private necessity (emergency) as exception to property protection2
Discussion question
 Should record labels sue illegal music downloaders?
3
Today: two important limitations on property
rights imposed by government
 Government can limit how you use your property

Regulation
 The government can take your property

“Eminent domain”
4
Takings
5
Takings
 Public goods privately provided  undersupply
 One role of government: provide public goods



Defense, roads and infrastructure, public parks, art, science…
To do this, government may need land
…which might already belong to someone else
 In most countries, government has right of eminent domain


Right to seize private property when the owner doesn’t want to sell
This type of seizure also called a taking
6
Takings
 U.S. Constitution, Fifth Amendment:
“…nor shall private property be taken for public use,
without just compensation.”
 Government can only seize private property for public use
 And only with just compensation

Consistently interpreted to mean fair market value – what the owner
would likely have been able to sell the property for
7
Takings
 Why allow takings?
8
Takings
 Why allow takings?
 Why these limitations?

why require compensation?
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Takings
 Why allow takings?
 Why these limitations?

why require compensation?
$10 MM
$9 MM
$3 MM
$1 MM
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Takings
 Why allow takings?
 Why these limitations?


why require compensation?
why only for public use?
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Takings
 Why allow takings?
 Why these limitations?


why require compensation?
why only for public use?
 The government should only take private property (with
compensation) to provide a public good when transaction
costs preclude purchasing the necessary property
through voluntary negotiations
12
Poletown Neighborhood Council v Detroit
 1981: GM was threatening to close Detroit plant

Would cost city 6,000 jobs, millions in tax revenue
 City used eminent domain to condemn entire neighborhood



1,000 homeowners and 100 businesses forced to sell
land then used for upgraded plant for GM
city claimed employment and tax revenues were public goods,
which justified use of eminent domain
 Mich Sup Ct: “Alleviating unemployment and revitalizing the
economic base of the community” valid public purposes;
“the benefit to a private interest is merely incidental”


Overturned in 2004 ruling (Wayne v Hathcock)
Similar case, Kelo v. City of New London (2005 US Sup Ct)
13
Poletown Neighborhood Council v Detroit
 1981: GM was threatening to close Detroit plant

Would cost city 6,000 jobs, millions in tax revenue
 City used eminent domain to condemn entire neighborhood



1,000 homeowners and 100 businesses forced to sell
land then used for upgraded plant for GM
city claimed employment and tax revenues were public goods,
which justified use of eminent domain
 Mich Sup Ct: “Alleviating unemployment and revitalizing the
economic base of the community” valid public purposes;
“the benefit to a private interest is merely incidental”


Overturned in 2004 ruling (Wayne v Hathcock)
Similar case, Kelo v. City of New London (2005 US Sup Ct)
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Regulation
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Multiple forms of public ownership
 Open Access



Anyone free to use the resource
Leads to overutilization (Tragedy of the Commons)
Example: oyster beds
 Unanimous Consent




Opposite of open access – multiple owners must all agree to any
use of the resource
Leads to underutilization
Example: empty storefronts in post-Communist Moscow
“Anti-commons” caused by existing intellectual property
 Political Control/Regulation
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Third form of public ownership: political
control/regulation
Dividing the mountain pasture among individual owners
would require fencing it, which is prohibitively expensive.
Instead, the highland pasture is held in common, with each
village owning different pastures that are separated by
natural features such as lakes and mountain peaks.
If each person in the village could place as many sheep as
he or she wanted in the common pasture, the meadows
might be destroyed and eroded by overuse.
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Third form of public ownership: political
control/regulation
In fact, the common pastures in the mountains of Iceland
have not been overused and destroyed, because the
villages have effective systems of governance.
They have adopted rules to protect and preserve the
common pasture. The sheep are grazed in common
pasture in the mountains during the summer and then
returned to individual farms in the valleys during the winter.
The total number of sheep allowed in the mountain pasture
during the summer is adjusted to its carrying capacity.
Each member of the village receives a share of the total in
proportion to the amount of farmland where he or she
raises hay to feed the sheep in the winter.
18
Similar to how Iceland maintains fishing stock
 Open access would lead to overfishing, deplete fishing
stock
 Government of Iceland decides how much fish should be
caught in total each year
 People own permits which are right to catch a fixed fraction
of each year’s total
 Permits are property – can be bought, sold, etc.
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Regulation
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Regulation: Pennsylvania Coal v. Mahon
 1800s: PA Coal purchased mineral and
support estates, Mahon owned surface
 1921: Kohler Act prohibited “mining of
surface estate
anthracite coal in such a way as to cause
the subsidence of, among other things,
support estate
any structure used as a human
habitation.”
mineral estate
 PA Coal sued government, claiming the
regulation was same as seizing their land
(without compensation)
 “…While property may be regulated to a
certain extent, if regulation goes too far
it will be recognized as a taking.”
21
Regulation: Pennsylvania Coal v. Mahon
 1800s: PA Coal purchased mineral and
support estates, Mahon owned surface
 1921: Kohler Act prohibited “mining of
surface estate
anthracite coal in such a way as to cause
the subsidence of, among other things,
support estate
any structure used as a human
habitation.”
mineral estate
 PA Coal sued government, claiming the
regulation was same as seizing their land
(without compensation)
 “…While property may be regulated to a
certain extent, if regulation goes too far
it will be recognized as a taking.”
22
Regulation: Pennsylvania Coal v. Mahon
 1800s: PA Coal purchased mineral and
support estates, Mahon owned surface
 1921: Kohler Act prohibited “mining of
surface estate
anthracite coal in such a way as to cause
the subsidence of, among other things,
support estate
any structure used as a human
habitation.”
mineral estate
 PA Coal sued government, claiming the
regulation was same as seizing their land
(without compensation)
 “…While property may be regulated to a
certain extent, if regulation goes too far
it will be recognized as a taking.”
23
Regulation: Pennsylvania Coal v. Mahon
 1800s: PA Coal purchased mineral and
support estates, Mahon owned surface
 1921: Kohler Act prohibited “mining of
surface estate
anthracite coal in such a way as to cause
the subsidence of, among other things,
support estate
any structure used as a human
habitation.”
mineral estate
 PA Coal sued government, claiming the
regulation was same as seizing their land
(without compensation)
 “…While property may be regulated to a
certain extent, if regulation goes too far
it will be recognized as a taking.”
24
Blume and Rubinfeld, “Compensation for
Takings: An Economic Analysis”
 Support compensation for regulatory takings




Shifting burden of regulation from owners of affected property to all
taxpayers
Equivalent to selling everyone insurance against harmful regulation
If such insurance were available, people would buy it
But it’s not available, for usual reasons insurance markets may fail




adverse selection
moral hazard
So government should provide it instead…
…by paying compensation for regulatory takings
25
Blume and Rubinfeld, “Compensation for
Takings: An Economic Analysis”
 Support compensation for regulatory takings




Shifting burden of regulation from owners of affected property to all
taxpayers
Equivalent to selling everyone insurance against harmful regulation
If such insurance were available, people would buy it
But it’s not available, for usual reasons insurance markets may fail




adverse selection
moral hazard
So government should provide it instead…
…by paying compensation for regulatory takings
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“Maximum liberty” vs. government’s right to
regulate
 Recent ruling by a Dane County judge


Plaintiffs argued they had “a fundamental right to own a cow,
and to use their cows in a manner that does not cause harm
to a third party”
Judge responded:






“Plaintiffs do not have a fundamental right to own and use a dairy
cow or a dairy herd
Plaintiffs do not have a fundamental right to consume the milk
from their own cow
Plaintiffs do not have a fundamental right to board their cow at
the farm of a farmer
The private contract does not fall outside the scope of the States’
police power
Plaintiffs do not have a fundamental right to produce and
consume the foods of their choice
DATCP has jurisdiction to regulate the Plaintiffs’ conduct”
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Zoning
 Zoning laws

Distinguish industrial areas from residential areas
28
Zoning
 Zoning laws

Distinguish industrial areas from residential areas
 Nollan v California Coastal Commission (US Sup Ct, 1987)




Nollans owned coastal property
Asked for permit to expand building, which would diminish view
Commission: donate a public walking path, and you get permit
Supreme Court: such a deal only legal if there is clear connection –
a nexus – between the harm being done and the remedy
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Zoning
 Zoning laws

Distinguish industrial areas from residential areas
 Nollan v California Coastal Commission (US Sup Ct, 1987)




Nollans owned coastal property
Asked for permit to expand building, which would diminish view
Commission: donate a public walking path, and you get permit
Supreme Court: such a deal only legal if there is clear connection –
a nexus – between the harm being done and the remedy
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Property law: the big-picture question
 What are benefits and costs of…



having property rights at all?
expanding property rights to cover more things?
introducing an exception/limitation to property rights?
 When will benefits outweigh the costs?
End of material on first midterm
 Up next: contract law
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Why do we need contracts?
 Some transactions don’t occur all at once


I’m flying to Boston for Thanksgiving…
…or I hire someone to paint my house…
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Why do we need contracts?
 Some transactions don’t occur all at once



I’m flying to Boston for Thanksgiving…
…or I hire someone to paint my house…
…or you can get $10 for a purple poker chip, but don’t have any
cash on you right now to buy it from someone with a lower number
 A contract is a promise…
 …which enables trade when transactions aren’t concluded
immediately
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Example: the agency (trust) game
Player 1 (you)
Don’t
Trust me
Player 2 (me)
(100, 0)
Share profits
(150, 50)
Keep all the money
(0, 200)
 Subgame perfect equilibrium: I’ll keep all the money; so you
don’t trust me


Inefficient outcome (100 < 200)
And we’re both worse off
34
(One solution: reputation)
35
Another solution: legally binding promises
Player 1 (you)
Don’t
Trust me
Player 2 (me)
(100, 0)
Share profits
(150, 50)
Keep all the money
(125, 25)
 Now we get cooperation (and efficiency)
 Purpose of contract law: to allow trade in situations where
this requires credible promises
36
So… what types of promises should be
enforced by the law?
 “The rich uncle of a struggling college student learns at the graduation party that
his nephew graduated with honors. Swept away by good feeling, the uncle
promises the nephew a trip around the world. Later the uncle reneges on his
promise. The student sues his uncle, asking the court to compel the uncle to
pay for a trip around the world.”
 “One neighbor offers to sell a used car to another for $1000. The buyer gives
the money to the seller, and the seller gives the car keys to the buyer. To her
great surprise, the buyer discovers that the keys fit the rusting Chevrolet in the
back yard, not the shiny Cadillac in the driveway. The seller is equally surprised
to learn that the buyer expected the Cadillac. The buyer asks the court to order
the seller to turn over the Cadillac.”
 “A farmer, in response to a magazine ad for “a sure means to kill grasshoppers,”
mails $25 and receives in the mail two wooden blocks with the instructions,
“Place grasshopper on Block A and smash with Block B.” The buyer asks the
court to require the seller to return the $25 and pay $500 in punitive damages.”
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The Bargain Theory
of Contracts
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The bargain theory of contracts
 Developed in the late 1800s/early 1900s
 A promise should be enforced if it was given as part of
a bargain, otherwise it should not
 Bargains were taken to have three elements



Offer
Acceptance
Consideration
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What is consideration?
 Promisor: person who gives a promise
 Promisee: person who receives it
 In a bargain, both sides must give up something

reciprocal inducement
 Consideration is what the promisee gives to the
promisor, in exchange for the promise
 Under the bargain theory, a contract becomes enforceable
once consideration is given
40
What is consideration?
 Promisor: person who gives a promise
 Promisee: person who receives it
 In a bargain, both sides must give up something

reciprocal inducement
 Consideration is what the promisee gives to the
promisor, in exchange for the promise
 Under the bargain theory, a contract becomes enforceable
once consideration is given
41
The bargain theory does not distinguish
between fair and unfair bargains
 Hamer v Sidway (NY Appeals Ct, 1891)
 Uncle offered nephew $5,000 to give up drinking and
smoking until his 21st birthday, then refused to pay
“The promisee [previously] used tobacco, occasionally drank liquor,
and he had a legal right to do so. That right he abandoned for a period
of years upon the strength of the promise… We need not speculate
on the effort which may have been required to give up the use of
these stimulants. It is sufficient that he restricted his lawful freedom of
action within certain prescribed limits upon the faith of his uncle’s
agreement, and now, having fully performed the conditions imposed,
it is of no moment whether such performance actually proved a
benefit to the promisor, and the court will not inquire into it.”
42
Under the bargain theory, what is the
remedy?
 Expectation damages

the amount of benefit the promisee could reasonably expect from
performance of the promise

meant to make the promisee as well of as he would have been, had
the promise been fulfilled
43
Problems with the bargain theory
 Not that accurate a description of what modern courts
actually do
 Not always efficient

Does not enforce certain promises that both promisor and promisee
might have wanted to be enforceable
44
Problems with the bargain theory
 Not that accurate a description of what modern courts
actually do
 Not always efficient

Does not enforce certain promises that both promisor and promisee
might have wanted to be enforceable

Does enforce certain promises that maybe should not be enforced
45
What does efficiency say about
what promises should be enforced?
46
What promises should be enforced?
 In general, efficiency requires enforcing a promise if both
the promisor and the promisee wanted it to be
enforceable when it was made

different from wanting it to actually be enforced
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What promises should be enforced?
 In general, efficiency requires enforcing a promise if both
the promisor and the promisee wanted it to be
enforceable when it was made

different from wanting it to actually be enforced
 The first purpose of contract law is to enable people to
cooperate by converting games with noncooperative
solutions into games with cooperative solutions

or, enable people to convert games with inefficient equilibria into
games with efficient equilibria
48
What promises should be enforced?
 In general, efficiency requires enforcing a promise if both
the promisor and the promisee wanted it to be
enforceable when it was made

different from wanting it to actually be enforced
 The first purpose of contract law is to enable people to
cooperate by converting games with noncooperative
solutions into games with cooperative solutions

or, enable people to convert games with inefficient equilibria into
games with efficient equilibria
49
So now we know…
 What promises should be enforceable?

For efficiency: enforce those which both promisor and promisee
wanted to be enforceable when they were made
 One purpose of contract law

Enable cooperation by changing a game to have a cooperative
solution
 Contract law can serve a number of other purposes as well

That’s where we’ll pick up Wednesday
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