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《法学相关资料》（英文版）PROPERTY RIGHTS AND PROPERTY LAW

Connecticut. We are grateful for the comments of Doug Allen, Tom Hazlett, Eric Rasmussen, Ian Wills, as well as participants in the Law and Economics Handbook Conference at Stanford Law School, the European School for New Institutional Economics, and a workshop at the University of Michigan.

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Lueck 8 Miceli- Property Lato 1. Introduction This chapter examines the economics of property rights and property law. The purpose is to show how the economics of property rights can be used to understand fundamental features of property law and related extra-legal institutions. The chapter will examine both the rationale for, and the effects of, legal doctrine. The guiding questions are: How are property rights established? What explains the variation in the types of property rights? What governs the use and transfer of rights? And, how are property rights enforced? In answering these questions we argue that property rights and property law can be best understood as a system of societal rule designed to maximize social wealth. They do this by creating incentives for people to maintain and invest in assets, which leads to specialization and trade 1. 1. Property rights and Property Law Property rights have been a subject of discussion among philosophers as well as political and legal scholars long before economists began to examine their origins and consequences Property rights were discussed and implicitly understood by ancient Greek and Roman writers, but it is perhaps Hobbes (1651)who first discusses property in a manner recognizable to modern economists. Indeed Hobbes''state of nature can be viewed as open access dissipation. A wide range of Enlightenment thinkers such as Blackstone(1766), Hume(1739-1740), Locke(1690), and Smith(1776)also discussed property rights. Though they varied in their treatments all considered property rights as fundamental social institutions for creating wealth and preventing We define property rights as the ability (or expected ability) of an economic agent to use an asset (Allen 1999, Barzel 1997, Shavell 2004). As Demsetz(1967)notes in one of the classic early economic analyses, property rights represent a social institution that creates incentives to efficiently use assets, and to maintain and invest in assets. They may or may not be enforced by courts and because the actions of courts are costly, legal rights are but a subset of economic property rights. In addition to law(and statutorily-based regulations enforced by administrative agencies), property rights may be enforced by custom and norms(e.g, Ellickson 1991), and by markets through repeated transactions Property law is the body of court enforced rules governing the establishment, use, and transfer of rights to land and those assets attached to it such as air minerals water. and wildlife Intellectual property law similarly details the conditions under which the courts enforce rights to intellectual assets. In this framework, virtually all, if not all, branches of law are property rights law. Labor law defines the courts role in enforcing rights to one's labor, contract law defines the rights of contracting parties, and so on. Because the economics of property rights originated with a focus on rights to land and associated natural resources(e.g. fisheries, pastures, water) the Enforcement may also be by violence as with the Mafia( Gambetta 1993) 2 Merrill and Smith(2002)and Arruniada(2003), however, argue that the in rem nature of property (real rights versus in personam'use rights typical in contracts) is an important distinction that property rights economists have overlooked since Coase(1960). Merrill and Smith(2002, p. 375)argue that '[t]he simplifying assumptions [of of property' They cite doctrines like the numerus clausus principle, and Arrunada notes the important of title p economists] introduce blind spots that can limit the ability of law and economics scholars to explain the institutio systems as in rem enforcement institutions

Lueck & Miceli – Property Law 1 1. Introduction This chapter examines the economics of property rights and property law. The purpose is to show how the economics of property rights can be used to understand fundamental features of property law and related extra-legal institutions. The chapter will examine both the rationale for, and the effects of, legal doctrine. The guiding questions are: How are property rights established? What explains the variation in the types of property rights? What governs the use and transfer of rights? And, how are property rights enforced? In answering these questions we argue that property rights and property law can be best understood as a system of societal rules designed to maximize social wealth. They do this by creating incentives for people to maintain and invest in assets, which leads to specialization and trade. 1.1. Property Rights and Property Law Property rights have been a subject of discussion among philosophers as well as political and legal scholars long before economists began to examine their origins and consequences. Property rights were discussed and implicitly understood by ancient Greek and Roman writers, but it is perhaps Hobbes (1651) who first discusses property in a manner recognizable to modern economists. Indeed Hobbes’ ‘state of nature’ can be viewed as open access dissipation. A wide range of Enlightenment thinkers such as Blackstone (1766), Hume (1739-1740), Locke (1690), and Smith (1776) also discussed property rights. Though they varied in their treatments all considered property rights as fundamental social institutions for creating wealth and preventing strife. We define property rights as the ability (or expected ability) of an economic agent to use an asset (Allen 1999, Barzel 1997, Shavell 2004). As Demsetz (1967) notes in one of the classic early economic analyses, property rights represent a social institution that creates incentives to efficiently use assets, and to maintain and invest in assets. They may or may not be enforced by courts and because the actions of courts are costly, legal rights are but a subset of economic property rights. In addition to law (and statutorily-based regulations enforced by administrative agencies), property rights may be enforced by custom and norms (e.g., Ellickson 1991), and by markets through repeated transactions.1 Property law is the body of court enforced rules governing the establishment, use, and transfer of rights to land and those assets attached to it such as air, minerals, water, and wildlife.2 Intellectual property law similarly details the conditions under which the courts enforce rights to intellectual assets. In this framework, virtually all, if not all, branches of law are ‘property rights law.’ Labor law defines the court’s role in enforcing rights to one’s labor, contract law defines the rights of contracting parties, and so on. Because the economics of property rights originated with a focus on rights to land and associated natural resources (e.g. fisheries, pastures, water) the 1 Enforcement may also be by violence as with the Mafia (Gambetta 1993). 2 Merrill and Smith (2002) and Arruñada (2003), however, argue that the in rem nature of property (‘real rights’ versus in personam ‘use rights’ typical in contracts) is an important distinction that property rights economists have overlooked since Coase (1960). Merrill and Smith (2002, p. 375) argue that ‘[t]he simplifying assumptions [of economists] introduce blind spots that can limit the ability of law and economics scholars to explain the institution of property.’ They cite doctrines like the numerus clausus principle, and Arruñada notes the important of title systems as in rem enforcement institutions

Lueck 8 Miceli-Property Lato link between 'property law and property rights' is firmly established. This chapter will develol (e.g, contracts, torts) the literature has become so specialized that the connection to the caseg this link by examining property rights generally and property law in particular. Yet, much of th analysis in this chapter is applicable to topics elsewhere in the handbook, though in many conomics of property rights might seem faint The economic analysis of property law is substantially less well developed than the economic analysis of contract law or tort law(for example, there is no generally applicable model), and this chapter reflects this state of the discipline. The economics of property rights, however, developed but mostly without a focus on property law. The disconnection between the Demsetz's(1998)recent entry"Property Rights"in the The New Palgrave Dictionae pl economics of property rights and the economics of property law is longstanding. For example, Economics and the Law makes absolutely no mention of property law, and much of the economics of property rights literature remains ignorant of property law. Similarly, property law scholarship often is ignorant of economics. This is not to say there has not been important work in property law with strong economic underpinnings(e.g, Ellickson 1993, Epstein 1985 Heller 1998, Merrill 1986, Rose 1990), but it is clear that economics has not yet penetrated property law as it has penetrated contract and tort law. While it is common for courses in contract law and tort law to be taught using economics as the guiding framework, an economics- based course in property law is almost unheard of. In part, this chapter seeks to break down this division by bringing the two literatures together 1. 2. Property Rights, Transaction Costs, and the Coase Theorem The economics of property law begins with Coase( 1960), who provides a property rights externalities as a source of market failure requiring government intervention to force the en perspective on the problem of externalities, or social cost. Prior to Coase, economists viewed responsible party to curtail the harmful activity. Consider Coase's famous example of the rancher and farmer with adjacent plots of land. The rancher's cattle stray onto the farmer's land causing crop damage. If the ranchers profit, r(h), and the amount of crop damage, d(h), are functions of the rancher's herd size, h, then the first-best optimal herd size, h*, maximizes r(h) -d(h). That is, h"solves r (h=d (h). This is also the choice that would be made by a single party acting as both the farmer and rancher, Coase's'sole owner' solution. First-best then is synonymous with the zero transaction cost outcome. With separate parties, however, and the absence of a contract between the farmer and the rancher or some type of government intervention(a tax, fine, or regulation), the rancher would choose the herd size to maximize r(h). This results in too many cattle because the rancher adds cattle until (h)=0, which implies h> h*. Thus, the rancher must pay a tax(or face liability) for the damage from straying cattle, or he will expand his herd beyond the efficient(first-best)size s The main exception to this is a deep theoretical literature on takings which is examined in section 8 Merrill and Smith(2001)note this also An exception is Dwyer and Menell (1998) Another important, though little known early property rights contribution is that of Alchian (1965) We assume that <0 and d 20, ensuring a unique optimum

Lueck & Miceli – Property Law 2 link between ‘property law’ and ‘property rights’ is firmly established. This chapter will develop this link by examining property rights generally and property law in particular. Yet, much of the analysis in this chapter is applicable to topics elsewhere in the handbook, though in many cases (e.g., contracts, torts) the literature has become so specialized that the connection to the economics of property rights might seem faint. The economic analysis of property law is substantially less well developed than the economic analysis of contract law or tort law (for example, there is no generally applicable model), and this chapter reflects this state of the discipline. The economics of property rights, however, is well developed but mostly without a focus on property law.3 The disconnection between the economics of property rights and the economics of property law is longstanding. For example, Demsetz’s (1998) recent entry “Property Rights” in the The New Palgrave Dictionary of Economics and the Law makes absolutely no mention of property law, and much of the economics of property rights literature remains ignorant of property law.4 Similarly, property law scholarship often is ignorant of economics. This is not to say there has not been important work in property law with strong economic underpinnings (e.g., Ellickson 1993, Epstein 1985, Heller 1998, Merrill 1986, Rose 1990), but it is clear that economics has not yet penetrated property law as it has penetrated contract and tort law. While it is common for courses in contract law and tort law to be taught using economics as the guiding framework, an economicsbased course in property law is almost unheard of. 5 In part, this chapter seeks to break down this division by bringing the two literatures together. 1.2. Property Rights, Transaction Costs, and the Coase Theorem The economics of property law begins with Coase (1960), who provides a property rights perspective on the problem of externalities, or ‘social cost.’6 Prior to Coase, economists viewed externalities as a source of market failure requiring government intervention to force the responsible party to curtail the harmful activity. Consider Coase’s famous example of the rancher and farmer with adjacent plots of land. The rancher’s cattle stray onto the farmer’s land causing crop damage. If the rancher’s profit, π(h), and the amount of crop damage, d(h), are functions of the rancher’s herd size, h, then the first-best optimal herd size, h*, maximizes π(h)−d(h). That is, h* solves π′(h)=d′(h). 7 This is also the choice that would be made by a single party acting as both the farmer and rancher, Coase’s ‘sole owner’ solution. First-best then is synonymous with the zero transaction cost outcome. With separate parties, however, and the absence of a contract between the farmer and the rancher or some type of government intervention (a tax, fine, or regulation), the rancher would choose the herd size to maximize π(h). This results in too many cattle because the rancher adds cattle until π′(h)=0, which implies hr > h*. Thus, the rancher must pay a tax (or face liability) for the damage from straying cattle, or he will expand his herd beyond the efficient (first-best) size. 3 The main exception to this is a deep theoretical literature on takings which is examined in section 8. 4 Merrill and Smith (2001) note this also. 5 An exception is Dwyer and Menell (1998). 6 Another important, though little known early property rights contribution is that of Alchian (1965). 7 We assume that π″<0 and d″>0, ensuring a unique optimum

Lueck 8 Miceli-Property Lato Note that this solution to the externality problem embodies a particular assignment of property rights--namely, that the farmer has the right to be free from crop damage. Another way to say this is that the farmer is labeled as the "cause"of the harm and therefore must face liability. And if the property right(or the legal liability rule) is structured properly, the rancher will purchase the right to impose crop damage up to the point where the marginal profit from the last steer just equals the marginal damage, yielding an efficient herd size Coase's critique of this conventional, or"Pigovian, perspective on externalities is not that it is wrong per se, but that it is incomplete. To illustrate, suppose that the rancher initially has the economic(and legal) right to impose crop damage without penalty. According to the Pigovian view, this would result in an excessive herd size because the rancher would expand the herd to h. But note that the farmer would be willing to pay up to d(h), his marginal damage, for each steer that the farmer removes from the herd in order to avoid crop damage, while the rancher would accept any amount greater than his marginal profit, T(h). Thus, if transaction costs are zero, the parties will contract to reduce the herd to the efficient size. In other words, the farmer will purchase the rights to the straying cattle, the reverse of what happened under the Pigovian solution. The outcome in both cases is therefore first-best. This conclusion has become known as the Coase Theorem, which can be stated in general terms as follows: When transaction costs are zero, the allocation of resources will be efficient regardless of the initial assignment of property rights Coase challenged two assumptions implicit in the Pigovian view: first, that there is a unique cause of the harm, and second, that government intervention is necessary to internalize the externality. Coase noted that in general, and in the specific farmer-rancher example, the cause of harm is'reciprocalin the sense that if either party is removed, the harm disappears. Second, by noting that well defined ownership can lead to transactions, the private contracting as well as government regulation and taxation i ange of solutions extends to 1.3. The Impact of Transaction Costs: When Does Law Matter? Although there has been debate among economists and legal scholars on the significance of the Coase Theorem and its implications, Coase(1960, 1988)has been clear on this issue. Economic and legal institutions are important and have impacts because transaction costs are not zero and This tradition is attributed to A C. Pigou's The Economics of Welfare(1932) Stigler(1987)takes credit for calling this proposition the"Coase Theorem. Stigler also recounts a famous dinner at the home of Aaron Director where Coase convinced a formidable group of scholars (including Milton Friedman and Stigler) that his analysis was indeed correct. Typically economists have argued that the Coase Theorem is conditioned on the size of wealth effects. Barzel notes that the standard example of rights shifting without compensation itself violates the assumption of zero e (1997), however, argues that wealth effects are likely to be trivial and not a condition of the Coase Theorem transaction costs. This is because zero transaction costs means that a rights shift would have to be accompanied by a payment to the original rights holder In technical terms Coase points out that most interesting actions(n) depend on the inputs of both parties(a, b);that is,y=f(a, b). This"bilateral externality is discussed in section 7.1 This'contractualapproach is discussed in section 4.4

Lueck & Miceli – Property Law 3 Note that this solution to the externality problem embodies a particular assignment of property rights--namely, that the farmer has the right to be free from crop damage. Another way to say this is that the farmer is labeled as the “cause” of the harm and therefore must face liability. And if the property right (or the legal liability rule) is structured properly, the rancher will purchase the right to impose crop damage up to the point where the marginal profit from the last steer just equals the marginal damage, yielding an efficient herd size. Coase’s critique of this conventional, or “Pigovian,” perspective on externalities is not that it is wrong per se, but that it is incomplete.8 To illustrate, suppose that the rancher initially has the economic (and legal) right to impose crop damage without penalty. According to the Pigovian view, this would result in an excessive herd size because the rancher would expand the herd to hr . But note that the farmer would be willing to pay up to d′(h), his marginal damage, for each steer that the farmer removes from the herd in order to avoid crop damage, while the rancher would accept any amount greater than his marginal profit, π′(h). Thus, if transaction costs are zero, the parties will contract to reduce the herd to the efficient size. In other words, the farmer will purchase the rights to the straying cattle, the reverse of what happened under the Pigovian solution. The outcome in both cases is therefore first-best. This conclusion has become known as the Coase Theorem9 , which can be stated in general terms as follows: When transaction costs are zero, the allocation of resources will be efficient regardless of the initial assignment of property rights.10 Coase challenged two assumptions implicit in the Pigovian view: first, that there is a unique cause of the harm, and second, that government intervention is necessary to internalize the externality. Coase noted that in general, and in the specific farmer-rancher example, the cause of harm is ‘reciprocal’ in the sense that if either party is removed, the harm disappears.11 Second, by noting that well defined ownership can lead to transactions, the range of ‘solutions’ extends to private contracting as well as government regulation and taxation.12 1.3. The Impact of Transaction Costs: When Does Law Matter? Although there has been debate among economists and legal scholars on the significance of the Coase Theorem and its implications, Coase (1960, 1988) has been clear on this issue. Economic and legal institutions are important and have impacts because transaction costs are not zero and 8 This tradition is attributed to A.C. Pigou’s The Economics of Welfare (1932). 9 Stigler (1987) takes credit for calling this proposition the “Coase Theorem.” Stigler also recounts a famous dinner at the home of Aaron Director where Coase convinced a formidable group of scholars (including Milton Friedman and Stigler) that his analysis was indeed correct. 10 Typically economists have argued that the Coase Theorem is conditioned on the size of wealth effects. Barzel (1997), however, argues that wealth effects are likely to be trivial and not a condition of the Coase Theorem. He notes that the standard example of rights shifting without compensation itself violates the assumption of zero transaction costs. This is because zero transaction costs means that a rights shift would have to be accompanied by a payment to the original rights holder. 11 In technical terms Coase points out that most interesting actions (Y) depend on the inputs of both parties (a,b); that is, Y = f(a,b). This ‘bilateral’ externality is discussed in section 7.1. 12 This ‘contractual’ approach is discussed in section 4.4

Lueck 8 Micelli-Property Lazo thus property rights are not perfectly defined (Allen 1999, Barzel 1997). 3The Coase Theorem thus stresses the role of transaction costs in shaping the institutions, including law, that determines the allocation of resources. Seen as the costs of defining and enforcing property rights, transaction costs include enforcement costs, measurement costs, and moral hazard costs (Allen 1998) But Coase's insight goes further. Not only does the law matter for efficiency, as Demsetz(1972) explicitly points out, but the law itself is an economic choice, also expected to be driven by economic forces. Indeed, Coase's(1960)discussion of nuisance law suggests an economic logic to the law in its assignment of property rights among various parties to these disputes, but its relevance extends beyond the study of externalities. It is concerned with the larger question of how property rights are established, the types of property rights regimes that are allowed, and the rules that govern the use and transfer of property rights. In this sense, property law is a complement to markets. This is the real contribution of Coase, and it will emerge as a theme throughout this chapter in a wide range of property law settings 1. 4. Outline of chapter The remainder of the chapter is organized as follows. Section 2 develops the basic economic models of property rights that guide the analysis throughout the chapter. Section 3 examines the origin of rights. Section 4 follows with an analysis of the changes in property rights, or what has become known as the evolution of rights. Section 5 then examines various forms of voluntary of title by adverse possession and theft. Section 7 examines various means of internal go ers exchange, including markets, leases, and inheritance. Section 6 examines involuntary transfers externalities. Section 8 considers issues related to state(collective)ownership, as opposed to private ownership, of property, including the optimal scale of ownership and takings. Section 9 considers restrictions on the alienability of property. Finally Section 10 concludes. Each section is a mix of formal and informal theory and application to law and related institutions Throughout we try to make clear that the goal of the chapter is to use economics to illuminate the rationale for and effects of property law doctrine. Where possible we summarize the empirical literature or explain empirical applications. The sections are not symmetric, simply because the literature is not symmetric 2. Basic Property rights models Before examining property law doctrine it is appropriate to first examine the predominant types of property rights regimes and their economic structure. In this section we both describe the various types of property and examine the implications of these regimes for the use of and Many scholars have called a case of zero transaction costs a Coasian world but Coase(1988, p 174)claims"The world of zero transaction costs has often been described as a Coasian world. nothing could be further from the truth. It is the world of modern economic theory, one which I was hoping to persuade economists to leave In another path breaking article, Coase(1937)uses a similar transaction cost argument to explain the boundary between markets and firms. Barzel and Kochin(1992)note the link between Coase's property rights and transaction costs theories Because of its focus on specific assets, we make little use of theproperty rights theory of the firm'(e.g, Hart an Moore 1990)which has become important in the economics of organization

Lueck & Miceli – Property Law 4 thus property rights are not perfectly defined (Allen 1999, Barzel 1997).13 The Coase Theorem thus stresses the role of transaction costs in shaping the institutions, including law, that determines the allocation of resources. Seen as the costs of defining and enforcing property rights, transaction costs include enforcement costs, measurement costs, and moral hazard costs (Allen 1998). But Coase’s insight goes further. Not only does the law matter for efficiency, as Demsetz (1972) explicitly points out, but the law itself is an economic choice, also expected to be driven by economic forces.14 Indeed, Coase’s (1960) discussion of nuisance law suggests an economic logic to the law in its assignment of property rights among various parties to these disputes, but its relevance extends beyond the study of externalities. It is concerned with the larger question of how property rights are established, the types of property rights regimes that are allowed, and the rules that govern the use and transfer of property rights. In this sense, property law is a complement to markets. This is the real contribution of Coase, and it will emerge as a theme throughout this chapter in a wide range of property law settings. 1.4. Outline of Chapter The remainder of the chapter is organized as follows. Section 2 develops the basic economic models of property rights that guide the analysis throughout the chapter. Section 3 examines the origin of rights. Section 4 follows with an analysis of the changes in property rights, or what has become known as the evolution of rights. Section 5 then examines various forms of voluntary exchange, including markets, leases, and inheritance. Section 6 examines involuntary transfers of title by adverse possession and theft. Section 7 examines various means of internalizing externalities. Section 8 considers issues related to state (collective) ownership, as opposed to private ownership, of property, including the optimal scale of ownership and takings. Section 9 considers restrictions on the alienability of property. Finally Section 10 concludes. Each section is a mix of formal and informal theory and application to law and related institutions. Throughout we try to make clear that the goal of the chapter is to use economics to illuminate the rationale for and effects of property law doctrine. Where possible we summarize the empirical literature or explain empirical applications. The sections are not symmetric, simply because the literature is not symmetric.15 2. Basic Property Rights Models Before examining property law doctrine it is appropriate to first examine the predominant types of property rights regimes and their economic structure. In this section we both describe the various types of property and examine the implications of these regimes for the use of and 13 Many scholars have called a case of zero transaction costs a ‘Coasian world’ but Coase (1988, p.174) claims ‘The world of zero transaction costs has often been described as a Coasian world. Nothing could be further from the truth. It is the world of modern economic theory, one which I was hoping to persuade economists to leave.’ 14 In another path breaking article, Coase (1937) uses a similar transaction cost argument to explain the boundary between markets and firms. Barzel and Kochin (1992) note the link between Coase’s property rights and transaction costs theories. 15 Because of its focus on specific assets, we make little use of the ‘property rights theory of the firm’ (e.g., Hart and Moore 1990) which has become important in the economics of organization

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