Legal positivism and property rights: a critique of Hayek and Peczenik

Scholars such as Friedrich Hayek and Aleksander Peczenik have criticized legal positivism for undermining constitutionalism and the rule of law, an implication of which is weakened private property rights. This conclusion is far from evident. First, I contend that legal positivism is compatible with a strong support for property rights. Second, the causal relationship between legal positivism and the degree to which property rights are applied and protected is analyzed. The main arguments for a negative relationship—that legal positivism centralizes and politicizes legislation and that it makes the legal culture servile in relation to the political sphere—are considered unconvincing.

CAN GREATER ATTENTION TO WOMEN'S RIGHTS HELP ADDRESS INCOME INEQUALITY?

We investigate the relationship between women's economic, social, and political rights with the level of income inequality. We use dynamic panel estimation to check our hypothesis that that strong rights for women translate into higher participation in economic productive activities, improve income and education and support for future generations, thus reducing the overall income inequality in the economy. We further look at how a country's overall economic performance and the status of women's education alter the relationship. The relationship is strengthened if countries are either in the higher‐income spectrum or have higher levels of female educational attainment. (JEL O1, I00, H00)     

A model of the origins of basic property rights

This paper studies the origins of one of the most basic of property rights, namely, the right of an individual or an organization to the fruits of its labour. My objective is to address the questions of why, when and how this property right can emerge and be made secure. I develop a model of the strategic interaction between two players in the state-of-nature, which is an environment characterized by the absence of any laws and institutions (including property rights and the state). My analysis explores, in particular, the roles of the players' fighting and productive skills on the emergence and security (or otherwise) of this property right.     

Property Rights, Renewable Resources and Economic Development

This paper analyzes the role of endogenous property rights in the development of an open resource-based economy. I incorporate renewable resources and endogenous decisions on property rights into a convex growth model with the formal and informal sectors. I find that along the transition path to steady state, property rights enforcement is not constant but improves with time as well as involves intermediate property rights specification (between open access and perfect property rights). International trade and labor market are driving these endogenous changes. Property rights improve with favorable terms of trade when the economy exports resource services and stronger property rights help maintain the resource stock by deterring illegal harvest. This pushes labor away from the informal harvest sector toward greater participation in the formal sector of the economy. In turn, more labor participation in the formal sector along with capital formation increase the country’s output and consumption. Overall, with an open economy and well-functioning institutions, renewable resources have a positive impact on economic growth.     

Do patents work? Thickets,trolls and antibiotic resistance

This paper connects ideas from recent literature on the economics of intellectual property (IP) to address the question: Did the strengthening and broadening of IP rights from important patent policy changes in the US promote greater innovation? The analysis rests on the theory of cumulative innovation, which shows that if IP rights on a pioneer invention extend to follow‐on research and impediments to contracting exist, then strengthening patents can actually reduce overall innovation. Recent empirical studies are consistent with the theory: patents can significantly deter follow‐on research in “complex” technology areas where contracting is difficult (computers, electronics, telecommunications) but not in drugs, chemicals and human genes. I outline remedies from court decisions and antitrust policy for addressing inefficiencies from patent trolling, patent thickets and the anti‐commons of fragmented ownership. I then apply the analysis to the antibiotics market, drawing on recent research, to examine how patent and competition policies can be used to improve incentives for drug development in the battle against antibiotic resistance. The literature provides persuasive evidence that the policy changes overreached in broadening and strengthening IP rights and reveals important patent reforms for improving the effectiveness of patent systems in the US and Canada.     

SOME PUZZLING BEHAVIOR BY OWNERS OF INTELLECTUAL PRODUCTS: AN ANALYSIS

Creators of intellectual properties frequently seem to prefer "rental," or sale with restricted rights, over outright sale of the intellectual properties. Surprisingly, these individuals also seem to prefer legislative provisions forcing them to restrict purchasers' rights rather than allowing this result to be achieved through voluntary negotiations. In this paper, I examine two examples of this behavior: the sale of syndication rights for television programs and the separation of broadcast rights from synchronization rights for music in television broadcasts. The desire to restrict purchasers' rights is explained in two ways. First, I appeal to recent developments in utility theory, namely, regret theory. Second, I show that sales of intangible goods such as intellectual properties are less closely related to use than are sales of tangible goods, and that restricting rights is an attempt to enhance such a linkage. I give several explanations for using legislative solutions, although I acknowledge that further research is needed on both questions before definitive answers can be given.     

VORACIOUS TRANSFORMATION OF A COMMON NATURAL RESOURCE INTO PRODUCTIVE CAPITAL*

I analyze a power struggle where competing factions have private financial assets and deplete a common stock of natural resources with no private property rights. I obtain a feedback Nash equilibrium to the dynamic common‐pool problem and obtain political variants of the Hotelling depletion rule and the Hartwick saving rule. Resource prices and depletion occur too fast, so substitution away from resources to capital occurs too fast and the saving rate is too high. The power struggle boosts output, but depresses sustainable consumption. Genuine saving is nevertheless zero in a fractionalized society. World Bank estimates may be too optimistic.     

FAIR ALLOCATION OF DISPUTED PROPERTIES

We model problems of allocating disputed properties as generalized exchange economies. Therein, agents have preferences and claims over multiple goods, and the social endowment of each good may not be sufficient to satisfy all individual claims. We focus on market‐based allocation rules that impose a two‐step procedure: assignment of rights based on claims first and voluntary exchange based on the assigned rights afterward. We characterize three focal egalitarian rights‐assignment rules that guarantee that the allocation rules are fair. We apply our results to problems of greenhouse gas emissions and contested water rights.     

Optimal Allocation of Tradable Pollution Rights and Market Structures

Tradable environmental rights are increasingly pursed as a regulatory instrument, to control for environmental quality. However, in the presence of market power, regulation through an allocation of tradable rights generally yield inefficient outcomes. This article analyzes the effect of the initial distribution of tradable rights on the firms’ strategies and performance in abatement and production, and proposes an efficient criterion for the allocation of tradable rights among firms with market power and competitive fringe firms. The suggested criterion maximizes efficiency of the market based regulation. A simple numerical example illustrates the theoretical discussion.I am very grateful to Richard J. Sexton for useful comments and suggestions. I also wish to thank Giacomo F. Bonanno, the editor, anonymous referees, and participants at the CORE workshop “Industrial Economics and the Environment” (2004) for helpful discussions and comments that improved the paper.     

Matching users' rights to available groundwater

The amount of available groundwater in a catchment changes quickly, and the amount of water that users can take sustainably depends on where and when it is taken. However, rights to water tend to be fixed, and obtaining rights to water incurs high transaction costs. As a result, water catchments are over-allocated worldwide.In this paper, I show how a catchment manager could match users' rights to the available water, in near real time, despite uncertain future inflows, while making effective use of all available hydrological data. The solution uses the framework of a smart market. A smart market is a periodic auction cleared with the help of an optimization model. In addition to market clearing, this model allows a convenient means to adjust initial rights, and the auction revenue reflects the available water relative to users' rights. When the auction is revenue neutral, the catchment may be viewed as allocated perfectly. I suggest several ways in which a catchment manager can find this revenue-neutral allocation, assuming the manager has authority to adjust initial rights.     

The social cost problem,rights, and the (non)empty core

We revisit the “Coase theorem” through the lens of a cooperative game model which takes into account the assignment of rights among agents involved in a problem of social cost. We consider the case where one polluter interacts with many potential victims. Given an assignment or a mapping of rights, we represent a social cost problem by a cooperative game. A solution consists in a payoff vector. We introduce three properties for a mapping of rights. First, core compatibility indicates that the core of the associated cooperative games is nonempty. Second, Kaldor‐Hicks core compatibility indicates that there is a payoff vector in the core where victims are fully compensated for the damage once the negotiations are completed. Third, no veto power for a victim says that no victim has the power to veto an agreement signed by the rest of the society. We then demonstrate two main results. First, core compatibility is satisfied if and only if the rights are assigned either to the polluter or to the entire set of victims. Second, there is no mapping of rights satisfying Kaldor‐Hicks core compatibility and no veto power for a victim.     

Constitutional Contractarianism

In this paper, I argue that we should restrict fundamentalcontractarian agreements to decision procedures for adjudicatingdisputes over particular assignments of rights. I attempt toshow that neither substantive principles prescribing specificassignments of rights nor specific rights assignments themselvescan be established at the level of the constitutional agreementsby which we move from force to legal procedures to settle ourdisputes. Instead of substantive principles, I make a case forimpartial non coercive procedural principles that promise toeach party to a dispute a more or less equal chance of a favorabledecision. Whenever it is in our mutual interest to save the costof settling disputes by coercion, it is in our mutual interestto adopt impartial procedures to settle these disputes.In this paper, I shall argue that we must justify particularproperty rights in terms of an impartial constitutional contract.I adopt the concept of a constitutional contract from James Buchananand take his perspective as the starting point of my account.For Buchanan a constitutional contract is the basic agreementthat first introduces rights and makes possible both a marketand a collective provision of public goods. For him, the constitutionalcontract is agreed to from an initial position of predation anddefense in which there are no prior constraints on the appealto force and threat-advantage. However, on his view, the costof using coercion to settle disputes normally makes it in ourrational interest to accept a constitutional contract that replacescoercion with non coercive procedures to settle disputes.My paper will have three parts. In the first, I shall argue thatBuchanan is right to suppose a starting point of predation anddefense to establish a rational basis for legal and moral constraintson the use of coercion to settle property rights. However, Ishall make the case that he is mistaken to attempt to establishparticular property rights from that perspective. The constitutionalcontract must be limited to impartial decisionmaking procedures.In the second part, I shall contrast Buchanan's contractarianismwith that of John Rawls and David Gauthier. I shall show thatboth Rawls and Gauthier fail to recognize, as Buchanan does,that we cannot defensibly raise substantive distributive principlesto fundamental constitutional principles. In the third part ofmy paper, I shall build upon the conceptions of impartialityfound in Buchanan, Rawls, and Gauthier in an attempt to formulatethe main requirements of an impartial constitutional procedurefor the non coercive adjudication of disputes regarding rights.My thesis is that a rational consensual resolution of conflictis possible only by deciding property rights by means of impartialconstitutional procedures.     

Let's Get Physical! Or Financial? A Study of Electricity Transmission Rights

I test experimentally the predictions of neoclassical theory for a radial electricity market without rights to the transmission line, with rights that give the owner a financial right to a share of the transmission congestion charges collected by a network operator, and with physical rights which give the owner the exclusive right to utilize a portion of the transmission line. I find that physical rights lead to more right market signals, diminish some market-power, and remove an uncertainty about electricity transmission congestion better than financial rights or the absence of rights.     

Land use rights,market transitions,and labour policy change in China (1980–84)

This paper provides a systematic analysis of the way shifts in property utilization rights in China induced another sequence of institutional changes that led to the rise of rural–urban labour migration from 1980 to 1984, a critical period in the country’s market transition. The paper shows that the 1980s’ Household Responsibility System (HRS), which brought family farming back from the communal system, endowed rural households not only with land use rights, but also with de facto labour allocation rights. These shifts in property relations promoted a growth in agricultural market size as well as the emergence of intraprovincial non‐hukou rural–urban migration, which may have made labour retention policies such as the small township strategy ineffective, and may have given the government an incentive to deregulate its subsequent labour market policy.     

Private takings

This paper examines the implications associated with a recent Supreme Court ruling, Kelo v. City of New London (2005). Kelo can be interpreted as supporting eminent domain as a means of transferring property rights from one set of private agents—landowners—to another private agent—a developer. Under voluntary exchange, where the developer sequentially acquires property rights from landowners via bargaining, a holdout problem arises. Eminent domain gives all of the bargaining power to the developer and, as a result, eliminates the holdout problem. This is the benefit of Kelo. However, landowners lose all their bargaining power and, as a result, their property investments become more inefficient. This is the cost of Kelo. A policy of eminent domain increases social welfare compared to voluntary sequential exchange only when the holdout problem is severe, and this occurs only if the developer has very little bargaining power. We propose an alternative government policy that eliminates the holdout problem but does not affect the bargaining power of the various parties. This alternative policy strictly dominates a policy of eminent domain, which implies that eminent domain is an inefficient way to transfer property rights between private agents.     

Intellectual property rights as development determinants

Abstract While intellectual property rights (IPRs) are the key drivers of economic performance in R&D based growth models, they have not been fully explored in empirical development studies. We introduce IPRs to this literature, using Two‐Stage Least Squares Bayesian Model Averaging to address endogeneity and model uncertainty at the instrument and income stages. We show that IPRs exert effects similar to ‘Rule of Law’ and therefore provide robust evidence that both physical and intellectual property rights are crucial development determinants. We document that unenforced IPRs exert no effect on development. Instead, it is the level of enforced IPRs that causes development.     

A spectre is haunting the world – the spectre of global capitalism

Individual property rights are fruitful for economic development because they civilise self-interest by forcing it to serve the common good. The history of previous property rights “cycles,” however, shows that their ability to do this deterioriates over time because the laws of property fall under the control of those whom property is meant to discipline. Irresponsible ownership then intensifies inequality until a breaking point is reached. The present cycle is no exception, but its breaking point has been postponed by the growth of the democratically-inspired welfare state. Globalisation is now eroding the financial basis of this, because mobile capital can escape taxation, leaving labour to carry the burden. The main thrust of this movement is now found in the World Trade Organisation, whose control of intellectual property and commitment to free trade in money as well as goods, can only increase inequality between countries as well as within them. It represents individual property rights which are out of any form of social control, since there is no global mechanism for civilising self-interest. Schumpeter's sense of the impending demise of capitalism, if not of its replacement by socialism, may yet be vindicated.     

Comparing Environmental Policy Instruments Within an Incomplete Contract Framework

This paper compares three different legal means—no environmental policy (the pollutee pays), full liability (the polluter pays), and pollution standards—to reduce and regulate neighborhood externalities within an incomplete contract framework. It turns out that the relative efficiency of these instruments depends, in general, on details. However, moderate standards are preferable to no environmental policy and tight (but not too tight) standards dominate liability. This provides under the given assumptions (neighborhood externalities, incomplete contracts) a justification for “sensible” standards for three reasons. First, unilateral allocations of property rights are biased that distort allocations even if ex post bargaining takes place. Second, a standard is superior in the following sense: if it is set equal to the outcome under any allocation of rights, it will be improved in the process of ex post bargaining. Third, unilateral property rights encourage strategic ex ante investments up to the point that committing to no bargaining would be beneficial (if possible).     

A libertarian theory of rights and future generations

The central question in preserving the rights of future generations is how to ground a theory of rights that is also acceptable to the present generation, including staunch Republicans, without self-contradiction. Such a theory of rights consists of the three principles of a minimalist liberatarian theory (that of Robert Nozick), and demonstrates that environmental degradation is a violation of this theory of rights; a theory that is compatible with a free enterprise corporate culture. It is shown that no appeal to liberalism is necessary. It is shown that the case is not based on some ideals of justice but on three politically conservative principles that all modern societies accept as being fundamental to the continuation of those societies. Earlier versions of this paper were presented at Cornell University and at Wissenschaftszentrum Berlin für Sozialforschung, Berlin. I would like to thank Dr Udo E. Simonis for his helpful comments, but I alone am responsible for any remaining errors. This research is financed by the Social Sciences and Humanities Research Council of Canada, grant#410-94-1221.     

Calhoun's constitutional economics

Calhoun's early speeches and writings argue for an expansive national government. His later works, most notablyA Disquisition on Government, argue for a strong version of states' rights, nullification, and secession. Earlier accounts of Calhoun's thought attribute this apparent contradiction to political expediency and opportunism. But I argue here that Calhoun's early nationalism was a reaction against the operation of multiple vetoes in the legislative process, requiring near unanimity to pass legislation. By 1825, however, Congress had evolved institutions that circumvented these vetoes, resulting in majoritarian redistribution. The later Calhoun opposed the legislation that followed from these circumventions and proposed an alternative form of unanimity, the concurring majority, as the appropriate corrective. An earlier version of this essay was prepared for a public lecture at Clemson University, to commemorate the Clemson University Centennial, October 18, 1989.