Category Archives: Property Rights

Collectivism Is Not the “Natural” State

03 Tuesday May 2022

Posted by in Collectivism, Property Rights

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There is a great myth that primitive man was some sort of “noble savage”, perfectly attuned to the natural environment and disposed to an egalitarian principle. All that, of course, is balderdash. A related myth is that primitive societies were essentially collectivist and that private property was largely an unrecognized institution. This is something I’ve heard too often from individuals wishing to characterize leftist ideals as natural and wholesome. So I welcomed a recent piece in Aeon called “Primitive Communism”, by Manvir Singh, which reviews evidence on a number of hunter-gatherer societies and cites several scholars on the subject of ownership and the distribution of goods among those peoples. A preponderance of the evidence suggests that private property and private rewards were (and are) quite common in primitive societies, and those practices predated agriculture.

The assertion that the advent of private property and trade was somehow unnatural for mankind, or even unjust, might owe its widespread acceptance to Friedrich Engels’ “The Origin of the Family, Private Property and the State”. Singh summarizes one of the book’s primary arguments thusly:

“Once upon a time, private property was unknown. Food went to those in need. Everyone was cared for. Then agriculture arose and, with it, ownership over land, labour and wild resources. The organic community splintered under the weight of competition.”

While there were a few primitive societies in which economic output was shared, it is not clear whether any central authority was relied upon for determining the distribution of output. Instead, in those cases, sharing seems to have been a matter of social convention. Singh posits that interdependence played a major role in motivating output sharing, but mechanisms for dealing with interdependence differed in societies with stronger property rights, including voluntary sharing, which was often but not always based on reciprocity. Volunteerism still has a strong role in modern, developed economies, but for better or worse, social insurance is increasingly viewed as a function of the state, with its monopoly on legal coercion.

And how “natural” is social insurance? Not very in a world of extreme scarcity. One of the more interesting passages in Singh’s article has to do with the brutality of subsistence-level societies. The weak were often abandoned or killed, which Singh discusses in the context of the collectivist Aché people of Paraguay. This “culling” applied variously to orphans, the disabled, the unsightly, and the aged. It’s unclear whether these decisions were collective or left up to individual families. Noble savages indeed!

It’s astonishing how often Engels’ faulty premise is accepted as historical fact. The argument, however, often serves as a subtext for collectivist rationales in the modern era. As Singh says:

“For anyone hoping to critique existing institutions, primitive communism conveniently casts modern society as a perversion of a more prosocial human nature.”

I’m not sure whether it’s possible to marshall evidence that primitive societies with strong property rights were more successful than their collectivist counterparts. That would be a good topic of further research, but it would be tough to control for the difficulties posed by varying natural conditions faced by these societies.

On the other hand, suppose we stipulate that property rights developed as a consequence of, or in tandem with, organized production, as Engels would have had it. We’d have to categorize that development as a kind of technological breakthrough in its own right. By aligning incentives with production, property rights were critical to the phenomenal growth in prosperity the world has enjoyed over the past several centuries. Nevertheless, the evidence on primitive societies suggests that the alignment came more “naturally”.

It’s about time to put the fiction of “primitive communism” to rest. Private property was sensible for the denizens of most primitive societies. Even the most collectivist of the those societies made certain concessions to that reality. These facts comport with a view of property ownership as a natural right.

Space, Property Rights and Scarcity

14 Thursday Mar 2019

Posted by in Property Rights, Scarcity, Space Travel

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Rights in outer space are an area of unsettled international law, particularly the topic of exploiting resources in outer space. Today there is some consensus that assignment of mineral extraction rights to private firms will enhance the promise of these resources for mankind and expedite future space exploration. However, I happened upon two strikingly misinformed comments from otherwise learned individuals who might have known better had they ever taken a basic course in economics, or had they applied a little basic logic to the subject matter. Both comments were made in defense of a strict interpretation of the “global commons” theory embodied in the 1967 Outer Space Treaty. Under that dubious interpretation, the establishment of private property rights on celestial bodies would be prohibited.

I first stumbled across the following from Roy Balleste, a law professor at St. Thomas University, in “Interstellar Travel and the Mission for Outer Space: A Human Rights Perspective“:

“Any policy designed to explore future possibilities in outer space should avoid the plundering of resources through excessive claims of property rights, which causes scarcity and all its failings. If the focus of space exploration is on resource acquisition, i.e., property rights, then resource management will become as important as the exploration itself. The scarcity of resources is also known as the ‘tragedy of the commons.’” [my emphasis]

This poor guy is mixed up! He footnotes Susan J. Buck as a source for these ideas, but I won’t even bother to research Ms. Buck’s work. Belleste did quite enough to raise my pique. Before I say anything else, I’ll first note that the tragedy of the commons occurs only in the absence of defined property rights to scarce resources. “The commons” means that a resource is owned in common. When use of that resource is at all rivalrous and unpriced, common ownership leads to competition for use and ultimately to overuse. Contrary to Balleste’s implication, assignment of property- or use-rights helps to resolve this difficulty.

As a first approximation, it’s probably fair to say that Belleste, in his gut, thinks of scarcity as want of things belonging to others, or perhaps things that are beyond the reach of the state. Surely he knows that scarcity is fundamental to the nature of mankind’s existence. That’s the reality that gives rise to “the economic problem”: how can society allocate scarce resources to best meet the needs and unbounded wants of its people.

Individual property rights establish the basis for voluntary trade, pricing, and incentives for production and conservation, providing for a decentralized and efficient solution to the economic problem. The prices established under such a regime are an accurate reflection of the true scarcity of resources because they balance demands and available supplies. When valuable resources are difficult or risky to exploit, it is secure property rights that provide the incentives for entrepreneurs to go to work, unlocking the benefits of those resources only to the extent that they are “economic”. Risks are taken in exchange for the possibility of future profit that might be earned through trade with willing buyers. This is true whether the raw resources exist deep in the ground, in outer space, or in the fertile minds of entrepreneurs. Far from causing scarcity, property rights are actually necessary to manage efficiently in a world of scarcity. As already noted, a further implication is that property rights encourage conservation: only those quantities are extracted as needed to satisfy demands and minimize waste, and through market prices, those demands are themselves tempered by the physical limits and costs of extraction.

Attempts to solve the economic problem in the absence of individual property rights require a central decision-making authority. How can such an authority hope to know or keep abreast of changes in individual needs and wants? And how can that authority maintain adequate information on the requirements of productive endeavors? Without individual agency, incentives become inoperative and prices don’t correctly signal the degree of scarcity across innumerable resources, including each individual’s time. Thus, these centrally-made decisions take on an arbitrary and coercive nature. It’s no wonder that central economic planning meets with such consistent failure.

Belleste undoubtedly resents inequality, and whether you believe that redistribution of wealth is just or an unjust violation of property rights, the real damage is how it erodes prospective returns to talent, hard work, and risk-taking. Indeed, the exercise of confiscatory power creates risk, for then the rewards of any productive endeavor are subject to the winds of politics and the whims of politicians.

The second quote that caught my attention was this doozy, courtesy of William Hartmann of the Planetary Science Institute:

“The capitalist system works as advertised only when the resources are effectively infinite…”

Um… no. There can be no question of what “works best” in the absence of scarcity, for then there is absolutely no economic problem to solve. Why bother? Infinite resources imply that prices are zero, and that talent, effort, and risk-taking are unnecessary. As we know already, conditions of scarcity are what gives rise to the economic problem for which capitalism provides a benchmark solution: an efficient allocation of resources that does not rely on coercion by the state.

I still plan to address the topic of rights in outer space in a future post. For now, suffice it to say that exploiting resources that can be extracted from asteroids, the moon, or other planets for the benefit of mankind is likely to require private incentives. In fact, President Obama signed a bill authorizing rights to resources extracted in outer space, yet there is still some debate as to whether that is permissible under the Outer Space Treaty. Even stronger incentives, however, would be established by granting permanent rights to mine or terraform particular tracts on celestial bodies, presumably as an incentive to those who reach them first.

Economic Freedom and Mobility Reduce Poverty; Alms Are Impotent

02 Friday Nov 2018

Posted by in Free markets, Immigration, Property Rights

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It’s very difficult to lift people out of poverty via redistribution or philanthropy. Small gains in income can be expected at best, but there are far more powerful ways to improve well being. These have to do with expanding the fundamental freedoms, rights and rewards available to private individuals. Harvard’s Lant Pritchard divides these efforts into two broad categories: policies that improve labor mobility, and those that lead to gains in-place via economic growth. His working paper, “Alleviating Global Poverty: Labor Mobility, Direct Assistance, and Economic Growth”, is available here.

Economic Benefits of Migration 

Pritchard first explains that the freedom to migrate across borders in pursuit of economic opportunity allows workers from low-productivity countries to contribute much greater output in high productivity countries. In so doing, the workers gain far more than can be practically accomplished via direct aid, and according to Pritchard, at zero or little cost. So granting this freedom is a much more effective anti-poverty measure than aid payments.

Pritchard seems to imply that this is a persuasive economic argument for open borders. On that question, I take the position that countries are sovereign entities and that their citizens possess the right to determine the extent of immigration flows. And in fact, there are real costs of immigration flows that must be considered. Pritchard’s paper offers a powerful rationale for liberalizing immigration quotas, but here again, he dismisses certain issues that limit even that more narrow argument.

The prospective economic gains of the immigrants themselves are important, of course, but the economic needs of the destination country matter too. In the U.S., employers in many markets face a shortage of low-skilled labor, so immigration quotas bind on those markets. Making them less binding would certainly encourage economic growth. A greater influx of younger workers from abroad would also help America weather its demographic crisis, narrowing the shortfall in funding entitlement programs like Social Security and Medicare. Unfortunately, to those who do not already recognize these needs, Pritchard’s contribution is likely to carry little weight.

Still, Pritchard’s assertion that the cost of liberalized immigration is zero needs further examination. First, there are the very real costs of vetting and processing new immigrants. Second, unless all immigrants and employers are matched ex ante, which is virtually impossible, there will be adjustment costs that continue at least until the matching is complete. In the interim, and even post-employment, new immigrants might well require public aid to support themselves and their families. It is also quite likely that new tax revenue generated by immigrants will be insufficient to pay the full incremental costs of public resources consumed in providing marginal infrastructure, education, and other public subsidies.

Pritchard employs static calculations of the net benefits to be gained through greater labor mobility “at the margin”, but as the absorption of new immigrants into the workforce takes place, excess demands for low-skilled workers may turn into excess supplies, creating downward pressure on wages. In the presence of a minimum wage, that implies unemployment and a probable drain on public resources. So the source of the benefits discussed by Pritchard should not be viewed as limitless. He offers some mild rebuttals of this point and references one of his own papers in so doing, but the possibility cannot and should not be dismissed.

Economic Benefits of Economic Freedom

Pritchard’ second major point of emphasis involves the effectiveness of different kinds of private and public direct assistance, or “treatments”, in producing income gains over time. He offers evidence that the gains are relatively weak. He contrasts this with the potential gains from “growth accelerations” stemming from a variety of causes. The upside of a normal business cycle is one form, but that doesn’t really count if the gains are lost on the downside.

The most profound form of growth acceleration occurs upon the advent of a liberalized social order. This may accompany the downfall of an authoritarian government, the stabilization of a formerly unsound monetary regime, or as more sophisticated market institutions take hold in a formerly primitive economy. The main point is that there are fundamental social underpinnings of growth. These are the many dimensions of economic freedom: secure property rights, freedom of contract, minimal regulatory interference, low taxes, and competitive markets for goods and capital. These conditions are so straightforward that in developed economies we take many of them for granted, through they are threatened even there. But these conditions are sadly lacking in much of the under-developed world.

Conclusion

Allowing workers to migrate freely in search of the best opportunities is undoubtedly more powerful in improving their welfare than any form of direct assistance. That is a fundamental truth put forward by Lant Pritchard. However, in-migration can come with significant costs for the destination country. Therefore, immigration laws should allow sufficient flexibility with respect to flows to enable the capture of economic gains from immigration when they exist. Pritchard also emphasizes that economic freedom and the growth acceleration it makes possible do far more to reduce poverty than massive private and public efforts at direct assistance, however well-intentioned. Several earlier posts on Sacred Cow Chips have highlighted the impotency of redistribution for eliminating poverty. The Left has a tendency to dismiss such views as mere ideological assertion, but it is much more than that: it is the difference between penury and prosperity.

Liz Warren Pitches Another Goofball

23 Thursday Aug 2018

Posted by in Central Planning, Property Rights, Regulation

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Elizabeth Warren wants to nationalize all private businesses with more than $1 billion in annual revenue. She plans to introduce legislation called the “Accountable Capitalism Act” that would, if enacted, authorize an outright theft of private property from the owners of these companies. Among other things, her plan would require large companies to obtain a federal charter and set aside 40% of their board seats for members to be elected by employees. In addition, henceforth these businesses would be answerable not merely to shareholders, but to employees along with a limitless array of other “stakeholders”. That’s because under their federal charters, firms would have a duty to create a “general public benefit”. The operative assumption here is that merely creating a product or service does not produce adequate value for society, regardless of the benefits to buyers, income to employees and suppliers, taxes paid, and the returns earned by millions of working people who have invested in these companies via pension and 401(k) plans.

In the very first place, Warren’s bill is unconstitutional, as Richard Epstein points out. Owning a business is protected as a property right under several amendments to the U.S. Constitution, but particularly the Fifth Amendment. Warren would place unconstitutional conditions on this right via the requirements for a federal charter and the so-called public benefit. If enacted, her bill would quite likely be ruled unconstitutional by the courts. But if it stood, capital would quickly take flight from the U.S., depressing asset values.

Don Boudreaux notes that absent ownership, vaguely-defined “stakeholders” have risked nothing in the success of the company. Shareholders bear the financial risk that the company will fail to produce adequate earnings, lose value, or fail. Management has a fiduciary duty to protect the funds that shareholders invest in the firm, including a duty to protect the firm’s ability to acquire credit. Warren’s legislation would compromise these duties by elevating the objectives of non-owners to the same or greater status than those who have provided the equity capital. Again, this would happen in at least two ways: required representation of employee-elected board members, and the vague public-benefit mandate under the firm’s federal charter.

Significant employee representation on the board is likely to distort decisions about labor compensation and virtually any decision affecting employment. While 40% is short of a board majority, union pension funds already purchase shares in companies both as investments and as a way of driving labor issues before shareholders and into boardrooms. Those votes, along with the 40% board representation and oversight from federal bureaucrats, would give additional leverage to labor in influencing the firm’s decision-making. To take the simplest case, economic efficiency requires that the rate of labor compensation be the same as the marginal value of labor productivity. Warren’s proposal would surely result in wage payments exceeding this threshold, diminishing the economic value of the firm and its ability to raise capital. And by reducing the efficiency of the production process, it would raise costs to consumers and/or business customers.

There any number of other worker demands that would gain viability. For example, extended break times or extra paid-time-off would certainly raise costs, and such demands from a plurality of the board would be unrestrained by the need to negotiate other terms. Or how about a plant-closing decision? The upshot is that mandated board representation for labor would create instability and lead to a decline in the firm’s performance, competitiveness, and attractiveness to suppliers of capital. Ultimately, the very jobs on which labor depends would be threatened.

Further dilution of business objectives would arise from the requirement under the federal charter to produce a “public benefit”. Serving customers is not enough, but what will satisfy federal overseers that the firm has fulfilled its social obligations? And what are the limits of those social obligations? Again, these amorphous requirements would constitute a theft of resources from the business owners, requiring the payment of alms in order to produce something of value. There is already evidence that board activism in pursuit of non-business, social objectives destroys business value:

“Labor-affiliated pensions regularly file shareholder proposals, usually involving social and political concerns. Those social and political shareholder-proposal campaigns are associated with lower shareholder value. These labor investors also tend to attack companies facing ongoing union-organizing campaigns, as well as companies with political action committees that support Republicans.”

In time, the dilution of objectives undermines a firm’s viability, its health of its suppliers, and its ability to employ workers and hire other resources. Many of the suppliers hurt by Warren’s proposal would be smaller firms. It would ripple through the ranks of consultants, repair shops, electricians, plumbers, accounting firms, janitorial services, and any number of other businesses. But even before that, Warren’s proposal would send capital scrambling overseas.

I share Don Boudreaux’s astonishment that writers such as Matt Yglesias in Vox can assert that the Warren plan would have no costs. It might or might not have an impact on the federal budget, but the cost of destroyed economic value in the business sector would be massive, not to mention the jobs that ultimately would be lost in the process. It’s also astonishing that proponents can pretend that Warren’s bill would “save capitalism” when in fact it would do great harm.

Finally, here is Kevin Williamson expressing his disdain for Warren’s true intent in putting her bill forward:

“Warren’s proposal is dishonestly called the ‘Accountable Capitalism Act.’ Accountable to whom?  you might ask. That’s a reasonable question. The answer is — as it always is — accountable to politicians, who desire to put the assets and productivity of private businesses under political discipline for their own selfish ends. It is remarkable that people who are most keenly attuned to the self-interest of CEOs and shareholders and the ways in which that self-interest influences their decisions apparently believe that members of the House, senators, presidents, regulators, Cabinet secretaries, and agency chiefs somehow are liberated from self-interest when they take office through some kind of miracle of transcendence.”

Better Bids and No Bumpkins

18 Tuesday Apr 2017

Posted by in Air Travel, Property Rights, Secondary Markets

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United Airlines‘ mistreatment of a passenger last week in Chicago had nothing to do with overbooking, but commentary on the issue of overbooking is suddenly all the rage. The fiasco in Chicago began when four United employees arrived at the gate after a flight to Louisville had boarded. The flight was not overbooked, just full, but the employees needed to get to Louisville. United decided to “bump” four passengers to clear seats for the employees. They used an algorithm to select four passengers to be bumped based on factors like lowest-fare-paid and latest purchase. The four passengers were offered vouchers for a later flight and a free hotel night in Chicago. Three of the four agreed, but the fourth refused to budge. United enlisted the help of Chicago airport security officers, who dragged the unwilling victim off the flight, bloodying him in the process. It was a terrible day for United‘s public relations, and the airline will probably end up paying an expensive out-of-court settlement to the mistreated passenger.

Putting the unfortunate Chicago affair aside, is over-booking a big problem? Airlines always have cancellations, so they overbook in order to keep the seats filled. That means higher revenue and reduced costs on a per passenger basis. Passengers are rarely bumped from flights involuntarily: about 0.005% in the fourth quarter of 2016, according to the U.S. Department of Transportation. “Voluntarily denied boardings” are much higher: about 0.06%. Both of these figures seem remarkably low as “error rates”, in a manner of speaking.

Issues like the one in Chicago do not arise under normal circumstances because “bumps” are usually resolved before boarding takes place, albeit not always to everyone’s satisfaction. Still, if airlines were permitted (and willing) to bid sufficiently high rates of compensation to bumped ticket-holders, there would be no controversy at all. All denied boardings would be voluntary. There are a few other complexities surrounding the rules for compensation, which depend on estimates of the extra time necessary for a bumped traveler to reach their final destination. If less than an extra hour, for example, then no compensation is required. In other circumstances, the maximum compensation level allowed by the government is $1,300. These limits can create an impasse if a passenger is unwilling to accept the offer (or non-offer when only an hour is at stake). The only way out for the airline, in that case, is an outright taking of the passenger’s boarding rights. Of course, this possibility is undoubtedly in the airline’s “fine print” at the time of the original purchase.

No cap on a bumped traveler’s compensation was anticipated when economist Julian Simon first proposed such a scheme in 1968:

“The solution is simple. All that need happen when there is overbooking is that an airline agent distributes among the ticket-holders an envelope and a bid form, instructing each person to write down the lowest sum of money he is willing to accept in return for waiting for the next flight. The lowest bidder is paid in cash and given a ticket for the next flight. All other passengers board the plane and complete the flight to their destination.“

Today’s system is a simplified version of Simon’s suggestion, and somewhat bastardized, given the federal caps on compensation. If the caps were eliminated without other offsetting rule changes, would the airlines raise their bids sufficiently to eliminate most involuntary bumps? There would certainly be pressure to do so. Of course, the airlines already get to keep the fares paid on no-shows if they are non-refundable tickets.

John Cochrane makes another suggestion: limit ticket sales to the number of seats on the plane and allow a secondary market in tickets to exist, just as resale markets exist for concert and sports tickets. Bumps would be a thing of the past, or at least they would all be voluntary and arranged for mutual gain by the buyers and sellers. Some say that peculiarities of the airline industry argue that the airlines themselves would have to manage any resale market in their own tickets (see the comments on Cochrane’s post). That includes security issues, tickets with special accommodations for disabilities, meals, or children, handling transfers of frequent flier miles along with the tickets, and senior discounts.

Conceivably, trades on such a market could take place right up to the moment before the doors are closed on the plane. Buyers would still have to go through security, however, and you need a valid boarding pass to get through security. That might limit the ability of the market to clear in the final moments before departure: potential buyers would simply not be on hand.  Only those already through security, on layovers, or attempting to rebook on the concourse  could participate without changes in the security rules. Perhaps this gap could be minimized if last-minute buyers qualified for TSA pre-check. Also, with the airline’s cooperation, electronic boarding passes must be made changeable so that the new passenger’s name would match his or her identification. Clearly, the airlines would have to be active participants in arranging these trades, but a third-party platform for conducting trades is not out-of the question.

Could other concerns about secondary trading be resolved ion a third-party platform? Probably, but again, solutions would require participation by the airlines. Trading miles along with the ticket could be made optional (after all, the miles would have a market value), but the trade of miles would have to be recorded by the airline. The tickets themselves could trade just as they were sold originally by the airline, whether the accommodations are still necessary or not. The transfer of a discounted ticket might obligate the buyer to pay the airline a sum equal to the discount unless they qualified under the same discount program. All of these problems could be resolved.

Would the airlines want a secondary market in their tickets? Probably not. If there are gains to be made on resale, they would rather capture as much of it as they possibly can. The federal caps on compensation to bumped fliers give the airlines a break in that regard, and they should be eliminated in the interests of consumer welfare. Let’s face it, the airlines know the that a seat on an over-booked flight is a scarce resource; the owner (the original ticker buyer) should be paid fair market value if the airline wants to take their ticket for someone else. Airlines must increase their bids until the market clears, which means that fliers would never be bumped involuntarily. A secondary market in tickets, however, would obviate the practice of over-booking and allow fliers to capture the gain in exchange for surrendering their ticket. Once purchased, it belongs to them.

Valuing Water Properly

16 Friday Sep 2016

Posted by in Property Rights, Water Markets

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The Western U.S. is dealing with its water crisis in a variety of ways, but the most promising solutions, and the least draconian, involve the creation of water ownership rights and markets in which they can be traded. This recent Vox interview with John Fleck, author of “Water Is for Fighting Over“, emphasizes the dramatic reductions in usage that have taken place over the past few decades. Unmentioned, however, is that without correct price incentives, much of this adaptation involves unnecessary costs. Many users are forced to restrict water use via coercive rules. Even when conservation entails the installation of relatively simple technologies like low-flow toilets and less water-intensive landscaping, mandates do not encourage water to flow to its highest-valued uses. Mandates force conservation on all uses regardless of the efficiency with which it can be accomplished, leading to higher costs. Of course, droughts induce changes in agricultural usage as well (and reduce yields), but those changes are always suboptimal to the extent that real price incentives for a crucial input are absent.

Fleck is highly supportive of a few cases of water trading within and between certain irrigation districts. Despite these cases, however, water is priced too low in most jurisdictions to reflect its actual scarcity, and the adjustments that do occur are generally indiscriminate in terms of economic efficiency.

The only way to bring rationality to water use is for all parties to have an interest in its long-term sustainability. Markets can do that much better than collective action or forms of regulation instigated by the state. But for markets to work, traders must have a secure right in the thing being traded. Water rights are controversial, to say the least. Some basics of water rights are discussed briefly in this review of a book called “Water Capitalism: The Case for Privatizing Oceans, Rivers, Lakes, and Aquifers“, by Walter Block and Peter Nelson.

First, the riparian system, which works only when water is plentiful:

“‘The concept is that ownership of the adjacent land includes the riparian zone [the water frontage zone, i.e. shore] … typically to the centerline (unless he has holdings on both sides …) as well as the water [itself]. Pure riparian ownership gives the proprietor the privilege of drawing water … as long as there is any [to draw]’“

The in-toto system requires that any body of water, or any independent source of water, be owned by one entity, whether that is an individual, a cooperative, or a corporation. In such a world, owners of water assets would have an economic interest in good stewardship, and would charge rates that would effectively limit drawdowns to a sustainable flow. That is the only way to preserve the long-term value of their asset. However, the idea of an “independent” source of water is often problematic or even superfluous, as many or even most sources of water are dependent on others to one degree or another.

The prior appropriation system of water rights is described by Peter Nelson in this quote:

“‘This type of ownership both involves the water and measures it. The first user constructed the device(s) necessary to utilize and/or divert what he needed. In so doing, he mixed his labor with a natural resource. But what exactly does he own? It is not geometric in nature. The flow of water is what he possesses.’“

In some respects, prior appropriation is similar to the concept of squatter’s rights. However, the author of the book review linked above, Ryan Griggs, claims that ownership in a rate of flow, a usage right, is fundamentally different than a property right. I disagree. There are other forms of property that constitute claims to future flows of income, such as shares of stock or bonds held in perpetuity, and those flows are valued and traded as property. In any case, I’m not sure why ownership in a rate of usage is problematic from the perspective of the resource allocation problem at hand.

Prior appropriation is a convenient way of addressing the problem of vesting users with rights. Those rights would necessarily be attached to the land or area on which usage occurs, rather than portable for users, but I will continue to refer to “users” in what follows, rather than “places”. To simplify, suppose that each user owns an annual allotment of water as a percentage of total availability. If total availability fluctuates, some users will find it easier than others to adjust their usage. Individual users would receive their allotments based on prior use. They would pay a fee for the infrastructure and technology needed to extract and distribute water to them, and they would pay an additional rate per unit for water used above their allotment. If they use less than their allotment, they receive a rebate at the same rate per unit (or a “feebate“, a term sometimes used in conservation circles). Thus, users are given a conservation incentive.

In a low-water year when total availability is down, the price of usage will rise as users requiring more water than allotted bid on the available supplies. Those able to adjust their usage downward might find it profitable take “feebates”, in effect selling part of their allotment to other users. In this sense, water will flow to those uses in which its value is highest. The price of these trades will reflect the actual scarcity of the resource, and the higher price leads to more intensive conservation efforts. In fact, depending on the going rate, it’s possible for a user to become a net water seller, in term of monetary value, in a given period. It is also possible to arrange trades of longer-term water transfers, future water transfers, and even contingent water transfers.

The initial allotments are relatively easy to measure, though the details surrounding the measurement of historical usage must be agreed upon. However, future adjustments must be based on changes in total availability. How is that measured? A first step is to determine the extent to which total water supply is above or below a range deemed acceptable from a natural perspective. This, in turn, depends upon the annual rate at which the stock is recharged or replenished from natural sources. These data allow the calculation of a flow of usage each year that is consistent with moving toward the acceptable range for the water level. Depending on initial conditions, the allotments might require adjustments in usage in subsequent years, but that depends on the type of water source and the response of usage to the new conservation incentive. The path to “sustainable” allocations might have to be gradual, requiring several years. This might also require water authorities to purchase flows from other basins to bridge the gap, with the cost passed on to users in the marginal water rate (and reflected in feebates to the suppliers).

This might sound suspiciously like a “cap and trade” system because that’s exactly what it is. The determination of the initial allotments is a relatively benign exercise. The process for determining later adjustments is described above as a strictly technological problem, but in truth, it would be fraught with controversy, requiring a series of of political compromises. Battles over changes to allotments are likely to recur during periods of severe drought. This has been the case in Australia, for example, where the development of water markets is at a fairly advanced stage.

Australia succeeded in developing extensive water markets in response to the severe scarcity faced by farmers and other users in certain water basins. The National Water Commission published this report on water markets in 2011, which provides something of a blueprint for their system. These markets are primarily for water used in irrigation. The details of allotments in Australia are discussed in the report. No feebate system as described above is mentioned. Their water markets are now overseen by the Department of Agriculture and Water Resources. There are water brokers and exchanges to facilitate trading. WaterExhange and Waterfind provide on-line platforms for water trades. This Reuters article from September 2015 is of interest for its description of how water markets can become highly politicized under certain circumstances. This recent Bloomberg piece makes essentially the same point.

Regardless of the political complexities, the growing scarcity of water in the American West demands innovative new approaches to conservation. Creating secure rights in water flows and allowing users to engage in mutually beneficial trades of water gives them the right incentives for rational water management. Traditional approaches such as usage restrictions, mandates, and large water storage infrastructure projects are all costly and do not promote the  efficiencies that come naturally by way of market solutions.

 

Further reading: A recent report from The Nature Conservancy is strongly supportive of markets to deal with water scarcity. This Hamilton Project paper on water markets is worth reading as well. Two previous posts on Sacred Cow Chips dealt with water markets: “Scarcity Scarcity Everywhere, And Water Pricing Stinks” and “Can Water Markets Drive the Nuts From California?”

 

 

Back To The Restroom

29 Friday Apr 2016

Posted by in Discrimination, Federalism, Privacy, Property Rights

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I’m following-up on “I’m a Restroom Federalist” by sharing “We Need Separation of Bathroom and State” by Roy Cordato at the Mises Institute. He makes a clean defense of the libertarian view that restrooms choices on private property must not be controlled by government. Any attempt to do so is a violation of private property rights, according to this view. I did not adequately treat the question of property rights in my first “restroom” post. Strong property rights in this context mean that you, a private businessperson, can set the rules for restroom use on your premises, or no rules at all. If you or your customers prefer gender-neutral restrooms in your place of business, so be it. If you believe your customers prefer separate restrooms based on a definition of gender, you can post appropriate signs and face any complaints privately without interference from government.

Many sincere observers hope for a way to fairly accommodate transgender individuals without unduly compromising the rights of others. In my mind, discrimination (or differences in accommodations) should not be tolerated in society if based on arbitrary distinctions. By that I mean the victim differs from the discriminator only in nonessential ways for the purposes at hand. For example, discriminating on the basis of race is wholly arbitrary in almost context. (A director casting the part of an individual of a specific race is a possible exception.) No real harm comes from tolerance and equal treatment in these contexts. I have argued that the market is self-regulating in punishing discrimination. And one can argue that certain freedoms may be violated (association, religion, expression and even property) when even arbitrary forms of discrimination are outlawed, as they are. In these situations, however, laws can work because there is little ambiguity in defining victims of discrimination and the legitimacy of their victimhood.

Is discrimination against transgenders in their restroom options just as arbitrary as it would be against other minorities? That depends upon whether “transgender” can be defined objectively. If it cannot, then denying the bearded lady’s transgender claim in the restroom is not so arbitrary, given the privacy rights of others.

Tyler Cowen discusses some of the complexities of determining whether there should be a legal definition of transgender, or a more “nuanced” definition of gender with three or more categories. That would eliminate any legitimate objections to gender-specific  restrooms. However, a legal standard cannot be based solely on “inner feelings”. Aside from genitalia, are there objective facts that can be brought to bear in defining gender? A personal physician’s assessment of “gender intent” is one possibility. An active regimen of hormone replacement therapy is another. However, transgenders themselves might object to any specific definition of gender imposed by government. Many transgenders would prefer to have it remain a matter of self-identity, but it is impossible to clearly define rights on that basis. As Cowen notes, the “most libertarian view is to refuse to offer a legal definition of transgender.” He also adds:

“If we stick with no legal definition of transgender, let’s tackle the remaining problems directly. For instance we could significantly increase the penalties for men who abuse women or young girls in or near women’s rooms, if indeed that is an ongoing problem.“

As I intimated in my earlier post, I am unconvinced that gender-neutral restrooms won’t encourage voyeurism by posers. That implies a conflict between the rights of transgenders and the fundamental right to privacy. Given that fact, Cowen’s suggestion is sensible under any restroom regime. He also cites the existence of voluntary gender registration systems in other countries. Given a clear definition, transgenders choosing to register could use the restroom consistent with their gender identity and would have documented proof if any question arose as to their right to use a particular facility.

Cordato provides a good explanation of the Charlotte anti-discrimination ordinance and North Carolina’s new law striking it down. The Charlotte ordinance stripped owners of business property of their right to set rules for their own restrooms. The state law does several things: It restores the rights of business owners to provide separate restrooms for males and females, which is fine as far as it goes. It also mandates gender separation of multi-occupancy restrooms and locker rooms in government facilities. Truly, it is hard to imagine any good coming of mixing middle-school girls and boys in the same restrooms and locker rooms. However, the state law also prohibits the promulgation of any anti-discrimination law by lower jurisdictions. That seems a bit too sweeping.

Cowan says the North Carolina law is a solution in search of a problem, or worse:

“North Carolina made a mistake in signing the new law. Not just a practical mistake, because of the backlash, but a mistake outright. I’m not aware there was a problem needing to be solved, and yet new problems have been created.“

Maybe so, but the city of Charlotte clearly took a step in violation of private property rights, and one that threatened privacy rights. I stated in my first restroom post that alternative arrangements will be tested socially, at the ballot box, and by the courts. Some object to the strong privacy ethic that exists in the U.S. as prudish, but it is a cultural given, and privacy rights are protected by the Constitution. Given a conflict over rights between two parties, the courts must decide how to balance those interests.That’s as it should be. And so we’re back to the beauty of federalism!

 

 

 

Must Support For “Family Planning” Be Compelled?

05 Monday Oct 2015

Posted by in Big Government, Liberty, Presumptive rights, Property Rights

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Where do Libertarians stand on the issue of federal funding of Planned Parenthood? What sort of balance should be struck between the rights of conscientiously-objecting taxpayers and the rights of women to use Planned Parenthood (PP) services? The correct answer has nothing to do with abortion, an issue on which Libertarians lack unanimity. However, the existence of moral objections by any segment of society, whether considered valid by a majority or not, is an important consideration.

Do Individual Freedoms Require Taxpayer Support?

Sheldon Richman discusses the funding question on his Free Association blog in “Planned Parenthood, Social Peace and  the Libertarian approach“. He first makes a basic point: “… no one’s freedom is violated by lack of access to taxpayer money.” I agree, but this statement requires some context. For Libertarians, the baseline is a society in which individual liberty is a presumption. That cannot be the case if taxes and transfers dominate our economic lives. If we’re all busy picking each other’s pockets, then perhaps anyone can lay claim to a dollop of public funds to pay for any damn thing they want. But in a society that explicitly limits the powers of coercive government, private individuals cannot, on the public dime, lay claim to whatever they wish to compel from others. What they desire, after all, is almost always available privately. Therefore, the denial of public funding for PP does not constitute a denial of anyone’s rights.

Individual’s are free to exercise their reproductive or non-reproductive rights as they see fit, and to pay for related services themselves or by seeking a benefactor. Nothing is deprived to that individual other than an invalid claim on the belongings of others.

“Individual rights ultimately boil down to the single right to be free from aggression, that is, to self-ownership. Rights would be defined out of existence if they could be ignored whenever doing so would make someone else’s objectives easier to accomplish. Such an approach to “rights” would turn rights theory on its head by making us a mere means to other people’s ends rather than ends in ourselves.“

Consistent Application of Property Rights

Richman asserts that the right of ownership of one’s body applies equally to the right of individuals to the income they produce:

“Ironically, the right to choose abortion is defended as an application of the right of women to their bodies, that is, as a property right (self-ownership). Another implication of the right to one’s own body is the right to control the fruits of one’s labor (income). No coherent theory of rights can permit a clash of the right to one’s body with the right to the fruits of one’s labor. Thus implicit in the pro-choice case is an argument against tax funding of Planned Parenthood (and anything else), that is, against taxation itself.“

Leftist elites say that a denial of public funding for PP is tantamount to a denial of service to low-income women. Richman asks the elites to put up or shut up: if they believe the services in question are critical, they are free support PP financially, but they much prefer to extract resources from taxpayers without regard to possible moral objections.

Protection of Religious and Moral Principles

Richman adds the following thoughts on public funding of Planned Parenthood near the end of his post:

“Reasonable people of all persuasions should see that it is simply unreasonable to force people to finance an organization they find morally offensive. Thomas Jefferson famously said, ‘To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves is sinful and tyrannical.’ Compelling men and women to furnish contributions for the performance of services they deem immoral (whether or not they are) is worse.“

Supporters of public PP funding have sought to deflect morality-based opposition with the contention that abortions represent only 3% of PP’s services, but Slate debunked that claim over two years ago. It was based on a count of tests and procedures performed, not on revenue. PP also claims that tax funds never pay for abortion, but as Richman points out, once available, the revenue is fungible and may be used to cover the cost of any procedure. In short, the argument is specious.

The Public Good Argument Is Weak

One more elephant in the PP funding debate concerns the appropriate functions of government. Does PP provide a truly “public” good, one having benefits that are nonexclusive to the primary user? Health services are sometimes assumed to confer public benefits; that is an easy argument in the case of infectious diseases and to some extent for medical research, but not for most health services. The benefits of individual health services are largely private, providing little justification for government funding of PP from a public finance perspective.

Collective Action Needs Strict Limits

Collective action should be confined to the provision of public goods, but even then it can be fraught with conflicts, such as the difficulty of accommodating pacifists during wartime. A truly liberal society will do all it can to accommodate diverse beliefs by allowing objectors to opt out, if possible, or avoiding the funding of private activities, especially those over which there is significant dissent. Under no circumstances should one be compelled to pay for private services that they find to be morally objectionable.

Is The Patent a Perversion?

28 Tuesday Apr 2015

Posted by in Property Rights

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No one likes a monopoly except the monopolist, and a monopoly granted by patent is generally no exception. Patents are intended to be temporary, but they are often extended, at high cost to customers, beyond what many consider necessary as an incentive for innovation. There is also doubt about the validity of many “innovations” on which patents are issued. Alex Tabarrok once posted this cute illustration on the excesses of patent law. He has also discussed the existence of “patent thickets”, situations in which “a new product can require the use of hundreds or even thousands of previous patents, giving each patent owner veto-power over innovation“, or at least a way to skim some of the profits. Such thickets serve as a detriment to innovation, contribute to excessive litigation, and ultimately defeat the purpose of rewarding an innovator. Patent “trolls”, who threaten litigation over patent issues but may not own any patents themselves, have become a growing problem. In many ways, intellectual property laws begin to look like a rent-seeker’s playground. James Pethokoukas blogged late last year about a new study by the Congressional Budget Office stating that the U.S. patent system had “weakened the linkage between patenting and innovation“.

There is strong disagreement among libertarians about the validity of intellectual property rights (IP — copyrights, trademarks and patents). My natural sympathies are with the individual who rightfully seeks to benefit from their own creativity and hard work, but whether an innovator should enjoy a state-enforced monopoly on any and all applications of an idea is another matter. If potential competitors, customers and society have an obligation to this individual, some would insist that it is merely an ethical obligation, not one that should be sanctioned by the state.

In what follows, I will mostly refer to generic “ideas”, with the caveat that there are important distinctions between patents, trademarks and copyrights. I do not mean to minimize those distinctions. Rather, my interest lies in the general notion of intellectual property and any fundamental rights that successful “ideation” should confer. I confess that I have a bias in favor of rewarding innovators, but that might be a mere mental remnant of our legacy of IP protection in the U.S.

Suppose that some person, Mr. I, has an idea, and it is the first of its kind. Should Mr. I be granted an exclusive right to the idea and a monopoly on its application? Two qualities of tangible property are thought to be helpful in thinking about this kind of problem: rivalrousness and exclusivity. Rivalrous benefits make sharing difficult and make a thing more suitable as private property. Exclusivity means that others can be restricted from enjoying the benefits. If ideas had these qualities, then possession of an idea would settle the issue of rights without the need for special recognition of IP by government.

Pure public goods like air are non-rivalrous. Ideas themselves are often said to be non-rivalrous, but what is done with them might produce rivalrous benefits. If the benefits of Mr. I’s idea can be enjoyed by one individual without diminishing the benefits to others, then the idea is non-rivalrous.

Exclusivity is a closely-related but separate concept meaning that the benefits can be enjoyed privately, to the exclusion of others. Pure public goods lack both rivalrousness and exclusivity. On the other hand, a painting can be owned and kept in a private home, thus making it exclusive despite the fact that its benefits are largely non-rivalrous; though multiple individuals can enjoy a film simultaneously (non-rivalrous), it can be screened in a private venue charging admission; and while software can be shared, it is possible to achieve a measure of exclusivity by limiting the media (and replicability) through which it is available. However, the idea underlying a productive machine or process may be exclusive only to the extent that it cannot be discovered or reverse-engineered. While a new machine may be purchased from Mr. I and then owned and used exclusively, the idea itself has only limited exclusivity.

To strip the problem down to bare essentials, suppose there are no frictions in the transmission of information and that if Mr. I makes any practical use of his idea, or even mentions it to someone else, then the idea will be immediately known to all others. The idea itself is non-rivalrous and non-exclusive. There could still be gains to marketing applications if there are production costs involved (as that discourages entry), and those gains are rivalrous if the number of potential buyers is limited. To slightly rephrase the original question: Should Mr. I be granted, by the power of the state, an exclusive right and a monopoly on applications of his idea? A brilliant idea may have a rivalrous dimension and its benefits may be exclusive, but any non-exclusivity of the idea itself will diminish its market value. Does that offer sufficient grounds for the existence of IP?

This was essentially Eugene Volokh’s position when he asserted, in 2003, that a non-rivalrous good (water from the water table) has a market value, like any piece of tangible property, as long as it is possible to exclude others from access (to a well). (But that was not Volokh’s main argument in support of IP — see below.) Lawrence Solum at Legal Theory Blog took issue with Volokh’s position on valuation, insisting that it is often impossible to price IP optimally and therefore it is not like tangible property. Here is Volokh’s brief rejoinder, which rests partly on the argument discussed in the next paragraph.

A standard defense for IP is that rewarding invention and creativity enhances incentives for “great works” and technological advance. This was Volokh’s main defense of IP. Many libertarians find this hard to swallow, however. First, they insist that creative action is often driven by non-pecuniary motives. Nevertheless, art and invention are facilitated by funding, so the existence of IP rights may help to secure that support. A second objection is that ideas are frequently not unique; there are many examples of near-simultaneous discoveries. So, as this objection goes, if A hadn’t thought of it, B would have, and the incentive is often unnecessary. That is anything but absolute, however.

A very libertarian argument against property rights for ideas is that defining such a right infringes on the property rights of others. That is, any law restricting the use of an idea by others necessarily prevents them from using their own resources in a particular way. It therefore represents a kind of taking. This post by Stephan Kinsella at the Mises Daily stakes out this position:

“Patents grant rights in ‘inventions’ — useful machines or processes. They are grants by the state that permit the patentee to use the state’s court system to prohibit others from using their own property in certain ways — from reconfiguring their property according to a certain pattern or design described in the patent, or from using their property (including their own bodies) in a certain sequence of steps described in the patent.

In both cases, the state is assigning to A a right to control B’s property: A can tell B not to do certain things with it. Since ownership is the right to control, IP grants to A co-ownership of B’s property.“

Kinsella’s view is that creation, in and of itself, does not imply ownership. It is a transformation of resources, but ultimately the owner of those resources must own the creation. My difficulty with this argument is that an idea, if previously unknown to anyone, has no necessary impact on a prior use of resources owned by others. The ex ante value of those resources is based on their prior use, and that use can be continued. Certainly, if the new idea implies that the prior use is no longer the best use of those resources, then an patent-like restriction on the use of the new idea represents a harm. For example, if the new idea reduces production costs and an established competitor is restricted from using the idea, they will be harmed. Nevertheless, I hesitate to call this a “taking” because there is no restriction on the prior use.

Roderick T. Long makes the same argument as Kinsella in “The Libertarian Case Against Intellectual Property Rights“:

“... information is not a concrete thing an individual can control; it is a universal, existing in other people’s minds and other people’s property, and over these the originator has no legitimate sovereignty. You cannot own information without owning other people.“

Long makes the further claim that ownership of inventions embodying IP is not legitimate because one cannot own a “law of nature”:

“Defenders of patents claim that patent laws protect ownership only of inventions, not of discoveries. (Likewise, defenders of copyright claim that copyright laws protect only implementations of ideas, not the ideas themselves.) But this distinction is an artificial one. Laws of nature come in varying degrees of generality and specificity; if it is a law of nature that copper conducts electricity, it is no less a law of nature that this much copper, arranged in this configuration, with these other materials arranged so, makes a workable battery.“

I find this view preposterous. Nature exists apart from our ability to exploit it. A new piece of knowledge or practical technique is not itself a “law of nature”. It is a discovery about the laws of nature.

Here are Arnold Kling’s thoughts on these and other IP posts, including this short piece from Daniel Drezner, who discusses the importance of credible commitment in protecting rights. A credible commitment does not exist when ex ante assertions of IP protection prove to be malleable ex post, under pressure from critics pointing to the larger gains of rescinding those protections.

I was motivated to write about IP after reading a post by Jeffrey Tucker at the Beautiful Anarchy blog, who wrote about the severe handicaps imposed by government regulation on society. In that post, he briefly disparaged IP. Tucker noted the spooky similarity of the present regulatory environment to Ayn Rand’s novel Anthem. I agree, but there is some irony in this, as Rand herself was a strong supporter of IP rights. Here is what Tucker said about IP:

“Through intellectual property laws, the state literally assigned ownership to ideas that are the source of innovation, thereby restricting them and entangling entrepreneurs in endless litigation and confusion. Products are kept off the market. Firms that would come into existence do not. Profits that would be earned never appear. Intellectual property has institutionalized slow growth and landed the economy in a thicket of absurdity.“

The nation’s founders certainly wished to recognize IP rights, but only within limits. The so-called Copyright Clause in Article I of the U.S. Constitution empowers Congress:

“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

So, like it or not, IP is recognized in the Constitution. The libertarian arguments against IP are persuasive in some respects, but I am not wholly convinced of their wisdom in terms of promoting innovation and economic growth. However, I am persuaded that shorter patent duration and severe limits on extensions would reward innovators and offer them incentives without the loss of growth implied by a long-term grant of monopoly. And this sort of modification might encourage more efforts to handle IP contractually, a topic that is discussed in detail (and with skepticism) in the post linked above from Long. There may be benefits as well to defining a higher threshold as to patentable ideas. For example, some say that only discoveries, not mere innovations, should be granted patents. “Mere” innovators could still capture gains via first-mover advantage and their own branding efforts, but not via patents.