Excerpted from Dean Lueck, “First Possession”

НазваниеExcerpted from Dean Lueck, “First Possession”
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first possession

excerpted from

Dean Lueck, “First Possession”

The New Palgrave Dictionary of Economics and the Law (1998)

First possession has been the dominant method of establishing property rights (Berger 1985, Epstein 1979, Rose 1985). This rule grants an ownership claim to the party that gains control before other potential claimants. First possession is both more prolific and more viable than suggested by the exotic treasure trove and wild animal cases that typically come to mind. In fact, first possession has been applied widely in both common and statute law in such varied settings as abandoned property, adverse possession, bona fide purchaser, fisheries and wildlife, groundwater, intellectual property, land, non-bankruptcy debt collection, nuisance law, oil and gas, pollution permits, the radio spectrum, satellite orbits, seabed minerals, spoils of war including prisoners and slaves, treasure trove, and water rights. First possession is also a powerful norm (Ellickson 1991) tightly woven into the fabric of Anglo-American society, where it is better known as "finders keepers" or "first come, first served," in cases ranging from street parking and cafe seating to setting up fishing huts on frozen lakes. First possession has also been a fundamental component of civil law, traditional African and Islamic legal systems, as well as informal and customary rule-making around the world (Dukeminier and Krier 1993, Lawson 1975). Indeed, the application of first possession rules touches on important issues in law and economics such as the role of transaction costs in shaping legal institutions, the link between private contracting and government action, and the relative efficiency of common law, norms, and statutes. Perhaps just as important, rules of first possession are intimately related to the “justice of acquisition,” a major topic in philosophical and political discussions of distributive justice (Nozick 1974).

I. A BRIEF INTELLECTUAL HISTORY. Despite its persistent use, most scholars, have had little good to say about first possession rules. Legal scholars and political philosophers have considered it to be unjust (Becker 1977, Cohen 1927) and economists have considered it to be inefficient. More recently, however, first possession rules have been argued to be both efficient and just (Epstein 1979 and 1986, Lueck 1995, Rose 1985).

A. Political and Legal Theories. In John Locke’s ([1690] 1963) labour theory of property, each man has a natural right to himself and can gain ownership of natural resources such as land or game by “mixing” his labour with the resource. Thus, a man acquires ownership to a plot of virgin land by tilling and cultivating it. By this process, people can establish private property rights to the earth’s abundance that was given by God “to all mankind in common.” Many scholars have noted the limits of Locke’s theory (e.g., Epstein 1979, Nozick 1974, Rose 1985), particularly for his vague specification of labour and the extent of the resulting property claim, for what has become known as the Lockean proviso that a labour-based property claim must have “enough and as good left in common for others” (Locke [1690] 1963, II §27), and for the ambiguity surrounding his use of the term “things held in common.” Despite these faults, Locke’s theory of property remains a powerful defence of individual rights, more or less consistent with real-world application of the rule of first possession. Nozick (1974) attempts to salvage Locke’s theory by modifying his proviso, implicitly arguing that first possession is a just method of acquiring holdings.

Two of the greatest common law jurists -- William Blackstone ([1769] 1979) in England and Oliver Wendell Holmes (1881) in America -- defended the rule without hesitation. Yet neither took pains to develop a theory of first possession. Blackstone, for instance, noted (Book II, Chapter 1,2): “There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe. And yet there are very few, that will give themselves the trouble to consider the original and foundation of this right.” Indeed Gaius, the first-century Roman commentator stated the rationale simply: “What presently belongs to no one becomes by natural reason [my emphasis] the property of the first taker” (Mommsen et al. 1985, Book 41, §1).”

Among contemporary legal-political theorists, Epstein (1979, 1986) offers the strongest defence of first possession as a legitimate method of establishing property rights. Epstein argues that first possession is valuable because it promotes decentralized ownership and thus is consistent with a minimal state (a Lockean view), and that a time-based rule like being first is a clear, simple way to mark things which reduces transaction costs. Epstein, notably impressed with the historical dominance of first possession rules and sceptical of those who dismiss them, is the first to attempt a positive theory that explains their dominance. Similarly, Rose (1985) notes the persistence and virtues of first possession but stresses the variation and subtleties in the way in which possession is determined, arguing that first possession tends to create clear property claims that reward “useful labor.” The work of both Epstein and Rose has an advantage over that of other scholars for two reasons. First, they examine the actual practice of first possession in both law and custom. Second, they heavily rely on the economic theory of property rights. Berger’s (1985) study has a similar economic theme.

B. Modern Economics. Economic analysis of first possession began when Barzel (1968) examined the question of the optimal timing of innovation. He showed that the potential gains could be completely dissipated in a race to develop the innovation; because no one potential innovator could claim ownership of the idea, the race would cause the innovation to be introduced “too early” thus reducing the present value of the innovation to zero. In essence, Barzel rediscovered the analysis of open access along a time dimension (Knight 1924, and Gordon 1954). Wright (1983), in fact, shows that the race equilibrium is exactly analogous to Gordon's average-product rule for exploiting an open access resource. Barzel’s study quickly spawned a highly theoretical literature on innovation and patent races whose notable contributors include Dasgupta and Stiglitz (1980), Loury (1979), and Mortensen (1982). This voluminous literature, which developed as game theory was making inroads into industrial organization is summarized by Reinganum (1989).

The literature on innovation developed rapidly and remained narrowly focused on theoretical optima; yet there was little applied work on the larger issue of first possession. Economists tended to examine first possession rules on a case-by-case basis, ignoring the connection between seemingly distinct bodies of law. For instance, in studies of homesteading (Anderson and Hill 1990), oil and gas (Libecap and Wiggins 1984), and water (Williams 1983) first possession was criticized as an inefficient rule. Unlike political philosophers and legal scholars, the criticism from economists has emphasized that first possession has the potential to dissipate wealth, either from a wasteful race to claim an asset or as a rule of capture which leads to over exploitation. Haddock (1986) generalized Barzel’s argument and gave it wide application in the law. In concluding that first possession rules are generally wasteful, Haddock directly counters Epstein (1979, 1986) and Rose (1985). At the same time, in studies of the broadcast spectrum (Hazlett 1990), homesteading (Allen 1991), and patents and mining (Kitch 1977), economists argued that first possession can be an efficient method of establishing ownership. Taken together, the literature shows considerable disagreement among law and economics scholars on the merits of first possession rules (Merrill 1986). In recent work on property rights to monopoly gains, however, Barzel (1994) argues that dissipation from racing is likely to be mitigated because of heterogeneity among potential claimants. More recently, Lueck (1995) provides a generalization by linking models of racing with models of resource over-exploitation, and focusing on how subtle changes in legal rules can greatly reduce the potential dissipation inherent in first possession.

II. EFFICIENCY AND DISSIPATION UNDER FIRST POSSESSION. In his classic The Common Law, Oliver Wendell Holmes (1881, Lecture VI, 216) wrote: “To gain possession, then, a man must stand in a certain physical relation to the object and to the rest of the world, and must have a certain intent. These relations and this intent are the facts of which we are in search.” As Holmes implied, first possession rules can operate on different margins. For instance, the rule can grant ownership of a barrel of oil to the first person that brings the oil to the surface, under the so-called rule of capture, or it can grant ownership of the entire underground reservoir to the first person that locates the reservoir. The behaviour of the possessor and the use of the oil will obviously differ in the two cases. In the former case, first possession applies to the flow of output from the stock of underground oil, while in the latter case the rule applies to the stock itself, a distinction recognized long ago by Blackstone ([1766] 1979, Book II, chapter 1). Beginning with an unowned asset, the rule of first possession sets in motion a well-specified pattern of behaviour (Lueck 1995). If applied to a stock, private property rights are established directly through possession. On the other hand, if only a flow (or a portion of the stock) can be possessed, the rule of capture ensues. Even within these broad categories the precise meaning of possession can be important, as in the famous case of Pierson v. Post where the court was divided over whether possession of a wild fox was determined by “hot pursuit” or physical capture.

First possession rules often vary as to the duration of the granted ownership right. For example, possession could grant ownership of a pasture in perpetuity or it could simply grant ownership of the grass currently being grazed by one's livestock. Perpetual ownership means ownership of the stock, while a shorter term of ownership means ownership of some flows. Rights to stocks implies ownership to the future stream of flows, so the formal economic model is inter-temporal, while rights to flows means ownership is a one-time event, so the formal economic model examines just one period.

Consider an asset, such as a plot of land, an oil reservoir, or a new idea, that yields an instantaneous (net) flow of benefits R(x(t)), where x(t) is the amount of a variable input supplied by private owners at time t. Let r be the interest rate and assume the flow value, R(t), grows over time at the continuous rate g < r, so that the value of the asset grows over time, and that each period's return is independent of past returns. This formulation recognizes the usual case that during "early" periods assets are not sufficiently valuable to cover the costs of establishing ownership. The first-best full-information value of the asset is


where x*(t) is the optimal input level in period t. In general, VFB is not attainable because of the costs of both establishing and enforcing rights that efficiently allocate use of the resource. Several possible first possession regimes are examined below and summarized in table 1. Each regime is characterized by specific values for the time of possession (t), the number of users (n), the level of the variable input (x), the periodic rent (R), the cost of establishing ownership (C), and the net present value of the resource (V).

[Table 1 about here.]

A. First Possession and the Race to Establish Ownership of an Asset. Ownership under first possession goes to the first person to obtain possession of the entire stock. Assume that the method of possession does not damage other resources and that continued possession costs are zero. The first claimant thus obtains exclusive rights, into the indefinite future, to the flow of rents,, generated by the assets. Since establishing a bona fide claim will be costly and because g < r, rights may not be worth enforcing. Property rights to the asset will emerge, after an initial period without ownership, as the value of the asset increases (Demsetz 1967). As in Barzel (1968) maximizing resource value is a problem of optimally timing the establishment of rights under first possession.

The Single Claimant. Assume there are one-time costs, C, of establishing enforceable rights or demonstrating possession which give the claimant exclusive right to the stream of production for all time. If there is a single potential claimant, the flow from the asset is available after rights to the stock are established. The decision to claim the stock is the result of private maximization. The optimal time to establish ownership (tS) is when the marginal return from waiting (the present value of the asset's rental flow) equals the marginal cost of waiting (the present value of the opportunity cost of establishing rights), so VS < VFB. This is because the net value of the asset must now account for the costs of establishing ownership and the fact that these costs delay ownership and production to tS from t = 0 (see table 1) If there is a competitive race among homogeneous claimants, rights are established "too early" at tR, where tR < tS (Barzel 1968, Mortensen 1982). More important, the race equilibrium implies that the rental stream is fully dissipated; that is, VR = 0.

Efficient Claiming: Heterogeneity and the Race for Lower Costs. Heterogeneity among potential claimants can reduce, even eliminate, the dissipation of wealth (Barzel 1994, Lueck 1995). Assume there are just two competitors (i and j) for ownership of the asset with possession costs Ci < Cj. Also assume that neither party knows each other’s costs. In a race, person i gains ownership just before the closest competitor makes a claim, at time, ti = tR - e, and earns rent equal to the present discounted value of his cost advantage, . The key implication is that as the heterogeneity of claimants (Cj - Ci) increases the level of dissipation will decrease. The analysis remains the same with rental value differentials such as Ri  Rj or different expectations about the rate of growth of the flow value, gi  gj. In the extreme case, where just one person has costs less than the net present value of the asset's flows, the first-best outcome is achieved. Since only one person enters the race, there is no dissipation.

Altering the assumption about information can alter the racing equilibrium. Fudenberg et al. (1983) and Harris and Vickers (1985) show that if competitors have complete information about each other's talents a race will not ensue because only the low-cost individual will have a positive expected payoff of entering the race; that is, VS is achieved if Ci < Cj, i  j = 1, ... n.

Even though claimant heterogeneity can limit, even eliminate, racing dissipation, there arises the possibility that a claimant can gain a cost advantage by expending resources, thereby altering the margins of dissipation (McFetridge and Smith 1980). For example, if competing claimants can acquire the technology to achieve the minimum costs (Ci), then homogeneity and the full dissipation equilibrium is re-established. This extreme result, however, relies on the questionable assumption that homogeneity can be attained easily by investing in the low cost claimant's technology. The more likely reality is that claiming costs depend not only on endogenous investment decisions but also on exogenous forces that generate and preserve heterogeneity. Consider two possibilities. First, if the distribution of talent across individuals is not equal, some people will have innate advantages that will be difficult or impossible, to overcome with investment. Second, if there is random variability in opportunities, then some individuals will be in the position of being the low cost claimant; again, investment is unlikely to destroy the random advantage.

Because first possession is a rule that restricts competition to a time dimension, there is another reason why investment cannot routinely eliminate heterogeneity. Cost advantages, no matter how they were gained initially, are expected to diminish over time because potential investors ultimately will gain information that allows them to mimic the behaviour of the low cost person (Kitch 1977, Suen 1989). As long as costs depend on exogenous factors, dissipation will be incomplete. In the worst-case race equilibrium, the first claimant will own just the value of his exogenous advantage; in the best-case, extreme heterogeneity or the full information game theory equilibrium, the first claimant will own the full potential value, VS, of the asset.

B. First Possession and the Rule of Capture for Asset Flows. When the costs of enforcing a claim to the asset are prohibitive, ownership can be established only by capturing or "reducing to possession" a flow from the asset. The rule of capture -- simply a derivation of the rule of first possession -- will occur when enforcing possession of the flow is cheaper than enforcing possession of the stock. Wildlife and crude oil are the classic examples: ownership is established only when a hunter bags a pheasant or when a barrel of oil is brought to the surface. The stock itself, be it the population of pheasant or the oil reservoir, remains unowned. As a result, the new "race" is to claim the present flow, R(t), by capturing the product (e.g., the dead pheasant) first.

Epstein (1986) notes that as a rule of capture, first possession can lead to classic open access dissipation. Under the rule of capture no one owns the asset’s entire stream of flows, . As a result, the formal economic analysis of dissipation is now one-period, rather than inter-temporal as in the race. Assume n people have unrestricted access to the stock and that each maximizes his own rent subject to the rule of capture, which means that each person captures the flow in proportion to his share of total capture effort. Assuming homogeneous claimants, rent dissipation will increase with the number of users and in the limiting case of a large number of claimants, no one earns rent (), so the aggregate per-period rent and the present value of the asset is also zero, or VRC = 0 (Cheung 1970).

Common Property: Contractual-Legal Limits on the Rule of Capture. Restricting access to the stock creates a new ownership regime -- common property -- which is an intermediate case between open access and private ownership. Common property may arise out of explicit private contracting (e.g., unitized oil reservoirs, groundwater districts) or out of custom (e.g., common pastures and forests); it may have legal (e.g., riparian water rights) or regulatory (e.g., hunting and fishing rules) origins that have implicit contractual origins (Ostrom 1990). Contracting to form common property effectively creates a group that has exclusive rights to the resource (Lueck 1994, Eggertsson 1992). Acting together individuals can realize economies of enforcing exclusive rights to the asset.

A simple, customary common property rule is one allowing equal access to each group member (Blackstone [1766] 1979, Ostrom 1990) Equal sharing avoids the explicit costs of measuring and enforcing individual effort, but it does create a rule of capture within the exclusive group. Because individual effort is not explicitly part of the contract, each member chooses his own effort (xi) as he captures his share of the resource's product in competition with other members. In a common property pasture, for example, this internal rule of capture might emerge as competition among members for that part of the pasture with the best grazing, whether for better grass or fewer predators. The size of the group is chosen in order to maximize group wealth subject to the constraints of each member’s rule of capture effort level (xRC) and the costs of excluding outsiders. Optimal group size is thus a trade-off between the increased resource use associated with a larger group and the increased exclusion costs associated with a smaller group (Eggertsson 1992, Lueck 1994). Common property falls short of the potential optimum (VS), yet, given the prohibitive costs of establishing private rights to the asset, it provides an important alternative that limits open access dissipation and generates positive rents.

Homogeneous Groups and Common Property. Dissipation from internal capture can be limited by maintaining a homogeneous membership (Lueck 1994, 1995). With equal sharing rules, a homogeneous membership actually maximizes the present value of a common property resource. Once a group chooses an equal sharing rule there is an incentive to maintain homogeneity. With heterogeneous members and equal shares, highly productive individuals will supply too little effort and the less productive will supply too much, so dissipation will increase. In effect, equal-sharing rules increase group wealth when homogeneity among group members is enforced. This provides an economic rationale for preserving homogeneity by screening potential members, by indoctrination, or by restricting the transfer of memberships.

C. Efficient Restrictions on Transferring Rights. The distinction between stocks and flows also has implications for the efficient transfer of rights. When property rights are well-defined, voluntary transfer is always wealth enhancing. If not, transfers can cause wealth-reducing externalities. (Epstein 1985, Rose-Ackerman 1985). Well-defined rights mean that exclusive rights are defined to the stock and, accordingly, its stream of flows over time. This implies that the law should allow rights transfers when first possession establishes clear ownership of resource stocks.

When first possession triggers the rule of capture, however, the rights to the stock remain ill-defined. Legal and contractual restrictions on access can limit dissipation. If individuals having access rights under the rule of capture are allowed to trade their rights, however, dissipation can be even greater than when trade is restricted (Epstein 1985). For example, if a member of a common fishery sells his membership to an outsider with a superior fishing technique, the new member will "over-fish," damaging the common resource and reducing its value to the other members who were not party to the exchange.

D. Auctions and Administrative Alternatives Law and economics scholars studying first possession have overwhelmingly recommended auctions as the efficient method of establishing rights without closely examining the costs of auctions (e.g., Barzel 1968, Coase 1959, Haddock 1986, Posner 1992, Williams 1983). Assuming the same costs of establishing the rights (C), the winner of the “ideal” auction pays VS and begins production at tS, thus maximizing the value of the asset. Yet, in practice, auctions will entail real and often large costs (Epstein 1979, McMillan 1994). Under first possession, private claimants must bear the cost, Ce-rt, of enforcing a claim to the resource. Similarly, before the auction can take place, the state must establish rights to the asset at a cost, CSe-rt, and also incur costs, CAe-rt, of administering the auction. In addition, the state must survey and police the resource. The state also must determine what size parcels of the asset to sell, the method of auction to use, and so on (McMillan 1994). In addition, if the state cannot protect property rights adequately after the auction, potential buyers will bid less than V*. Epstein (1979) also notes that interest groups will attempt to alter the auction rules to suit their own advantage leading to further dissipation of rent. Indeed, he notes that administrative alternatives simply were not available (i.e., too costly) during much of the development of the common law. As a result, only if the state's costs (CS + CA)e-rt are less than Ce-rt will V* result from an auction. The choice between auctions (or other administrative policies) and first possession is ultimately a trade-off between costly auctions and potential dissipation from races. In some cases -- future patentable innovations, sunken treasure, and the unused electromagnetic spectrum -- the resource cannot be auctioned because it has yet to be identified. Haddock (1986), despite his general criticism of first possession, favours first possession rules in these cases too.

III. THE DESIGN OF THE LAW: IMPLICATIONS AND EVIDENCE. Once the two potential paths of dissipation (racing and over-exploitation) are recognized, an analysis of the law of first possession reveals an economic logic (Lueck 1995). When first possession has the potential for a race, the law tends to mitigate dissipation by assigning possession when claimant heterogeneity is greatest. On the other hand, when first possession breeds a rule of capture, the law tends to limit access and restrict the transfer of access rights to limit open access exploitation. A strictly legal definition of “first possession” applies to a relatively small set of circumstances such as unclaimed land and deep-sea treasure. The economic approach, on the other hand, recognizes many applications of first possession. Judicial opinions and statutes may use such terms as “first in time, first in right,” “priority in time,” or the “rule of capture.” The definitions provided by legal scholars vary too. For instance, Dukeminier and Krier (1993, p.3) call first possession “acquisition of property by discovery, capture, creation.” Regardless of the precise legal terminology, all of the subjects examined below are governed by rules in which legitimate ownership is created by establishing possession before anyone else. Table 2 summarizes the first possession rule in each of the cases discussed below.
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