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      "author": "arrunada",
      "body": "<html>\n<p>&nbsp;In <a href=\"https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID2879827_code60143.pdf?abstractid=2879827\">this paper</a>, published at the<em> Journal of Institutional Economics</em> (2017), I trace the disconnection between economic analysis and property law as well as repeated policy failures in land titling and administrative simplification to a theoretical choice: most law-and-economics analyses of “property” rights have retained a contractual view that is essentially bilateral and therefore in fact deals with <em>personal</em> instead of <em>property</em> rights. Applying economics to property law holds the promise of enlightening such policies but requires that the focus be placed on sequential exchange as the distinctive feature of property markets.&nbsp;</p>\n<p>The paper first analyzes how the prevalent contractual emphasis—in particular, the almost universal reliance on an assumption of bilateral “single” exchange with only two parties and a single contract—ends up fostering three biases that inadvertently support systematic policy blunders: overemphasizing the initial allocation of rights, paying little attention to legal rights and overestimating the power of private ordering.&nbsp;</p>\n<ul>\n  <li>First, retaining the single-exchange assumption leads the law and economics of property to emphasize the initial allocation of rights because recurrent allocation is not even conceivable in such a setup. Inadvertently, this focus on initial allocation provides a fitting framework for unbalanced efforts in both land titling and business formalization. Indeed, most projects in these areas concentrate expenditures in the first steps of the process (such as titling land parcels and formalizing business firms), paying hardly any attention to the need for recurrent allocation (that is, for registering subsequent transactions and keeping firms formal in the future).&nbsp;</li>\n  <li>Second, disregarding the foundational role of legal rights lends support to institutional reforms with mistaken priorities. This is the case of, mainly, land titling projects that confound and even privilege geographical over legal demarcation of land. Similarly, simplification reforms often pursue synergies by integrating contractual and administrative registries, losing sight of the fact that, since each register serves &nbsp;a different function (respectively, private and fiscal), they require different organization.&nbsp;</li>\n  <li>Lastly, disregarding contract interaction and sequential exchange leads to overestimation of the effectiveness of private ordering in many different areas, from traditional conveyancing to the modern application of blockchain technology. Policy consequences are visible in an array of institutional and regulatory reforms that naively liberalize outdated palliative services, such as those of conveyancers and notaries public, without realizing that success likely hinges on reforming property registries instead. Meanwhile, underdeveloped or ineffective registries remain untouched.&nbsp;</li>\n</ul>\n<p>Getting these policies right requires a better understanding of the institutions of property markets, which in turn entails replacing the single-exchange assumption with an assumption of sequential exchange, in which at least three parties are involved, at least two contracts between these three parties interact and, as a consequence, bilateral contracting— the primary solution for use externalities—may itself cause substantial negative externalities. These differences in the structure of the problem and the nature of the externalities hold important consequences for public action. In particular, two additional elements of public ordering (with “public” broadly understood as serving the interest of all market participants) are needed to contain exchange externalities: first, mandatory rules must establish the conditions for property (real) enforcement; and, second, enforcers must enjoy a wider scope of impartiality. Private-ordering arrangements can play an effective role in providing verifiability services but only under such conditions. Moreover, the interaction between contract and property law also changes, with contract law governing the inter-party manifestation of the consents needed in what is necessarily a double-stage (private and public) property transaction. Property law institutions—that is, those dealing with all types of sequential exchange—also become the key mechanism for making truly impersonal exchange possible, this being understood as exchange in property, that is, in rem rights, the only rights whose value is independent of parties’ personal attributes. I contend that this sequential-exchange perspective is necessary for understanding the functional dependence between economic and legal rights, and also for economic analysis to illuminate the institutions of property markets. To date, most models in law and economics contemplate contractual problems and solutions. Such solutions are only suitable for personal exchange so they force market participants to rely on personal safeguards and squander the potential benefits of in rem enforcement and impersonal exchange. Moreover, this purely contractual view is behind a variety of misinterpretations of empirical findings and specific policy failures in issues related to impersonal exchange: for example, when reforms focus too narrowly on the liberalization of private contractual specialists (conveyancers, title insurers, patent lawyers, investment bankers) without properly developing market-enabling central units, such as registries and organized markets for financial derivatives. More generally, such reform policies tend to disregard the conditions of public ordering that are necessary for public agencies to perform their functions and for private or hybrid ordering to play an effective, if complementary, role. The paper explains how these elements of public ordering can be taken into account, which should allow for more exhaustive consideration of the tradeoffs involved when deciding on the level of in rem enforcement and how to implement it. The accompanying discussion with&nbsp;<a href=\"https://www.cambridge.org/core/journals/journal-of-institutional-economics/article/property-as-sequential-exchange-definition-and-language-issues/F0E4BFDF4304AD62E79C76D3B8AF8316\">Doug Allen</a>,&nbsp;<a href=\"https://www.cambridge.org/core/journals/journal-of-institutional-economics/article/property-institutions-and-the-limits-of-coase/10A0A027D6E5395CBC89007E30E05B14\">Dean Lueck</a>,&nbsp;<a href=\"https://www.cambridge.org/core/journals/journal-of-institutional-economics/article/what-approach-to-property-rights/E2E472B7FF6C8B78EF586A594200D9ED\">Claude Ménard</a>&nbsp;and&nbsp;<a href=\"https://www.cambridge.org/core/journals/journal-of-institutional-economics/article/property-as-complex-interaction/D6F1692AE1A2EFD997FAFD64CDCC4B17\">Henry Smith</a>&nbsp;clarifies and deepens the theoretical analysis.In my response (“<a href=\"https://www.cambridge.org/core/journals/journal-of-institutional-economics/article/how-should-we-model-property-thinking-with-my-critics/96BFEB0C0DF691DF9C6DB3A687A77BF9\">How Should We Model Property? Thinking with My Critics</a>”), also published at <em>JoIE</em>, I argue that, to deal with the complexity of property, we must abstract secondary elements, such as the physical dimensions of some types of assets, and focus on the interaction between transactions. This leads me to point out several methodological imperatives as to how we should best study the institutions of property markets. I reiterate that this task requires replacing the bilateral contractual conception with a sequential-exchange assumption. Not only does the sequential-exchange framework capture the main problem of property in the current environment of impersonal markets. It also provides criteria to compare private and public ordering, and to organize public solutions that enable new forms of private ordering. However, two key positions in Coase’s “Problem of Social Cost” are seen as perfectly suitable to the study of property markets, namely, considering the definition of property rights separately from transaction costs and focusing on the comparative analysis of real institutions.&nbsp;</p>\n<p><a href=\"https://joie-blog.net/article-summary-property-as-sequential-exchange-the-forgotten-limits-of-private-contract-benito-arrunada\">First posted at the <em>JoIE Blog</em></a> (June 27, 2017). &nbsp;</p>\n</html>",
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      "body": "<html>\n<p>&nbsp;To what extent did Ancient Roman institutions facilitate the free exchange of economic resources? In&nbsp;“The Institutions of Roman Markets,” I explore the palliative methods used by Roman law to enable market exchange. The paper, whose Working Paper you can download <a href=\"https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2588582\">here</a>, is forthcoming (2018) as Ch. 17 in Giuseppe Dari-Mattiacci (ed.), <em>Roman Law and Economics</em>, vol. 2, <a href=\"https://global.oup.com/academic/content/series/o/oxford-studies-in-roman-society-and-law-osrsl/?cc=es&amp;lang=en&amp;\">Oxford Studies in Roman Society and Law</a> (Thomas A. J. McGinn and Paul du Plessis, eds.), Oxford University Press, Oxford.</p>\n<h3>Personal vs. Impersonal Exchange</h3>\n<p>Trade plays a key role in economic growth and expanding into far-reaching markets increases the opportunities to trade. However, realizing these opportunities requires to trade impersonally, without being able to observe the characteristics of trading partners, which cause informational difficulties between purchasers and owners of property rights as they interact with all sorts of agents facilitating the transaction.The defining conflict here is the asymmetry in the knowledge of the true ownership of the property right being exchanged—that is, the purchaser must be guaranteed that no other claimant exists in the resource. This can lead to substantive transaction costs as the asymmetry grows. Overcoming them in turn requires sophisticated and specific institutions to reduce information asymmetries in contracting while simultaneously preserving strong property rights.</p>\n<h3>Institutions for Titling Property</h3>\n<p>Achieving both goals is straightforward when the content of private contracts (such as, for instance, previous ownership transfers or representation proxies) is easy to verify. In that case, all it requires are clear adjudication rules between owners and acquirers. Acquirers are therefore secure and do not need to worry about the authority of the seller. But owners are also protected because it is they who choose the seller. And they cannot renege from their decision because the transaction produces a verifiable consequence.Protecting third parties without damaging owners is harder when contracts remain private. Achieving both goals then requires independent registration of private contracts or property rights. Only reliable registers can ensure that owners have publicized their claims (so that acquirers can find out about them before contracting) or have consented voluntarily to a weakening of their rights with respect to innocent acquirers (so that owners cannot opportunistically renege from such consent).However, building registries is costly. Consider figure 1, which represents the social value of a resource (vertical axis) as a function of their theoretical value assuming no conflicting claims (horizontal axis) and using or not a registry for public titling. If owners are free to title their property (at a unit cost given by the intercept), they obtain an increase in value proportional to the value of their property. They will opt to title high-value properties while keeping low-value properties under privacy (therefore avoiding social loss&nbsp;<em>L</em>).Social choice of institutions is then driven by the difference between the benefit from using the registry (<em>G</em>) and whatever fixed cost may be incurred to create it. Obviously, this difference is greater when high value assets predominate in the economy and private titling is relatively less effective. This poses a bit of a puzzle for the Roman case: in Rome, there were plenty of valuable assets that were traded at long distance, and Romans knew how registries work. But they hardly relied on them.Figure 1</p>\n<h3>Where were the Roman Registries?</h3>\n<p>Arruñada indeed recounts how in the classical period of Roman law there were considerable potential gains from registries as a consequence of extensive markets, so that in terms of the figure a substantial proportion of resources lied to the right of the horizontal axis, capturing the effect of greater demand and opportunities for impersonal exchange. Evidence of a market economy in Rome abounds, e.g., in the increasing distance of trade within the Republic, the estimated 30% urbanization of Italy at the time, and the specialization of provinces in producing goods.Moreover, Romans knew how to operate registries. In fact, the Roman province of Egypt operated vast land registries that effectively registered mortgages. And Romans also kept extensive archives for the census, and used durable media to maintain records. In fact, public and private record keeping was substantial, especially among bankers whose books the courts considered unimpeachable.So why were registries, the prototypical institution for advancing impersonal exchange, not created?</p>\n<h3>Palliatives for Impersonal Exchange</h3>\n<p>Arruñada argues that registries would have been socially valuable and effective but for the fact that Romans made several palliative solutions relatively more effective by maximizing the use of available evidence and enacting reinforcing rules (i.e., in the figure, obtaining a steeper slope for the personal exchange line). In other words, whereas Rome lacked, by way of registries, a solution for impersonal exchange, it made up for in spades with robust institutions for personal exchange.In property, Romans had first relied on public declarations of ownership to provide information through intricate public ceremonies of asset exchanges known as&nbsp;<em>mancipatio</em>. Among their requirements was a period of time (a grace period of sorts) to “purge” the claims of others before exchange of assets were finalized. These ceremonies, however useful in towns and small areas, became less effective when economic development lead to far-flung trading of goods. Understandably, they eventually gave way to the private conveyance of property through&nbsp;<em>traditio</em>. Further, Roman law provided public possession as access to ownership,&nbsp;<em>usucapio</em>. Initially, undisturbed possession of capital goods acquired through good faith led to ownership after two years. Over time the Praetor enhanced the path to&nbsp;<em>usucapio</em>&nbsp;by further protecting the good faith possessor from formal claimants, so that&nbsp;<em>de facto</em>&nbsp;public ownership lead to&nbsp;<em>de jure</em>&nbsp;ownership.Seeming limitations of these palliatives is the apparent inability of the Roman state to implement real securities in the arena of credit-debtor relationships. Instead they relied on transferring ownership temporarily to the creditor (<em>fiducia</em>), but this posed serious risks to the borrower, which helps explain why they most often resorted to webs of personal sureties, especially among status equals. They were enforced through intricate social norms, some legally reinforced, that kept people to their personal obligations. In fact, real securities could have sent a negative signal: Roman culture and law regarded personal reputation as sacrosanct—so attempting to offer a security instead of your word, or even worse, no one to attest to the worth of your reputation, sent an unfavorable signal that you couldn’t be trusted.Further, whereas early Roman law could have regarded contractual agency as incompatible with the Roman ideal of deep obligation to ones actions, Praetorial edicts eased the way to agency via the family. The vesting of rights over all members (including not only slaves but also sons) of the Roman family in the&nbsp;<em>paterfamilias</em>&nbsp;offered a palliative mechanism for ensuring contractual obligations when an agent (usually a slave or a son) acted on behalf of the property owner (the father). This enabled contractual specialization by bestowing the agent the ability to enact the principal’s will. Even here legal layers of protection were put in place in the event that adverse actions of the agents might jeopardize the principal into inadvertent commitment.By using family law and social reputation (as well as formal reputational punishments via&nbsp;<em>infamia</em>&nbsp;and&nbsp;<em>ignominia</em>), Roman society offered palliatives to allow seemingly effective personal exchange without having formal institutions dedicated to impersonal exchange. Moreover, informal social norms were reinforced by a whole array of formal rules ensuring enforcement of personal obligations by several means, which originally included a self-help version of debtors’ prison that later evolved into debt bondage resulting from the debtors’ default, strict punishments and sophisticated allocations of liability. At a more general level, social norms protecting personal exchange were also reinforced by two sets of arrangements enabling the extended family to act as a legal entity: those allocating most decision rights to the&nbsp;<em>paterfamilias</em>; and those defining the family’s boundaries and, therefore, who could inherit and eventually act as its contractual agent, committing the family’s assets to meeting its obligations.</p>\n<h3>A Picture Emerges</h3>\n<p>Roman markets may have lacked the types of institutions that allow for impersonal exchange in modern economies, but they did not lack for palliative solutions. In particular, the enforcement of personal obligations relied not only on informal social norms but was also given substantial public support by formal law. Given this set of palliatives, the Romans may simply not have needed to incur the cost of formal titling institutions to enable the type of impersonal exchange characteristic of modern markets.</p>\n<p><a href=\"http://focus.barcelonagse.eu/ancient-roman-market/\">Article first published at the Barcelona GSE Focus blog</a>. <br>\n&nbsp;</p>\n</html>",
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      "body": "<html>\n<p>To what extent did Ancient Roman institutions facilitate the free exchange of economic resources? In&nbsp;“The Institutions of Roman Markets,” I explore the palliative methods used by Roman law to enable market exchange. The paper, whose Working Paper you can download <a href=\"https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2588582\">here</a>, is forthcoming (2018) as Ch. 17 in Giuseppe Dari-Mattiacci (ed.), <em>Roman Law and Economics</em>, vol. 2, <a href=\"https://global.oup.com/academic/content/series/o/oxford-studies-in-roman-society-and-law-osrsl/?cc=es&amp;lang=en&amp;\">Oxford Studies in Roman Society and Law</a> (Thomas A. J. McGinn and Paul du Plessis, eds.), Oxford University Press, Oxford.</p>\n<h3>Personal vs. Impersonal Exchange</h3>\n<p>Trade plays a key role in economic growth and expanding into far-reaching markets increases the opportunities to trade. However, realizing these opportunities requires to trade impersonally, without being able to observe the characteristics of trading partners, which cause informational difficulties between purchasers and owners of property rights as they interact with all sorts of agents facilitating the transaction.The defining conflict here is the asymmetry in the knowledge of the true ownership of the property right being exchanged—that is, the purchaser must be guaranteed that no other claimant exists in the resource. This can lead to substantive transaction costs as the asymmetry grows. Overcoming them in turn requires sophisticated and specific institutions to reduce information asymmetries in contracting while simultaneously preserving strong property rights.</p>\n<h3>Institutions for Titling Property</h3>\n<p>Achieving both goals is straightforward when the content of private contracts (such as, for instance, previous ownership transfers or representation proxies) is easy to verify. In that case, all it requires are clear adjudication rules between owners and acquirers. Acquirers are therefore secure and do not need to worry about the authority of the seller. But owners are also protected because it is they who choose the seller. And they cannot renege from their decision because the transaction produces a verifiable consequence.Protecting third parties without damaging owners is harder when contracts remain private. Achieving both goals then requires independent registration of private contracts or property rights. Only reliable registers can ensure that owners have publicized their claims (so that acquirers can find out about them before contracting) or have consented voluntarily to a weakening of their rights with respect to innocent acquirers (so that owners cannot opportunistically renege from such consent).However, building registries is costly. Consider figure 1, which represents the social value of a resource (vertical axis) as a function of their theoretical value assuming no conflicting claims (horizontal axis) and using or not a registry for public titling. If owners are free to title their property (at a unit cost given by the intercept), they obtain an increase in value proportional to the value of their property. They will opt to title high-value properties while keeping low-value properties under privacy (therefore avoiding social loss&nbsp;<em>L</em>).Social choice of institutions is then driven by the difference between the benefit from using the registry (<em>G</em>) and whatever fixed cost may be incurred to create it. Obviously, this difference is greater when high value assets predominate in the economy and private titling is relatively less effective. This poses a bit of a puzzle for the Roman case: in Rome, there were plenty of valuable assets that were traded at long distance, and Romans knew how registries work. But they hardly relied on them.</p>\n<p><br></p>\n<p>Figure 1</p>\n<h3>Where were the Roman Registries?</h3>\n<p>Arruñada indeed recounts how in the classical period of Roman law there were considerable potential gains from registries as a consequence of extensive markets, so that in terms of the figure a substantial proportion of resources lied to the right of the horizontal axis, capturing the effect of greater demand and opportunities for impersonal exchange. Evidence of a market economy in Rome abounds, e.g., in the increasing distance of trade within the Republic, the estimated 30% urbanization of Italy at the time, and the specialization of provinces in producing goods.Moreover, Romans knew how to operate registries. In fact, the Roman province of Egypt operated vast land registries that effectively registered mortgages. And Romans also kept extensive archives for the census, and used durable media to maintain records. In fact, public and private record keeping was substantial, especially among bankers whose books the courts considered unimpeachable.So why were registries, the prototypical institution for advancing impersonal exchange, not created?</p>\n<h3>Palliatives for Impersonal Exchange</h3>\n<p>Arruñada argues that registries would have been socially valuable and effective but for the fact that Romans made several palliative solutions relatively more effective by maximizing the use of available evidence and enacting reinforcing rules (i.e., in the figure, obtaining a steeper slope for the personal exchange line). In other words, whereas Rome lacked, by way of registries, a solution for impersonal exchange, it made up for in spades with robust institutions for personal exchange.In property, Romans had first relied on public declarations of ownership to provide information through intricate public ceremonies of asset exchanges known as&nbsp;<em>mancipatio</em>. Among their requirements was a period of time (a grace period of sorts) to “purge” the claims of others before exchange of assets were finalized. These ceremonies, however useful in towns and small areas, became less effective when economic development lead to far-flung trading of goods. Understandably, they eventually gave way to the private conveyance of property through&nbsp;<em>traditio</em>. Further, Roman law provided public possession as access to ownership,&nbsp;<em>usucapio</em>. Initially, undisturbed possession of capital goods acquired through good faith led to ownership after two years. Over time the Praetor enhanced the path to&nbsp;<em>usucapio</em>&nbsp;by further protecting the good faith possessor from formal claimants, so that&nbsp;<em>de facto</em>&nbsp;public ownership lead to&nbsp;<em>de jure</em>&nbsp;ownership.Seeming limitations of these palliatives is the apparent inability of the Roman state to implement real securities in the arena of credit-debtor relationships. Instead they relied on transferring ownership temporarily to the creditor (<em>fiducia</em>), but this posed serious risks to the borrower, which helps explain why they most often resorted to webs of personal sureties, especially among status equals. They were enforced through intricate social norms, some legally reinforced, that kept people to their personal obligations. In fact, real securities could have sent a negative signal: Roman culture and law regarded personal reputation as sacrosanct—so attempting to offer a security instead of your word, or even worse, no one to attest to the worth of your reputation, sent an unfavorable signal that you couldn’t be trusted.Further, whereas early Roman law could have regarded contractual agency as incompatible with the Roman ideal of deep obligation to ones actions, Praetorial edicts eased the way to agency via the family. The vesting of rights over all members (including not only slaves but also sons) of the Roman family in the&nbsp;<em>paterfamilias</em>&nbsp;offered a palliative mechanism for ensuring contractual obligations when an agent (usually a slave or a son) acted on behalf of the property owner (the father). This enabled contractual specialization by bestowing the agent the ability to enact the principal’s will. Even here legal layers of protection were put in place in the event that adverse actions of the agents might jeopardize the principal into inadvertent commitment.By using family law and social reputation (as well as formal reputational punishments via&nbsp;<em>infamia</em>&nbsp;and&nbsp;<em>ignominia</em>), Roman society offered palliatives to allow seemingly effective personal exchange without having formal institutions dedicated to impersonal exchange. Moreover, informal social norms were reinforced by a whole array of formal rules ensuring enforcement of personal obligations by several means, which originally included a self-help version of debtors’ prison that later evolved into debt bondage resulting from the debtors’ default, strict punishments and sophisticated allocations of liability. At a more general level, social norms protecting personal exchange were also reinforced by two sets of arrangements enabling the extended family to act as a legal entity: those allocating most decision rights to the&nbsp;<em>paterfamilias</em>; and those defining the family’s boundaries and, therefore, who could inherit and eventually act as its contractual agent, committing the family’s assets to meeting its obligations.</p>\n<h3>A Picture Emerges</h3>\n<p>Roman markets may have lacked the types of institutions that allow for impersonal exchange in modern economies, but they did not lack for palliative solutions. In particular, the enforcement of personal obligations relied not only on informal social norms but was also given substantial public support by formal law. 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      "body": "<html>\n<p>To what extent did Ancient Roman institutions facilitate the free exchange of economic resources? In&nbsp;“The Institutions of Roman Markets,” I explore the palliative methods used by Roman law to enable market exchange. The paper, whose Working Paper you can download <a href=\"https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2588582\">here</a>, is forthcoming (2018) as Ch. 17 in Giuseppe Dari-Mattiacci (ed.), <em>Roman Law and Economics</em>, vol. 2, <a href=\"https://global.oup.com/academic/content/series/o/oxford-studies-in-roman-society-and-law-osrsl/?cc=es&amp;lang=en&amp;\">Oxford Studies in Roman Society and Law</a> (Thomas A. J. McGinn and Paul du Plessis, eds.), Oxford University Press, Oxford.</p>\n<h3>Personal vs. Impersonal Exchange</h3>\n<p>Trade plays a key role in economic growth and expanding into far-reaching markets increases the opportunities to trade. 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In that case, all it requires are clear adjudication rules between owners and acquirers. Acquirers are therefore secure and do not need to worry about the authority of the seller. But owners are also protected because it is they who choose the seller. And they cannot renege from their decision because the transaction produces a verifiable consequence.Protecting third parties without damaging owners is harder when contracts remain private. Achieving both goals then requires independent registration of private contracts or property rights. Only reliable registers can ensure that owners have publicized their claims (so that acquirers can find out about them before contracting) or have consented voluntarily to a weakening of their rights with respect to innocent acquirers (so that owners cannot opportunistically renege from such consent).However, building registries is costly. Consider figure 1, which represents the social value of a resource (vertical axis) as a function of their theoretical value assuming no conflicting claims (horizontal axis) and using or not a registry for public titling. If owners are free to title their property (at a unit cost given by the intercept), they obtain an increase in value proportional to the value of their property. They will opt to title high-value properties while keeping low-value properties under privacy (therefore avoiding social loss&nbsp;<em>L</em>).Social choice of institutions is then driven by the difference between the benefit from using the registry (<em>G</em>) and whatever fixed cost may be incurred to create it. Obviously, this difference is greater when high value assets predominate in the economy and private titling is relatively less effective. This poses a bit of a puzzle for the Roman case: in Rome, there were plenty of valuable assets that were traded at long distance, and Romans knew how registries work. But they hardly relied on them.Figure 1</p>\n<h3>Where were the Roman Registries?</h3>\n<p>Arruñada indeed recounts how in the classical period of Roman law there were considerable potential gains from registries as a consequence of extensive markets, so that in terms of the figure a substantial proportion of resources lied to the right of the horizontal axis, capturing the effect of greater demand and opportunities for impersonal exchange. Evidence of a market economy in Rome abounds, e.g., in the increasing distance of trade within the Republic, the estimated 30% urbanization of Italy at the time, and the specialization of provinces in producing goods.Moreover, Romans knew how to operate registries. In fact, the Roman province of Egypt operated vast land registries that effectively registered mortgages. And Romans also kept extensive archives for the census, and used durable media to maintain records. In fact, public and private record keeping was substantial, especially among bankers whose books the courts considered unimpeachable.So why were registries, the prototypical institution for advancing impersonal exchange, not created?</p>\n<h3>Palliatives for Impersonal Exchange</h3>\n<p>Arruñada argues that registries would have been socially valuable and effective but for the fact that Romans made several palliative solutions relatively more effective by maximizing the use of available evidence and enacting reinforcing rules (i.e., in the figure, obtaining a steeper slope for the personal exchange line). In other words, whereas Rome lacked, by way of registries, a solution for impersonal exchange, it made up for in spades with robust institutions for personal exchange.In property, Romans had first relied on public declarations of ownership to provide information through intricate public ceremonies of asset exchanges known as&nbsp;<em>mancipatio</em>. Among their requirements was a period of time (a grace period of sorts) to “purge” the claims of others before exchange of assets were finalized. These ceremonies, however useful in towns and small areas, became less effective when economic development lead to far-flung trading of goods. Understandably, they eventually gave way to the private conveyance of property through&nbsp;<em>traditio</em>. Further, Roman law provided public possession as access to ownership,&nbsp;<em>usucapio</em>. Initially, undisturbed possession of capital goods acquired through good faith led to ownership after two years. Over time the Praetor enhanced the path to&nbsp;<em>usucapio</em>&nbsp;by further protecting the good faith possessor from formal claimants, so that&nbsp;<em>de facto</em>&nbsp;public ownership lead to&nbsp;<em>de jure</em>&nbsp;ownership.Seeming limitations of these palliatives is the apparent inability of the Roman state to implement real securities in the arena of credit-debtor relationships. Instead they relied on transferring ownership temporarily to the creditor (<em>fiducia</em>), but this posed serious risks to the borrower, which helps explain why they most often resorted to webs of personal sureties, especially among status equals. They were enforced through intricate social norms, some legally reinforced, that kept people to their personal obligations. In fact, real securities could have sent a negative signal: Roman culture and law regarded personal reputation as sacrosanct—so attempting to offer a security instead of your word, or even worse, no one to attest to the worth of your reputation, sent an unfavorable signal that you couldn’t be trusted.Further, whereas early Roman law could have regarded contractual agency as incompatible with the Roman ideal of deep obligation to ones actions, Praetorial edicts eased the way to agency via the family. The vesting of rights over all members (including not only slaves but also sons) of the Roman family in the&nbsp;<em>paterfamilias</em>&nbsp;offered a palliative mechanism for ensuring contractual obligations when an agent (usually a slave or a son) acted on behalf of the property owner (the father). This enabled contractual specialization by bestowing the agent the ability to enact the principal’s will. Even here legal layers of protection were put in place in the event that adverse actions of the agents might jeopardize the principal into inadvertent commitment.By using family law and social reputation (as well as formal reputational punishments via&nbsp;<em>infamia</em>&nbsp;and&nbsp;<em>ignominia</em>), Roman society offered palliatives to allow seemingly effective personal exchange without having formal institutions dedicated to impersonal exchange. Moreover, informal social norms were reinforced by a whole array of formal rules ensuring enforcement of personal obligations by several means, which originally included a self-help version of debtors’ prison that later evolved into debt bondage resulting from the debtors’ default, strict punishments and sophisticated allocations of liability. At a more general level, social norms protecting personal exchange were also reinforced by two sets of arrangements enabling the extended family to act as a legal entity: those allocating most decision rights to the&nbsp;<em>paterfamilias</em>; and those defining the family’s boundaries and, therefore, who could inherit and eventually act as its contractual agent, committing the family’s assets to meeting its obligations.</p>\n<h3>A Picture Emerges</h3>\n<p>Roman markets may have lacked the types of institutions that allow for impersonal exchange in modern economies, but they did not lack for palliative solutions. In particular, the enforcement of personal obligations relied not only on informal social norms but was also given substantial public support by formal law. Given this set of palliatives, the Romans may simply not have needed to incur the cost of formal titling institutions to enable the type of impersonal exchange characteristic of modern markets.<a href=\"http://focus.barcelonagse.eu/ancient-roman-market/\">Article first published at Barcelona GSE Focus blog</a>. <br>\n&nbsp;</p>\n</html>",
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      "body": "<html>\n<p>During the economic crisis in countries that had experienced housing bubbles, from the US to Spain, thousands of homeowners faced foreclosures. With such a large number of home evictions, civil organizations took action against banks, which were blamed for the crisis, and judges often ruled in favor of homeowners. However, would the outcomes have been any better if the judicial rulings had instead been aligned with banks’ preferences?In “<a href=\"https://papers.ssrn.com/sol3/papers.cfm?abstract_id=983557\">Fragile Markets: An Experiment on Judicial Independence</a>,”&nbsp;a paper I coauthored with <a href=\"https://www.unibo.it/sitoweb/marco.casari/en\">Marco Casari</a>, published at <em>Journal of Economic Behavior and Organization</em> (2016), we use an experimental framework to explore how different institutions that allocate enforcement rights affect credit transactions.</p>\n<h3>Lenders, borrowers, and judges</h3>\n<p>Credit typically involves two transacting parties (lenders and borrowers) and a third-party enforcer (judges). Lenders’ decisions concern whether or not to provide loans, while borrowers decide whether to repay the loans. If borrowers opt for default, the enforcer can intervene to force the borrower to pay. When judges fail to guarantee a sufficiently high enforcement rate, lenders will refuse future loans and the credit market will collapse. As a result, enforcement rules determine the very existence of such fragile markets.</p>\n<h3>An experiment to isolate enforcement institutions</h3>\n<p>The experiment has the following structure. Fifteen participants take part in a session. At the beginning of the session, participants are randomly placed in groups of three, where one member is assigned the role of lender, another of borrower, and another of judge. Participants play the same game for several rounds, with new groups formed at random after each round, but retain the same role for the entire session.In every group and at every round, each lender decides to lend or not; each borrower decides to repay or to default; and, if the borrower defaults, the corresponding judge can enforce repayment. If the lender does not lend, the lender receives 60 tokens and the borrower 16. If there is a loan and there is repayment, the lender receives 67 and the borrower 33. If the lender provides the loan and the borrower does not pay back, both lender and borrower receive 50 tokens. Note that if no transaction takes place, a lender earns more than three times as much as a borrower does. In contrast, if a transaction does take place, inequality is reduced as, after repayment, a borrower holds about half the wealth of a lender, and after a default, a borrower earns the same as a lender. Thereby, credit generates a surplus and equalizes income distribution.Judges are paid according to three institutional arrangements:</p>\n<ul>\n  <li>Lender constituency</li>\n  <li>Borrower constituency</li>\n  <li>GDP</li>\n</ul>\n<p>In the&nbsp;<em>GDP</em>&nbsp;treatment, judges are paid in proportion to the aggregate income of the economy. In contrast, in the&nbsp;<em>Lender constituency</em>&nbsp;and&nbsp;<em>Borrower constituency</em>&nbsp;treatments, judges are paid according to how close they are to the average preferences of the corresponding voting constituency regarding the enforcement rules. For instance, in the&nbsp;<em>Borrower Constituency</em>, if the number of judges enforcing equals the number of lenders also favoring enforcement, judges earn 50 tokens. For every person in disagreement, judges’ earnings are lowered by 5 tokens.The timing of the game is as follows:&nbsp;Lenders are the first movers. After them, each transacting party votes on whether or not they would like judges to enforce repayment. Next, borrowers decide on repayment, and judges decide on enforcement. Finally, each individual observes his own payoff, each group learns the group payoff, and all the participants observe the social history. This social history includes the number of loans and defaults, the number of judges that enforced, the votes of lenders and borrowers, and the average earnings of borrowers, lenders and judges.</p>\n<h3>The Borrowers’ Paradox</h3>\n<p>In the experiment, the market for loans tends to flourish when enforcement is in the hands of lenders or of a third party with an interest in the aggregate surplus, but it dries up when enforcement is controlled by borrowers. This result is a paradox because when borrowers are in control, their earnings are lower than when lenders are in control, both in absolute and in relative terms.</p>\n<p>Figure. Number of loans over time</p>\n<p>Moreover, when enforcement depends exclusively on lenders, the market maximizes the total surplus. While in the&nbsp;<em>Lender constituency</em>&nbsp;subjects reach near 100% of the potential surplus and in the&nbsp;<em>GDP</em>&nbsp;treatment they reach 69%, in the&nbsp;<em>Borrower constituency</em>&nbsp;they only reach 10%, making the whole society poorer and wealth distribution more unequal.Arruñada and Casari focus on two possible conjectures that could explain the Borrowers’ Paradox: participants’ pro-social preferences, or their difficulty in understanding market interactions.Pro-social preferences could explain the Borrower’s Paradox because borrowers and judges may want a redistribution of the surplus in favor of those most in need. For this to be an explanation, the interpretation of pro-sociality must be of a type that requires immediate action during the round without looking any further. Before the market experiment, the authors elicited participants’ pro-sociality level. They report that those with strong preferences for equality or for the group achieving a high total surplus were less likely to vote for enforcement under the&nbsp;<em>Borrower constituency</em>. Hence, pro-sociality may well be the underlying cause of the Borrowers’ Paradox.To test this hypothesis, the authors ran a modified version of the game in which, instead of dealing with other people, judges dealt with robots that do not receive any payment. If pro-sociality was at stake, the difference between the&nbsp;<em>Borrower constituency</em>&nbsp;and the&nbsp;<em>GDP</em>&nbsp;treatment should vanish when the subjects face robots. Yet, even in this modified game,&nbsp;<em>Borrower constituency</em>&nbsp;performed worst.In fact, the explanation that is most in line with the empirical data is bounded rationality: at the individual level, participants’ choices are linked to the cognitive reasoning they exhibited in the task performed at the beginning of the session.&nbsp;If those who—through their votes—control enforcement have a poor understanding of the systemic consequences of their decisions, they trigger insufficient enforcement, and hence waste exchange opportunities.</p>\n<h3>Fragile impersonal credit markets</h3>\n<p>The experimental evidence provided by Arruñada and Casari suggests that the functioning of impersonal markets is fragile because some institutions pose problems that are too difficult for agents, and their poor understanding of the long-term consequences of their decisions leads them to take decisions against their own interests.In the simple laboratory situation, agents may not have been fully aware of the constraints posed by the functioning of markets. This sometimes backfired and led them to unwelcome outcomes. In the field, many other considerations may play a role, such as income shocks and banks’ misbehavior.One lesson from this study is that exchange opportunities depend on the political structure and the functioning of the judicial system. In particular, it shows that collocating information and decision rights promotes growth and equality by reducing the cognitive limitations that might otherwise induce agents to damage themselves by taking wrong choices about enforcement.<a href=\"http://focus.barcelonagse.eu/fragility-credit-markets/\">Article first published at Barcelona GSE Focus blog</a>.<br>\n&nbsp;</p>\n</html>",
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      "body": "<html>\n<h2><em>The law-and-economics of property throws doubts on the prospects of blockchain for transacting durable high-value assets</em></h2>\n<p>You are free to sell your house contractually through a deed or, perhaps, a blockchain even if it is partly owned by your spouse or there is a mortgage on it. However, both your spouse’s ownership and the mortgage would survive intact. Therefore, in fact you are not transferring the house but a mere personal claim on yourself: you become liable to deliver the house to the buyer. &nbsp;</p>\n<p>This distinction helps avoid the tendency of blockchain enthusiasts to overestimate the power of private ordering and to minimize that of trusted public intermediaries. Market participants can trade personal claims easily under private ordering arrangements, but trading property rights requires a minimum of public ordering. The reason is simple: given that contracts affect the interests of third parties who are strangers to the contract, transfers require the presence of a neutral enforcer, who must be independent not only of parties to a given transaction but also of all holders of property rights on the type of asset being traded in that market. Otherwise, the market collapses because of possible hidden burdens. &nbsp;</p>\n<p>This constrains the possibilities of applying blockchain to transactions in real assets, which becomes less viable the more we move along the contract-to-property (that is, personal-to-real) continuum. Observe first that, in line with the incentives of all participants, contractual parties in all property systems are free to choose their conveyancers (mainly, lawyers and notaries public), the agents active in the contractual stage of the transfer process. By contrast, third-party protection leads the law to universally restrict parties’ freedom to choose the office that records their titles or the registrar that preserves and reviews their rights, as well as the judge who presides over judicial procedures to settle property rights (quiet title suits and equivalent purging solutions). &nbsp;</p>\n<p>Consequently, blockchain should find it easier to expand into notarization and data archiving than to replace centralized property registries. Lawyers and notaries used to enjoy an advantage in identifying parties and, more clearly, in ascertaining their legal capacity and serving as providers of settlement, closing and escrow services for the parties. Blockchain now enables the development of effective services to prove to other parties that you are who you say (authentication) and you have the required permissions (authorization). Likewise, with respect to settlement, trade implemented through a blockchain can now provide conditioned simultaneous enforcement by using the principle of “atomicity”, which, in essence, ensures that both parties fulfill their promises at the same time.&nbsp;</p>\n<p>The potential application of blockchain to property registries is more limited because such registries safeguard the interests of third parties who are strangers to the contractual transaction. They are not standard databases or “ledgers” because the key element in registries is legal: they mainly contain not magnitudes (values) but the legal evidence prioritizing claims (under a recordation-of-deeds system) or defining rights (under registration-of-rights).&nbsp;</p>\n<p>Recorders of deeds, such as those in France or the USA, merely time-stamp and archive documents containing the (aptly-named) “chain of title deeds” and are therefore closer to a simple ledger. But the date of entry at the registry holds crucial legal consequences, allowing the record to provide key judicial evidence on the priority of legal claims, therefore in fact defining who holds a property right and who holds a mere personal claim. It is understandable that the <a href=\"http://cookrecorder.com/wp-content/uploads/2016/11/Final-Report-CCRD-Blockchain-Pilot-Program-for-web.pdf\">official report </a>&nbsp;on the <a href=\"https://medium.com/@RagnarLifthrasir/permissionless-real-estate-title-transfers-on-the-bitcoin-blockchain-in-the-usa-5d9c39139292\">pilot project</a> carried &nbsp;out in Cook County, IL, concludes that blockchain might be used for conveyancing and lodging, but retaining the existing legal framework according to which “the county government record is the only official record”, seemingly far away from unpermissioned P2P solutions. &nbsp;</p>\n<p>Registers of rights (often called “title systems”), such as the German <em>Grundbuch</em> or the Torrens system of title by registration operating in Australia are even more explicit: they not only date and keep the documents or deeds reflecting the transactions that the contractual parties agree to, but also verify, as a necessary condition for entry into the register, that the intended transactions respect all other rightholders’ rights on the specific asset. This allows them to provide at any moment a legal “balance sheet”, directly establishing not mere claims but the rights on a specific property. &nbsp;</p>\n<p>The impact of blockchain for property registries will therefore differ between these two types of register. It is conceivable that a deed recordation system might be replaceable with an automatic system of dating private contracts and preserving their contents, providing that parties to private contracts cannot manipulate these two functions once they sign their contract. However, even in that case, some public authority would still be establishing the rules of evidence: in particular, setting the value of the blockchain as a source of evidence for property adjudication. To produce property effects, all parties must be obliged to express their will through the blockchain. Moreover, this authority must trust those designing, putting in place and — to some extent — governing or at least affecting the decentralized government of the blockchain system. (The case of company registries is similar, to the extent that most of them are closer to recordation than to registration systems). &nbsp;</p>\n<p>In comparison with property recordation and company registries, property registries of rights are likely to be less affected by blockchain, because registration review cannot be easily exercised by an automatic system for valuable durable assets, for which it is efficient to define multiple rights. The huge difficulties already found by minimally complex “smart” contracts at the level of pure contractual claims would be compounded for adjudicating on property transactions, which is what a registration decision in fact amounts to. It is revealing here the lack of impact that pioneer blockchain projects are having on registration. Most of them merely use the blockchain as a backup, and the ambitious Swedish <a href=\"https://chromaway.com/papers/Blockchain_Landregistry_Report_2017.pdf\">White Paper</a> in fact proposes a system of electronic conveyancing, keeping intact the active central role of the land register. Therefore, it even seems much less less revolutionary than, for instance, the <a href=\"https://forms.landonline.govt.nz/about-landonline/introduction.asp\">Landonline</a> system which has been working in New Zealand since 2006, in which it is lawyers who modify the register. &nbsp;</p>\n<p>Moreover, for high-value property, in addition to the costs that such standardization would cause, the decentralized decision-making at the heart of blockchain faces another serious barrier, that of individuals’ reluctance to take full responsibility for their decisions. The universal nature of property requires the same rules of evidence to be applied to all property rightholders. In a hypothetical, fully-decentralized, truly P2P property system, all individuals would therefore have to grant or deny their consent to all sorts of intended transactions which might affect their rights. They would therefore become the only custodians not only of their cryptographic keys but also of the legal integrity of their rights. As in many other areas, individual freedom is purchased with individual responsibility. To the extent that not all individuals are always willing to pay such a price, centralized trusted intermediaries are likely to prevail over decentralized systems. &nbsp;</p>\n<h2><em>Source:&nbsp;</em></h2>\n<p>Based on the author’s paper “<a href=\"https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2903857\">Blockchain’s Struggle to Deliver Impersonal Exchange</a>.” &nbsp;</p>\n</html>",
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