1. Law and economics: game theory N.J. Philipsen Associate Professor of Law and Economics Faculty of Law, Research Institute METRO Shandong University, Jinan, May 2009

2. Overview What is law and economics? –methodology –history –importance of L&E in US, Europe and China The use of game theory in L&E –economic analysis of contract law –economic analysis of procedural law –property rights, competition law, etc.

3. What is law and economics? Methodology –using economic concepts to study the law –influence of the law on people’s behaviour efficiency (Pareto efficiency, Kaldor-Hicks efficiency) maximizing utility, maximizing social welfare price theory (supply-demand): sanctions as prices statistical research game theory –positive versus normative analysis –efficiency versus distribution –applied to many areas of the law

4. What is law and economics? History and importance of L&E –“Old” law and economics ex: competition law, regulation of sectors, tax issues –“New” law and economics ex: contracts, torts, criminal law, family law developments in the US since 1960s famous books, journals and scholars: –Richard Posner, Steven Shavell, Guido Calabresi, Nobel prize winners –Ronald Coase, Gary Becker, James Buchanan recent developments in Europe and China

5. Economic theory of contract Why do we need contract law? –what promises should be enforced by law? –contract law should enable people to convert games with inefficient (noncooperative) solutions into games with efficient (cooperative) solutions –what should be the remedy for breaking enforceable promises? restitution negative damages (reliance damages) positive damages (expectation damages)

6. Example: agency game I The first player (principal) decides whether to put a valuable asset, which is worth 100, under the control of the second player –for example: investor in corporation Player 2 (agent) decides whether to cooperate or appropriate (that is, take the money and leave) Cooperation is productive: 100 in profits –for example: profit from investment Profits are split evenly among the parties: 50 each Appropriation is redistributive => question: do we need contract law?

7. Agency game without contract Second player (agent) First player (principal) CooperateAppropriate Invest50 ; 50-100 ; 100 Don’t invest 0 ; 0

8. Agency game with contract Second player (agent) First player (principal) PerformBreach Invest50 ; 5050 ; -50 Don’t invest 0 ; 0

9. Example: Agency game II A widow (W) wants to invest €100,000 in stocks and shares for one year An investment consultant (IC) claims that in that one year he can produce a return on that investment of 10%, so €10,000 Parties would split the €10,000 profits => € 5,000 each Does W lend the money to IC? –game theory: non-symmetrical game –compare situation with and without contract law (incl. some system of damages)

10. Example: agency game III: optimal performance and breach Extension of agency game I: now performing is sometimes more efficient than breaching, and breaching is sometimes more efficient than performing Promising precedes performing; the gap in time may create uncertainties over the cost of performing –example: the second player does not know whether urgent business will arise after giving the promise (opportunity costs)

11. Agency game with contract and variable cooperation costs Second player First player Perform (costs 0) Perform (c 150) Breach Invest50 ; 5050; -10050; -50 Don’t invest 0 ; 0

12. Optimal reliance Reliance: investments by the principal induced by the promise –this makes breach by the agent more costly to the principal the probability of agent performing the promise has an effect on optimal reliance (low or high) by the principal the law should not compensate too much reliance (overreliance) => foreseeability

13. Agency game with variable reliance and no enforceable contract Second player First player CooperateAppropriate Invest & low reliance 50 ; 50-100 ; 100 Invest & high reliance 60 ; 50-200 ; 100

14. Agency game variable reliance and no enforceable contract Expected net payoff from low reliance p (50 + 50) + (1-p) (-100 + 100) Expected net payoff from high reliance p (60 + 50) + (1-p) (-200 + 100) Calculation of ‘tipping point’: p* = 0,91 high reliance is optimal if the probability of performance exceeds 91 percent

15. Agency game: variable reliance, enforceable contract, and simple expectation damages Second player First player PerformBreach Invest & low reliance 50 ; 5050 ; -50 Invest & high reliance 60 ; 5060 ; -160

16. Agency game: variable reliance, enforceable contract, and perfect expectation damages Second player First player PerformBreach Invest & low reliance 50 ; 5050 ; -50 Invest & high reliance 60 ; 50-50 ; -50

17. Purposes of contract law according to economic theory (I) 1.to enable people to convert games with inefficient solutions into games with efficient solutions 2.to encourage the efficient disclosure of information within the contractual relationship 3. to secure optimal commitment to performing

18. Purposes of contract law according to economic theory (II) 4. to secure optimal reliance 5. to minimize transaction costs of negotiating contracts by supplying efficient default terms and regulations 6. to foster long-term relationships (“repeated games”)

19. Economics of procedural law Procedural law: involves legal disputes Questions that game theory can address include: –why do people sue (file a complaint)? –what is the expected value of a legal claim? –what is the impact of changes in the probability of winning/losing the case and changes in the lawyer’s fee, court costs, etc?

20. Example 1: settling or rejecting offer? a company causes a consumer to suffer harm of 100 consumer offers to settle the dispute for 50 if the company refuses, it will face a lawsuit that will cost it 10 to litigate if it loses at trial, the business will have to pay the consumer 100 => what is the lowest probability of the consumer winning at which the business expects to gain by settling the case?

21. injurysueexchange inf. bargaintrialappeal file yes lose no injury don’t file complaint settle win lose Ex. 2: Expected value of a legal claim