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Even if you haven't watched the show or seen the memes taking over the internet - chances are you've probably heard of Squid Game.

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Is for sure not the intend

The vanquished lost his cause and, if he were unlucky, his life. People called these combats trials by battle.2 2 To modern observers trial by battle is an icon of medieval backwardness. Montesquieu called it ‘‘monstrous’’ (1748 [1989]: 563). The institution’s barbarity seems equaled only by its senselessness. As Richard Posner put it, ‘‘trial by battle’’ is one of those ‘‘legal practices that no one defends any more’’ (1988: 858). 3 Almost no one. This paper defends trial by battle. It examines trial by battle in England as judges used it to decide property disputes from the Norman Conquest to 1179.3 I argue that judicial combat was sensible and effective. In a feudal world where high transaction costs confounded the Coase theorem, trial by battle allocated disputed property rights efficiently. 4 Trials by battle were literal fights for property rights. I model these trials as all-pay auctions. Disputants ‘‘bid’’ for contested property by hiring champions who fought on their behalf. Better champions were more expensive and more likely to defeat their adversaries in combat. Since willingness to pay for champions was correlated with how much disputants valued contested land, trial by combat tended to allocate such land to the higher-valuing disputant. 5 This ‘‘auction’’ permitted rent seeking. But it encouraged less rent seeking than the obvious alternative: a first-price ascending-bid auction. Further, unlike these auctions, trial by battle converted part of its social cost into social benefit: judicial combats entertained medieval spectators. 6 My analysis explains how a seemingly irrational legal institution—trial by battle—is consistent with rational, maximizing behavior. It illuminates why this apparently inefficient institution played a central role in England’s legal system for so long. Most important, it demonstrates how societies can use legal arrangements to substitute for the Coase theorem where high transaction costs preclude trade. Economists have said nothing about trial by battle. 7 4 Schwartz, Baxter, and Ryan (1984), Posner (1996), and Kingston and Wright (2009) discuss duels of honor.5 These are distinct from and, except for the fact that they involve two combatants, unrelated to judicial duels, which I consider. Duels of honor were private, unsanctioned, and often legally prohibited battles waged to redress insults or transgressions of honorific norms. They weren’t trials used to decide property rights in legal disputes. Trial by battle is also distinct from and unrelated to battles between enemy groups fought by a single representative from each side. The former was a judicial procedure for allocating disputed land. The latter was a diplomatic procedure for reducing war’s cost. This paper is most closely connected to two strands of literature. The 8 first uses rational choice theory to understand unusual legal institutions. Friedman (1979) was among the first contributors to this literature. He considers the economics of legal institutions that stateless people in medieval Iceland used to create social order. Posner (1980) explores the economics of legal systems in primitive societies. Leeson (2007a, 2009a, 2009b) examines the economics of eighteenth-century pirates’ legal institutions. He also considers the legal arrangements that warring hostiles created along the sixteenth-century Anglo-Scottish border (Leeson 2009c).6 Most recently, Leeson (2010) analyzes the law and economics of medieval judicial ordeals. The second strand of related literature explores the economics of Euro- 9 pean legal traditions. Hayek (1960), La Porta et al. (1998), Glaeser and Shleifer (2002), and Djankov et al. (2003) consider how legal institutions diverged in England and continental Europe in the Middle Ages and how these institutions influenced property rights in those places. I consider how a key legal institution found throughout Europe before that divergence influenced property rights in England: trial by battle.

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The Norman Conquest introduced trial by battle (duellum) to England.7 Until 1179 it was England’s primary trial procedure for deciding land ownership disputes.8 During this period one person challenged another person’s claim to a piece of land by initiating an action called a ‘‘writ of right.’’9 The plaintiff in such an action was called the ‘‘demandant.’’ The defendant was called the ‘‘tenant.’’ The demandant initiated his challenge by requesting the crown to issue an order compelling the tenant to appear before a court to defend his property.10 11 A colorable claim was necessary for the demandant’s challenge to make it to trial. There was no guarantee the crown would fulfill the demandant’s request for a writ. It therefore behooved him to supply some evidence of his claim’s plausibility. For instance, a land charter documenting the demandant’s connection to the contested property might be helpful. Similarly, the court could reject the demandant’s claim if he failed to produce a reliable witness who would swear to his connection to the disputed land. The court required the tenant to produce a witness for this purpose too. These ‘‘screens’’ helped prevent some bogus property challenges from making it to trial. But they did so very imperfectly. 12 Ideally the legal system would’ve liked to assign disputed property rights to those rights’ ‘‘true’’ owners. Unfortunately for eleventh- and twelfthcentury judges, evidence that could help them do this was in short supply. Judges frequently faced a situation in which the evidence at their disposal amounted to disputants’ and their witnesses’ (and perhaps their charters’) competing, plausible claims. Without helpful evidence, in many cases judges couldn’t identify the disputed land’s true owner. In these cases judges pretended to divine that owner’s identity instead. Their method of doing so was judicial combat. Trial by battle’s ostensible justification was as simple as it was absurd: God favored the rightful disputant’s cause. So God would favor that disputant’s cause in a physical fight. Despite its supposedly superstitious underpinnings, trial by battle had 13 secular origins (Russell 1980a: 112). Further, unlike unilateral ordeals, superstition wasn’t important to trial by battle’s operation or ability to produce socially desirable results (Bartlett 1986; Leeson 2010). As I describe below, judicial combat’s productivity rested firmly in earthly logic. Trial by battle’s basic form in property cases in the eleventh and twelfth 14 centuries remained similar in the thirteenth century. Our detailed descriptions of some of this form’s aspects are from still later trials. However, their general features are applicable to trial by battle’s heyday. The demandant pled before the court by offering to prove his right to 15 the disputed land on his champion’s body. Consider the demandant’s plea in a case from 1198 (Russell 1959, 243): Matthew, the son of William, sought against Ralph of Wicherle and Beatrice, his wife, a wood and other land at Ellenthorpe as the right and dowry of his wife, Emma, whereof the said Matthew was seised as of right and dowry in the time of King Henry by taking the issues thereof from wood, timber and pasturing pigs to the value of 5/4d; and this he offered to prove against him by his freeman Utling, who offered to prove this against him as the court should adjudge as of his sight, or by another if any ill should befall him. The tenant pled by denying the demandant’s claim and offering his own 16 champion as proof: Ralph and Beatrice came and denied the right and seisin of the said Matthew by a certain freeman of theirs, Hugh of Floketon, who offered to deny this by his body, or by another. If the court couldn’t establish the rightful disputant’s identity, it 17 adjudged that there should be a battle between [their champions]. The pledges of Hugh (defending) were Ralph his lord and Robert, the son of Payn. The pledges of Utling were Matthew, the son of William, and Robert of Cove. A day was given to them on the coming of the justices into those parts. 18 In theory the law required the demandant’s champion to be a witness to his right to the disputed land. The champion had to claim that he observed the demandant’s ancestor’s seisin. Alternatively he could claim that his deceased father observed it and instructed him to defend the demandant’s right. 19 In practice the law permitted demandants to hire champions. A tenant could object to the demandant’s champion on the grounds that he was hired. But ‘‘professional champions were so frequently used that the courts paid no attention to this particular objection.’’ So tenants didn’t bother. ‘‘There appears to be no recorded case relating to land where one of the parties objected to the other’s champion solely on the ground that he was hired for the occasion’’ (Russell 1959, 257).11 In 1275 judges dropped the charade. The law abandoned the requirement that demandant champions be witnesses. 20 The law never even theoretically restricted who tenants could use as champions. Unlike demandants, tenants could also choose to fight in person. Though they almost never did. Later law eliminated this choice. It required tenants to use champions too. 21 After the disputants pled, the judge asked the champions if they were prepared to wager battle. To show they were, the champions passed him a glove with a penny in each of its fingers. The judge then gave a day when the champions would fight. Two men from each disputant’s side pledged to attend. 22 On the appointed day the champions came to the designated arena and swore oaths affirming their principal’s rightness in the cause. They also promised they hadn’t concealed charms on their bodies or resorted to sorcery. Eleventh- and twelfth-century arenas were makeshift. Later ones were more elaborate and specially constructed for the purpose. Sixteenth-century records describe the ‘‘lists’’ as (Russell 1983b, 126): an even and level piece of ground, set out square, 60 feet on each side due east, west, north and south, and a place or seat for the justices of the bench was made without and above the lists, and covered with furniture of the same bench in Westminster Hall, and a bar made there for serjeants-at-law. Before battle began the presiding justices made an announcement forbid- 23 ding spectator interference. The justices’ injunction before a seventeenthcentury combat conjures images of a deadly tennis match (Russell 1983b, 126): The justices command, in the Queen Majesty’s name, that no person of what estate, degree, or condition that he be, being present, be so hardy to give any token or sign, by countenance, speech, or language, either to the prover of the defender, whereby the one of them may take advantage of the other; and no person remove, but will keep his place; and that every person or persons keep their staves and their weapons to themselves; and suffer neither the said prover nor defender to take any of their weapons or any other thing, that may stand either to the said prover or defender any avail, upon pain of forfeiture of lands, tenements, goods, chattels, and imprisonment of their bodies, and making fine and ransom at the Queen’s pleasure.12 The demandant’s champion could win trial by battle in two ways: killing 24 his adversary or forcing him to submit. A champion submitted to his opponent by uttering ‘‘craven.’’ The tenant’s champion could win in a third way: pushing a stalemate until nightfall. Battle began before noon. Justices adjudged the tenant’s champion victorious if he remained standing when the stars appeared. The victorious champion won the contested property right for his prin- 25 cipal. The presiding judges concluded the trial by ordering the disputed land to his principal’s possession and announcing his principal’s good title publicly (Russell 1983b, 127): The King to the sheriff, greetings. I command you that, without delay, you give possession to X of [description of land], concerning which there was a suit between him and Y in my court; because such land is adjudged to him in my court by battle.13 Champions’ post-trial fate depended. If both survived, the winner 26 enjoyed the glory of victory and an improvement in his reputation as a hired thug. The loser was less fortunate. He paid a £3 fine for perjury and ‘‘lost his law’’: the judges declared him infamous. He could never again bear witness in another’s legal dispute (Russell 1980a, 116, 123; Lea 1866, 122).14 3.1. Sticky Property Rights 27 When inadequate evidence prevented medieval judges from assigning disputed property rights to their true owners, they attempted to do the next-best thing they could do: allocate disputed property rights to their higher-valuing users. If transaction costs are zero, legal systems can rely on private bargaining to allocate disputed property rights efficiently (Coase 1960). Since transaction costs aren’t zero, how judges allocate disputed property rights matters. How much it matters varies in proportion to transaction costs’ height. If transaction costs are low, it’s relatively unimportant who judges assign disputed property rights to: transaction costs typically permit exchange to move rights to persons with more valuable uses for them.15 If transaction costs are high, it’s very important who judges assign disputed property rights to: transaction costs typically preclude Coasean exchange. 28 High transaction costs make property rights ‘‘sticky.’’ They prevent markets from reshuffling rights to higher-valuing users. When rights are sticky, if judges get initial allocations ‘‘wrong,’’ disputed property rights get stuck in lowervaluing users’ hands. Thus the higher transaction costs are, the more concern a legal system interested in efficiency will show for getting initial allocations ‘‘right.’’ 29 Land rights in Norman England were near the extreme end of the transaction-cost-of-trade spectrum. They were sticky. Anglo-Norman legal institutions therefore showed great concern for assigning disputed property rights to the higher-valuing user.16 Trial by battle was that concern’s result.

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The feudal system made Anglo-Norman land rights sticky. 30 17 That system created a chain of lord-tenant relationships extending downward to the lowliest tenant who held his tenement of some lord, but of whom no lowlier tenant held of him, and extending upward to a baron or great lord, a tenant-in-chief who held of the king. The chain of land holders that constituted feudal property arrangements 31 created third parties with direct interests in tenants’ land-related decisions. Those decisions threatened to impose large externalities on them. Among the most important such decisions were those relating to land’s alienation. Alienation had two forms: substitution and subinfeudation. Substitu- 32 tion replaced a link in the feudal chain. Subinfeudation created a new link it.18 A tenant who substituted his land sold his spot in the feudal chain to 33 someone else. That buyer purchased the land rights that the tenant previously enjoyed—the lord’s protection, the ability to support himself by the land, and so on. He held of the tenant’s former lord. The buyer also purchased the obligations of performing the services of holding that land the tenant previously had—knight’s fees (or service), work, produce, and the duty to pay other feudal incidents, such as ‘‘aids’’ and ‘‘relief.’’ A tenant who subinfeudated his land sold some portion of his tenement to a buyer but remained a tenant of his lord. This made him the buyer’s lord and the buyer his lord’s sub-tenant. The third parties with the strongest interest in land alienations were the 34 alienor’s heirs—the would-be successors of his holding—and his immediate lord. Subinfeudation threatened these individuals’ interests in alienated property. A tenant might subinfeudate his land for an up-front payment and small service from the buyer. When he died, all his heir was entitled to was the small service his buyer owed. Further, that service might be the performance of some duty the subin- 35 feudator owed as a service to his lord. The subinfeudator’s concern was the buyer’s ability to make the up-front payment rather than his ability to perform the service. However, since the buyer’s failure to perform for the tenant could affect the tenant’s ability to meet the service he owed his lord, subinfeudation could injure the lord’s interest. 36 Subinfeudation could also injure the lord’s interest by precluding his claim to escheat. If a tenant died and no heir was forthcoming, or if the tenant committed a felony, or failed to appear in his lord’s court, his property fell to his lord. By inserting a tenant below him through subinfeudation, the subinfeudator could enjoy this right instead. 37 Substitution posed similar problems. If a tenant substituted his holding, his heirs’ interest in that land was extinguished. Land he sold was land his heir couldn’t inherit. If a tenant sold his holding to a less reliable or less competent person, his lord suffered. The lord became less likely to receive the service owed him attached to that holding. An old tenant who sold his property to a young person also damaged his lord, who would now have to wait longer to enjoy escheat. 38 If a tenant granted his property to a religious house, the injury his lord suffered was still greater. Such grants relieved the new holder, such as a church or monastery, of the obligation to render the services that the former tenant owed his lord. Churches and monasteries usually held land in alms. The only services they were obligated to provide were spiritual ones, typically prayers for the granting tenant and perhaps his lord. 39 To prevent alienors from injuring their heirs and lords, norms developed in Norman England, bolstered in some areas by formal law, that required or made it very desirable for tenants to get their heirs’ and lords’ consent to alienate land.19 These norms were flexible. For instance, if the lord’s, tenant’s, and heir’s interests were clearly aligned, receiving explicit consent to alienate was usually unnecessary. In contrast, if a tenant sought to grant his land to the Church, consent was mandatory: the lord exercised veto power over the tenant’s desire to alienate.20 40 Feudal property arrangements created a host of externality problems. Thus they required rules of consent governing land alienations. But these rules had an unfortunate side effect: they dramatically increased the transaction costs of trading land, stifling its reallocation. ‘‘[M]ultiple consents required from people with diverse standards and concerns retarded the use of land as an economic asset’’ (Palmer 1985a, 387). They made Anglo-Norman property rights in land sticky. 3.2. Violent Auctions When property rights are sticky, if judges can’t identify disputed property 41 rights’ true owner, it’s important for them to allocate those rights to the higher-valuing disputant. But judges have a problem: they don’t know which disputant values the disputed rights more. Trial by battle was Norman England’s solution to this problem. It was a medieval demandrevelation mechanism that identified the higher-valuing disputant and allocated disputed land rights to him. The Anglo-Norman legal system used trial by battle to hold ‘‘violent 42 auctions’’ for contested land. In these ‘‘auctions’’ legal disputants ‘‘bid’’ on contested land by spending on champions who literally fought for property rights on their employers’ behalf. Better champions were more likely to win these combats. The best champions developed reputations for their skill in the arena. 43 Thirteenth-century champion William of Copeland’s name preceded him. It was known far and wide, from Yorkshire to Somerset. ‘‘The mere sight of him was enough to scare any tenant who might have considered countering his challenge.’’ Copeland’s contemporary, Robert of Clopton, ‘‘was [also] in great demand as a champion’’ in the early thirteenth century (Russell 1959, 259, 246). Because they were in greater demand, better champions commanded 44 higher prices. The Abbot of Glastonbury paid thirteenth-century champion Henry of Fernberg £20 to battle on his behalf in a property dispute. The terms of Fernberg’s contract stipulated partial payment when he wagered battle, another part before he fought, and the rest if he struck his opponent but once in the arena. An evidently inferior thirteenth-century champion, John of Smerill, commanded less than half this amount for agreeing to battle for William Heynton. His contract paid him only £8 if he defeated his opponent and nothing if he failed to land a blow (Russell 1959, 254).21 In contrast to the medieval land market, the champion market was fluid. Champions switched allegiances before battle, reshuffling themselves into the service of the higher bidder. They were happy ‘‘to desert to the other side if the inducement was sufficiently great’’ (Russell 1959, 254–256). The feudal structure of land rights heightened transaction costs in the land market. But it didn’t affect those costs in the champion market. Unlike alienating his land, which could require a tenant to secure his lord’s and heirs’ consent, the tenant required no one’s consent to hire a champion. 46 Hiring a superior champion wasn’t the only way for medieval disputants to ‘‘bid’’ on disputed land. They could also hire more champions. Only one champion fought. But purchasing multiple champions—especially the better ones—shrank the other disputant’s choices, leaving him fewer and inferior options. 47 In 1220 a demandant named Cliveden contested the right to a parcel of land then under the tenancy of fellow named Ken. Ken hired four champions, one of them the redoubtable William of Copeland. Similarly, in a case of contested fishing rights between the Abbot of Meaux and the Abbot of St. Mary’s of York, Meaux hired seven champions ‘‘at great cost.’’ Meaux was attempting to ‘‘monopolise the market’’ for professional battlers to ‘‘compel the other Abbot to employ a second-rate champion’’ (Russell 1959, 246, 255). 48 To see how trial by battle’s violent auctions affected contested property’s allocation, consider two medieval Englishmen, Eustace and Osbert. Eustace goes before the king’s court and claims the farmland Osbert occupies is his. Osbert denies Eustace’s claim. Both offer to prove their right on their champion’s body. Property rights in land are perfectly sticky: the transaction cost of trading them is prohibitive. Whoever the legal system awards the farmland to will be its permanent holder. 49 The court doesn’t know who the farmland truly belongs to. It orders trial by battle. There are two champions available for hire: Fernberg and Smerill. Fernberg has a reputation as a great fighter. Smerill doesn’t. Both champions sell their services to the highest bidder. 50 Eustace is a more productive farmer than Osbert. So he values the contested land more. Eustace is therefore willing to pay more for Fernberg’s services than Osbert is. He hires Fernberg, leaving Osbert with Smerill. The combat’s probable outcome is Fernberg’s victory. Eustace, the higher-valuing user, wins the property right. Trial by battle has used a violent auction to reveal the higher-valuing user’s identity and allocate the contested land to him. It has substituted for the Coase theorem where sticky property rights prevented trade from allocating contested farmland efficiently. As in any auction, in trial by battle’s violent auction, ‘‘bids’’ and valua- 51 tions weren’t perfectly correlated. This imperfection isn’t just true of literal auctions and implicit ones such as trial by battle. It’s equally true of those ‘‘auctions’’ we call ‘‘markets.’’ Auctions, like markets, only tend to allocate resources to their higher-valuing users. One reason efficient allocation is a tendency instead of a certainty is that bidders have different endowments. Because they have different endowments, bids and valuations may diverge. Credit markets, which allow bidders to make bids using others’ funds, 52 can help mitigate this divergence. But credit markets are imperfect.

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A second factor may have also helped mitigate the divergence between 53 bids and valuations that large endowment disparities might create under trial by battle. According to Russell (1980a, 120), under Norman England’s legal system ‘‘Battle seems to have been barred between people of widely differing status.’’ Presumably disputants with similar ‘‘status’’ had similar endowments. This bar likely ameliorated the influence that wealth differences exerted on trial by battle’s outcomes, improving violent auctions’ ability to allocate disputed property rights efficiently.22 Trial by battle’s violent auctions not only encouraged the efficient allocation of disputed property rights when those rights’ true owners couldn’t be identified. They also encouraged less rent seeking than one might expect. Wherever there are auctions, there are bids. And wherever there are bids, there are bid recipients. In the context of a ‘‘legal auction’’ such as trial by battle, bid recipients pose a problem. The bids themselves are simply transfers. However, they nefariously influence bid recipients’ incentives. Since bid recipients’ incomes depend on bids, which in turn depend on land disputes to generate those bids, legal auctions’ bid recipients have an incentive to permit or instigate illegitimate property conflicts. 55 Illegitimate land disputes, which result from bid recipients’ attempts to raise their incomes instead of from genuinely felt ownership disagreements, undermine property rights. They constitute socially costly rentseeking activity rather than socially productive ownership resolution. Individuals who confront the specter of rampant rent seeking are insecure in their property rights. They live in constant fear that fraudulent legal challengers will deprive them of their property. Therefore they have weak incentives to invest in their land. 56 The higher the bids disputants make in a legal auction, the greater is bid recipients’ payoff of rent seeking, and the weaker is individuals’ incentive to invest in their land. Higher bids, and thus bid receipts, make it more profitable for bid recipients to permit and initiate illegitimate property disputes. Higher bids, and thus bid receipts, also raise bid recipients’ incomes. By increasing the relative payoff of being a bid recipient, higher bids attract resources away from socially productive, wealth-creating industries into the socially unproductive, bid-recipient industry. Suppressing a legal auction’s social cost therefore requires suppressing the height of the bids it generates. 57 In trial by battle’s violent legal auctions, the bid recipients were champions. Thus champions (and complicit demandants) had an incentive to rent seek. The better ones could encourage unscrupulous demandants to initiate fraudulent claims, challenging ownership to land the demandant knew wasn’t his. Without data on medieval disputants’ champion expenditures, it’s impossible to measure the extent of such rent seeking under trial by battle. But indirect evidence suggests rent seeking wasn’t rampant. Citizens could and occasionally did hire champions on retainer. At least 58 one English king hired a champion this way. He paid his champion 3 pence per day whether he used the thug’s services or not. Champion Thomas of Bruges managed to sell his services on retainer as well. However, champion retainers were uncommon. ‘‘[M]ost people’’ came ‘‘to terms with an available champion only when litigation was imminent’’ (Russell 1959, 253, 254). The infrequency of champions on retainer suggests that property dis- 59 putes weren’t ubiquitous. Most people didn’t feel their land rights were so insecure as to warrant the employment of a permanent champion to defend them. If rent seeking had been rampant, illegitimate land disputes would’ve been rampant too. Perpetually threatened by the specter of fraudulent demandants and eager to perpetrate fraudulent claims of their own, most people would’ve found it worthwhile to keep their champion of choice at his ready in their permanent employment. The fact that they didn’t is reassuring. There are other reasons most medieval Englishmen may have found it 60 unprofitable to keep champions on retainer. Many people may have been unable to afford retained champions though they would’ve liked them. Alternatively, the supply of quality champions may have been very elastic, precluding the need to have a stable of champions on retainer since citizens could procure them easily on the spot market when the need arose. Still, it’s reasonable to expect to find a large number of retained legal 61 representatives under a legal system in which people feel that their property rights are constantly threatened by rent-seeking litigiousness or in which rampant rent-seeking opportunity gives them an incentive to behave litigiously themselves. The rarity of retained champions in medieval England therefore suggests that rent seeking under trial by battle wasn’t ubiquitous. This helps resolve a puzzle that trial by battle’s violent auctions pose: 62 Why didn’t Norman England’s legal system use ‘‘regular’’ auctions—the first-price ascending-bid variety—to auction contested property rights to disputants instead?23 Because regular auctions would’ve encouraged more rent seeking than violent ones. As in violent auctions, in regular ones, too, there are bid recipients. Those recipients’ identity depends on the auction’s arrangement. There are two obvious bid recipients in a regular legal auction: the loser and the legal system. Both arrangements encourage rent seeking. 64 If auction proceeds accrue to losers, individuals have an incentive to initiate baseless legal disputes in order to extort current owners. If proceeds accrue to the legal system, say to the king, or to the judges, officials have an incentive to permit and create fictitious property conflicts. For example, a judge may ignore the absence of basic evidence required to render a claim colorable, such as the presence of witnesses, and permit the case to go forward to auction. Or he might ignore clear evidence of the tenant’s ownership and pretend he can’t be sure who the land belongs to, again allowing the case to go to auction to decide its outcome. The judge may even instigate illegitimate disputes, encouraging a citizen to fraudulently challenge an existing landholder’s claim, offering some of the auction proceeds in exchange.24 65 Trial by battle’s violent auctions encouraged less rent seeking than regular auctions—and thus were less socially costly—because they generated lower bid receipts, which motivate rent-seeking behavior. To see why trial by battle’s violent auctions generated lower bid receipts than regular auctions, consider two risk-neutral legal disputants, a tenant, T, and a demandant, D. T values the disputed land vT. D values it more: vD > vT > 0. Disputants know their own and each other’s values. Judges don’t. They require some demand-revelation mechanism to identify the higher-valuing disputant. bids less than this, T will outbid him. If he bids e > 0 more, T drops out. D wins the auction. He spends vT þ e to do so. Trial by battle is different. Its violent auction is equivalent to an imper- 67 fectly discriminating all-pay auction with asymmetric valuations.25 In such an auction contestants make expenditures to improve their probability of winning some prize that has a different value to each of them. These expenditures are equivalent to ‘‘bids’’ for the prize. Each contestant pays his bid. His probability of winning the prize depends on how much he spends to win it compared to the other contestant. Ceteris paribus, the more a contestant spends to win the prize, the more 68 likely he is to win it and vice versa. The auction is imperfectly discriminating because neither contestant wins the prize with certainty as long as the other contestant spends something to win it too. The higher ‘‘bidder’’ is more likely to win, but it’s possible for the lower bidder to upset him In trial by battle’s violent auctions, the contestants are the legal dispu- 69 tants, T and D, contesting each other’s right to a piece land. Intuitively two factors determine how much a disputant will be willing 70 to spend to win the contested land, and thus the probability that he wins it, in such an auction: how much he values the contested land and how much his adversary values it. Ceteris paribus, a disputant will be willing to spend more to win contested land that he values more and vice versa. So his optimal spending level depends partly on his valuation of the land. . Ceteris paribus, a disputant will also be willing to spend more to win contested land when his adversary spends more to win it and vice versa.

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