Trial by Battle Peter T. Leesony Abstract For over a century England’s judicial system decided land disputes by ordering disputants’legal representatives to bludgeon one another before an arena of spectating citizens. The victor won the property right for his principal. The vanquished lost his cause and, if he were unlucky, his life. People called these combats trials by battle. This paper investigates the law and economics of trial by battle. In a feudal world where high transaction costs confounded the Coase theorem, I argue that trial by battle allocated disputed property rights e¢ ciently. It did this by allocating contested property to the higher bidder in an all-pay auction. Trial by battle’s “auctions” permitted rent seeking. But they encouraged less rent seeking than the obvious alternative: a …rst- price ascending-bid auction. I thank Gary Becker, Omri Ben-Shahar, Peter Boettke, Chris Coyne, Ariella Elema, Lee Fennell, Tom Ginsburg, Mark Koyama, William Landes, Anup Malani, Jonathan Masur, Eric Posner, George Souri, participants in the University of Chicago and Northwestern University’s Judicial Behavior Workshop, the editors, two anonymous reviewers, and especially Richard Posner and Jesse Shapiro for helpful suggestions and conversation. I also thank the Becker Center on Chicago Price Theory at the University of Chicago, where I conducted this research, and the Mercatus Center at George Mason University. yEmail:
[email protected]. Address: George Mason University, Department of Economics, MS 3G4, Fairfax, VA 22030. 1 “When man is emerging from barbarism, the struggle between the rising powers of reason and the waning forces of credulity, prejudice, and custom, is full of instruction.” — Henry C.