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The purpose of this paper is to analyze a recent proposal by the State of New York that would subject a large portion of the credit default swap (CDS) market to state‐based insurance regulatory oversight.

Using the collapse of AIG as an example of the systemic risk inherent in unregulated CDS transacting, the Coase Theorem is then applied to determine the optimal level of CDS regulatory oversight.

Although CDSs resemble insurance contracts in many respects, they are also uniquely complex financial instruments that are continually changing and thus not well suited for the antiquated state‐based model of insurance regulation. Furthermore, the external forces that influence state‐based regulatory decision‐making are likely to produce inefficient regulation.

The Coase Theorem states that the optimal level of regulatory oversight is the one that causes market participants to internalize the risk inherent in transacting and does so at the lowest cost. Because of the complexity of CDS contracts and the unique forces that guide state‐based regulatory decision‐making, the State of New York's proposal is ill advised.

By utilizing a law and economics perspective, it becomes clear that although a state‐based model of regulatory oversight may force market participants to internalize systemic risk, it is nevertheless suboptimal because it does not do so at the lowest cost.

The end of World War II brought about many economic changes, among them the tremendous increase of US manufacturing activities in Western Europe. This astronomical increase of foreign direct investment (FDI) required a new theory ‐ an economic theory of foreign direct investment. International economic theory, which traditionally had ignored the FDI decision, was not able to explain the FDI decision, nor could it explain the phenomena of multinational corporation (MNC). In a world of perfect competition, foreign direct investment would be absent. And when all markets operate efficiently, when there are no external economies of production and marketing, when information is costless and there are no barriers to trade or competition, international trade is the only possible form of international involvement. Logically, it follows that it is the departures from the models of perfect competition that must provide the rationale for foreign direct investment. Since, according to the Heckscher‐ Ohlin‐Samuelson (neoclassical) model, trade of goods will equalize factor prices in a world of factor immobility. In fact, the FDI decision is even ignored by new international economics which, since the late 1970's, has utilized new developments in the field of industrial organization. Proponents of these new theories have developed models that emphasize increasing returns and imperfect competition and see the possibility that government involvements in trade (trade restrictions, export subsidies, etc.) may under some circumstances be useful. All of this is done while foreign direct investment is ignored.

In order to answer this question, it will first be necessary to distinguish between political and economic correctness on the one hand, and then between Austrian and mainstream economics on the other.

The Coase theorem is associated with Stigler because Stigler coined the term. The object of this paper is to show that Stigler’s Coase theorem is Stiglerian for deeper – namely, methodological – reasons. We argue that, convinced as he was by the importance of Coase’s message, Stigler also believed that this message – such as presented in “The Federal Communications Commission” (1959) or “The Problem of Social Cost” (1962) – was not scientific. Hence, he had to transform it into a theorem to give it a scientific dimension. This is what we try to show by presenting Stigler’s methodology and by confronting it to the methodology used in Coase’s articles.

The first issue that requires examination is the question of how we got to this point to begin with. The answer to this question, of course, is a function of who “we” happens to be. The lawyers can blame Oliver Wendell Holmes (1897, p. 469), who made “the man of the future … the man of statistics and the master of economics.” The future, it would seem, is now. Legal Realist/Institutionalist lawyer-economists such as Walton Hamilton and Robert Lee Hale, who were economists on law school faculties before that tradition got started at Chicago, had something to do with this too, although neither they nor law-minded economists such as John R. Commons can be given credit or blame for the economic analysis of law – at least not directly.³ The birth of the economic analysis of law is very much a Chicago story – Coase, Becker, and Posner – although we must allow that Guido Calabresi also had more than a bit to do with these things.⁴

We argue that the future of Austrian political economy rests on the study of how institutional entrepreneurs discover and implement alternative institutional arrangements conducive to economic growth. This requires a dual level of analysis in spontaneous order studies. How such institutional arrangements manifest themselves is ultimately an empirical question. As a progressive research program, Austrian political economy will entail cross-fertilization with other empirical branches of political economy that illustrate its own central theoretical contributions to political economy, namely economic calculation, entrepreneurship, and spontaneous order. Accordingly, we argue that such cross-fertilization with the work of Ronald Coase and Elinor Ostrom will further expound the institutional counterpart of “rivalry” in the market process, namely polycentricism and its empirical manifestation. Understanding the distinct relationship between rivalry and polycentricism will provide the central theoretical underpinning of institutional evolution.

Ronald Coase's landmark 1937 article, “The Nature of the Firm,” framed the study of organizational economics for decades. Coase asked three fundamental questions: Why do firms exist? What determines their boundaries? How should firms be organized internally? To answer the first question, Coase famously appealed to “the costs of using the price mechanism,” what we now call transaction costs or contracting costs, a concept that blossomed in the 1970s and 1980s into an elaborate theory of why firms exist (Alchian & Demsetz, 1972; Williamson, 1975, 1979, 1985; Klein, Crawford, & Alchian, 1978; Grossman & Hart, 1986). The second question has generated a huge literature in industrial economics, strategy, corporate finance, and organization theory. “Why,” as Coase (1937, pp. 393–394) put it, “does the entrepreneur not organize one less transaction or one more?” In Williamson's (1996, p. 150) words, “Why can't a large firm do everything that a collection of small firms can do and more?” As Coase recognized in 1937, the transaction-cost advantages of internal organization are not unlimited, and firms have a finite “optimum” size and shape. Describing these limits in detail has proved challenging, however.¹