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Fence Laws vs. Herd Laws: A Nineteenth Century Kansas Paradox


  • Nicolas Sanchez

    () (Department of Economics, College of the Holy Cross)

  • Jeffrey B. Nugent

    (University of Southern California)


This paper considers the legal conflict between farmers and cattle raisers over the fencing of animals and crops within the context of Kansas in the 1870s, when counties were given the option to retain the traditional fence laws (requiring crops to be fenced in) or to adopt the herd laws (requiring the restraining of animals by means of herding). Since barbed wire fencing did not reach Kansas until 1875, and a very detailed agricultural census was recorded that year, this study is able to conduct statistical tests of various hypotheses as to why approximately half the counties chose fence laws while the other half chose herd laws. The study pays close attention to the hypotheses suggested by Earl Hayter (an agricultural historian), law and economics specialists, and the property rights theorists. Its main findings are that, while previous hypotheses that use public choice and group interests consideration in explaining the choice of the legal regime are borne out, the traditional conceptual division between farmers and cattle raisers turn out to be overly simplified due to some important complementarities in production between some crops and animal husbandry. Hence, the results demonstrate that a clear distinction needs to be made between corn farmers/cattle producers, on the one hand, and wheat farmers on the other. The empirical findings also challenge the generally accepted role of population desity in determining the legal regime.

Suggested Citation

  • Nicolas Sanchez & Jeffrey B. Nugent, 1998. "Fence Laws vs. Herd Laws: A Nineteenth Century Kansas Paradox," Working Papers 9805, College of the Holy Cross, Department of Economics.
  • Handle: RePEc:hcx:wpaper:9805

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    Cited by:

    1. Lueck, Dean & Miceli, Thomas J., 2007. "Property Law," Handbook of Law and Economics, Elsevier.
      • Dean Lueck & Thomas J. Miceli, 2004. "Property Law," Working papers 2004-04, University of Connecticut, Department of Economics.

    More about this item


    property rights; fence laws; herd laws; economic history; kansas; coase theorem; complementarity in production;

    JEL classification:

    • N5 - Economic History - - Agriculture, Natural Resources, Environment and Extractive Industries
    • K4 - Law and Economics - - Legal Procedure, the Legal System, and Illegal Behavior
    • D7 - Microeconomics - - Analysis of Collective Decision-Making


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