“Taking Turns”: Common Solution, Unusual Remedy — Dan Kelly

Post by Dan Kelly

To facilitate coordination and mitigate conflicts, a common solution in everyday life is the idea of taking turns.  If two siblings or children are fighting over a toy (say, a ball or doll), a parent or teacher may suggest taking turns.  If drivers are exiting a crowded parking lot after work, church, or a ballgame, the implicit norm is to take turns.  Yet, this strategy of taking turns has received relatively little attention in law and the social sciences.

In “Taking Turns” (forthcoming Florida State University Law Review), Ronen Perry (Haifa) and Tal Z. Zarsky (Haifa) examine turn taking from both a fairness and efficiency perspective.  Their lead example is from a trusts and estates case, In re McDowell, 345 N.Y.S. 2d 828 (Sur. Ct. N.Y. 1973):

Two siblings jointly inherit their late father’s rocking chair. The chair has principally sentimental and no real economic value; it cannot be physically divided between them, and selling it to distribute the proceeds will compensate neither for the sentimental loss. What, then, should become of the disputed property? In a self-confessed “strange” decision in the McDowell case, the Surrogate’s Court of New York ordered that the two siblings take possession of the chair alternately for six-month periods; and that when one passed away, the other would obtain exclusive possession.

Are there other examples of turn taking in law and legal institutions, particularly private law?  Given the prevalence of turn taking as an informal solution to coordination problems, why does the formal law not embrace taking turns more frequently when it comes to remedies? 

Perry and Zarsky mention a few other examples of taking turns from private law (child custody after divorce, jointly owned sawmills in Maine) and public law (rotating political offices, using license plate numbers to ration road space).  They also mention timesharing arrangements.  But, as the authors note, “past and present manifestations as well as suggested applications have been sporadic, lacking a general unifying theoretical framework for such use in different contexts.”

Likewise, the social science literature on turn taking is thin.  One notable exception, which Perry and Zarsky also cite, is Elinor Ostrom, Governing the Commons: The Evolution of Institutions for Collective Action (1990).  In her book, Ostrom discusses how groups utilize self-governance mechanisms to solve collective action problems with common pool resources.  Some of these solutions involve taking turns, like the rotational system of fishers in Alanya, Turkey:

From September to January, each day each fisher moves east to the next location.  After January, the fishers move west.  This gives fishers equal opportunities at the stocks that migrate from east to west between September and January and reverse their migration through the area from January to May. . . . The process of monitoring and enforcing the system is, however, accomplished by the fishers themselves as a by-product of the incentive created by the rotation system. (Ostrom 1990: 19-20).

In economics, Vai-Lam Mui (Monash), for whom I had the opportunity to serve as a research assistant during college, has been investigating taking turns as a solution to coordination games in several articles, including “Using Turn Taking to Mitigate Coordination and Conflict Problems in the Repeated Battle of the Sexes Game,” 65 Theory and Decision 153-183 (2008) (with Sau-Him Paul Lau), “Using Turn Taking to Achieve Intertemporal Cooperation and Symmetry in Infinitely Repeated 2×2 Games,” 62 Theory and Decision 167-188 (2012) (with Sau-Him Paul Lau), and “Learning, Teaching, and Turn Taking in the Repeated Assignment Game,” 54 Economic Theory 335-357 (2013) (with Timothy N. Cason and Sau-Him Paul Lau). 

More broadly, turn taking is a common strategy for solving coordination problems in various settings, from military strategy (soldiers in a platoon take turns being on “point” in dangerous situations) to behavioral ecology (birds flying in a “V” formation take turns leading the flock).

Perhaps “turn taking” remedies are a subcategory of “split the difference” remedies.  Parchomovsky, Siegelman, & Thiel (2007) point out that common law jurisprudence generally favors a “winner-take-all” approach rather than “split the difference” remedies, except in rare cases like Popov v. Hayashi, 2002 WL 31833731 (Cal. Super. 2002).  In Popov, the Barry Bonds baseball case involving a dispute over ownership of his record-setting 73rd home run, the court ruled that the ball must be sold and the proceeds divided equally between plaintiff and defendant.  But, in contrast to some “split the difference” remedies, turn taking remedies simply divide the use of the property (or entitlement) over time, while keeping the property intact and allowing the parties to retain ownership (the rocking chair in McDowell was neither cut in two nor sold). 

One problem with remedies based on taking turns are higher administrative and monitoring costs for courts.  (Parents and teachers will no doubt relate!)  Still, given the ubiquity of turn taking as a social norm and informal solution to coordination problems, it is surprising that we do not see turn taking remedies more often.  It could be that, while taking turns is a good Coasean solution, cases in which parties decide to litigate, rather than settle, are bad candidates for taking turns.  However, even if splitting the baby is not a wise legal remedy (unless you are King Solomon), maybe sharing the baby doll is a remedy that more legislatures and courts should consider.