The Dark Side of Private Ordering: An Institutional and Empirical Analysis of Organized Crime

Posted: 9 Mar 2000

See all articles by Curtis J. Milhaupt

Curtis J. Milhaupt

Stanford Law School; European Corporate Governance Institute

Mark D. West

University of Michigan Law School

Date Written: 2000


This Article provides theoretical and empirical support for the claim that organized crime competes with the state to provide property rights enforcement and protection services. Drawing on extensive data from Japan, this Article shows that, like firms in regulated environments everywhere, the structure and activities of organized criminal firms are significantly shaped by state-supplied institutions. Careful observation reveals that in Japan, the activities of organized criminal firms closely track inefficiencies in formal legal structures, including both inefficient substantive laws and a state-induced shortage of legal professionals and other rights-enforcement agents. Thus, organized crime in Japan--and, by extension, in other countries where significant gaps exist between formal property rights structures and state enforcement capacities--is the dark side of private ordering.

Regression analyses show negative correlations between membership in Japanese organized criminal firms and (a) civil cases, (b) bankruptcies, (c) reported crimes, and (d) loans outstanding. We interpret these data to support considerable anecdotal evidence that members of organized criminal firms in Japan play an active entrepreneurial role in substituting for state-supplied enforcement mechanisms and other public services in such areas as dispute mediation, bankruptcy and debt collection, (unorganized) crime control, and finance. We offer additional empirical evidence indicating that arrests of gang members do not curb the growth of organized criminal firms. These findings may have a significant normative implication for transition economies: efforts to eradicate organized crime should focus on the alteration of institutional incentive structures and the stimulation of competing rights-enforcement agents rather than on traditional crime-control activities.

JEL Classification: J24, L10

Suggested Citation

Milhaupt, Curtis J. and West, Mark D., The Dark Side of Private Ordering: An Institutional and Empirical Analysis of Organized Crime (2000). University of Chicago Law Review, Vol. 67, p. 41, 2000, Available at SSRN:

Curtis J. Milhaupt (Contact Author)

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

European Corporate Governance Institute ( email )

c/o the Royal Academies of Belgium
Rue Ducale 1 Hertogsstraat
1000 Brussels

Mark D. West

University of Michigan Law School ( email )

625 South State Street
Professor of Law
Ann Arbor, MI 48109-1215
United States
734-647-4041 (Phone)
734-764-8309 (Fax)

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