An article by Robert Fleck of Clemson, forthcoming in the International Review of Law and Economics, presented a theoretical case that price gouging restrictions can be value-enhancing under certain conditions. I was skeptical, but Fleck is careful in building his case.

The key qualifier above is under certain conditions. In “Can Prohibitions on ‘Price Gouging’ Reduce Deadweight Losses?” Fleck agreed it is obvious price caps can cause shortages, and price caps designed to apply specifically during emergencies can create shortages at times during which shortages are especially harmful to consumers

But he found a special case for which such laws may be on net beneficial, namely: when consumption of the good creates external benefits, and the price gouging limits are foreseen to create shortages under unpredictable high demand conditions, and production is fixed in the short run, and resale of the good among consumers is impossible, then the policy can induce consumers to buy larger amounts of the external-benefit generating good.

His primary illustration was flu vaccinations, for which production is completed before the flu season type is revealed to be either “high demand” (flu epidemic) or “low demand” (normal). In the absence of shortage-inducing price limits, consumers wait for realization of the flu season type before deciding whether to get a flu shot. Given a price gouging-based price cap and resulting predictable shortage, Fleck explained, more consumers buy a vaccine production prior to the flu season (i.e. before revelation of the flu season type). Because by assumption consumption of the good has external benefits, inducing greater consumption can create net increases in overall economic value.

Fleck clearly stated that his result doesn’t generalize to all price gouging restrictions. While he suggested a few light stories of the potential external benefits associated with drinking water, gasoline, home electrical generators, and chain saws, he didn’t play these alternatives up. (For good reason, too. Unlike flu vaccinations “consumed” at point of retail purchase, these other consumer goods are readily resold. A resale market undermines consumer incentives to purchase the good before the demand type is known and so does not lead to an increase in overall consumption.)

He concluded by raising the possibility the widespread adoption by states of price gouging proscriptions might reflect growth of relatively efficient types of regulation at the expense of less efficient regulation, or perhaps the laws persist because they are not as costly as they otherwise may seen. On this point I remain skeptical.

As Fleck emphasized early in the paper, the model shows that price gouging limits may be on net beneficial, but it does not conclude they must be on net beneficial. In addition, even when the policy may be on net beneficial it will fail to maximize total benefit, and so in theory there are better policies. Finally, he said, the laws would have to be tailored to apply mostly under the restrictive conditions set out above. Price gouging restrictions under other conditions will reduce overall surplus. Fleck suggested (for Hayekian knowledge problem reasons) it was unlikely that policymakers would be so well informed as to be able to identify just which products and at which times the laws should apply.

Overall he has a unique and interesting theoretical case built with traditional microeconomic tools. Other attempts at providing an analytic foundation for price gouging laws are ad hoc and unpersuasive (comments on Rotemberg here, comments on Rapp here and here). But despite Fleck’s offering an efficiency-based justification for price gouging limits, the relatively strict conditions for his theoretical case make the model an unlikely base of support for any existing price gouging policy.