In June 2006, twenty
scholars met in Chicago to discuss the future of the commons and the
anticommons. The well-known tragedy of the commons story (which has the structure of a Prisoner's Dilemma) and its more recently developed counterpart, the tragedy of the anticommons, have provided influential focal points for thinking about property regimes and resource allocation. The discussants considered the continuing vitality of these
conceptual templates in real property, natural resource, and intellectual
property contexts, addressed possible refinements and theoretical extensions,
and discussed potential avenues for further research.
A set of readings
served as springboards for the discussion, which was broken up into six sessions:
Session One: Commons and Semicommons Property Regimes
Session Two: Adding the Anticommons
Session Three: Natural Resource and Real Property Applications
Session Four: Intellectual Property Applications
Session Five: Theoretical Extensions
Session Six: Open Discussion
We hope to continue the conference conversation here and expand the discussion beyond the original conference participants. Click here for follow-up commentary; comments by additional scholars will be added soon. We are also compiling some additional readings on the commons and the anticommons here. If you would like to contribute comments, cites, or links, please send them to Lee
Fennell, lfennell@law.uiuc.edu.
For an audio/video file (WMV) click here. Try this format if you have difficulty making the MP3 file play or if you have trouble getting adequate volume. You cannot see much on the video, but the sound quality is good.
For an audio/video file (WMV) click here. Try this format if you have difficulty making the MP3 file play or if you have trouble getting adequate volume. You cannot see much on the video, but the sound quality is good.
For an audio/video file (WMV) click here. Try this format if you have difficulty making the MP3 file play or if you have trouble getting adequate volume. You cannot see much on the video, but the sound quality is good.
For an audio/video file (WMV) click here. Try this format if you have difficulty making the MP3 file play or if you have trouble getting adequate volume. You cannot see much on the video, but the sound quality is good.
For an audio/video file (WMV) click here. Try this format if you have difficulty making the MP3 file play or if you have trouble getting adequate volume. You cannot see much on the video, but the sound quality is good.
As I posted here last week, I attended last weekend a conference in Chicago on the “Future of the Commons and Anti-Commons” organized by my colleague, Lee Fennell, who’s done a formidable amount of work in this area in her short career. Lee has now created a website with the conference readings and audio and video files to enable people who weren’t there to join the discussion.
The topic, which focuses on the law and economics of property, isn’t my usual area, but I was happy to be included among a brilliant group of just about everybody who is anybody in this field – Lee Alston, Richard Brooks, Thrainn Eggertsson, Rebecca Eisenberg, Bob Ellickson, Nuno Garoupa, Michael Heller, Gary Libecap, Rob Merges, Tom Merrill, Steve Munzer, Carol Rose, Henry Smith, Katrina Wyman, as well as my colleagues Richard McAdams, Larry Solum, and Tom Ulen and, of course, Lee.
Here I, perhaps foolishly in light of my ignorance, present my peculiar take on the subject.
Everybody knows what the “commons” problem is – basically, the overuse of property that can result from people’s rights to use common property. Less generally known is the concept, described most notably by Michael Heller, of the “anti-commons,” which can arise from people’s rights to exclude or prevent use.
Heller first discussed the anti-commons problem in relation to the property rights regime in post-Soviet Russia. He explained why storefronts stayed empty despite thriving kiosks out front: a maze of rights by disparate parties with incompatible interests that prevented property from moving to its best use.
Although this seems like an arcane problem from a setting that has little to do with the contemporary US free market economy, in fact it has a lot to do with us. As an article co-authored by James Buchanan included in the readings highlights, the anticommons is a persistent pathology of modern bureaucracies. Environmental and other laws often give exclusion rights to what Buchanan called “zealots” with non-economic motivations who are insensitive to efficient uses of property. Because we’re persuaded that “efficiency” can’t be the last word, we get to a sad state of affairs in which resources are wasted and nobody is happy.
A selection from Gary Libecap in the readings poignantly describes how this is happening with water rights in the contemporary US west. The fallowing of farm land to redirect water to much more valuable urban use may be in everybody’s interest, but it's being impeded by a maze of laws that has created an anticommons in western water.
Although this field started as a property metaphor – a counterpart to the problem (or “tragedy”) of the commons -- it is really, in my view, more a problem for regulation and public choice theory. An anti-commons problem seems to arise when interest groups push for decision rights, often making their arguments in altruistic terms that appeal to the rest of the electorate. An anticommons can arise from private allocations of rights. But markets often prevent those situations from turning into problems, or "tragedies." The decision rights might impose costs, but they might nevertheless be better than any feasible alternative. Indeed, even when regulation creates the potential for an anti-commons scenario, markets can set things right.
For example, the readings include a famous article by Eisenberg and Heller applying the anti-commons idea to patenting of gene segments, which impedes drug development. I wonder (not being an expert in this area I have to only wonder) how much of a problem this really is given the many devices private firms can employ (merger, acquisition, licensing, joint venture) to overcome the initial “default” allocation of intellectual rights. Of course laws like the antitrust laws may get in the way, but then maybe the answer is to fix those laws rather than undoing the IP laws.
Moving to my area of corporate law, one can easily conceive of corporate social responsibility as a kind of anticommons, where all kinds of groups have a say in how the firm is managed and this prevents the firm from being managed efficiently. Think co-determinism in Europe. But as I’ve recently pointed out, in my Accountability and Responsibility in Corporate Governance, US corporate law has eschewed the goofier varieties of socially responsible governance, contenting itself with giving managers the power to take social concerns into account rather than giving decision rights to employees and others. The reason for this moderation is that jurisdictional competition for corporate law lets the market block inefficient decision rules that state legislatures otherwise might impose. For example, US corporate law long ago rejected one-shareholder-one-vote, the ultimate corporate anticommons rule. For corporate law, then, anticommons theory stands mainly as a warning of what might happen if we abandon our current system.
As the above indicates, I think maybe the property theorists have had this toy to themselves for too long and it’s time for some of the rest of us to play with it.
Actually, I'm not so sure that the "regulatory anticommons" should be described as an "anticommons" problem at all. The situation described by Buchanan & Yoon in their article (James M. Buchanan & Yong J. Yoon, Symmetric Tragedies: Commons and Anticommons, 43 J. Law & Econ. 1 (2000) is based on an analogy between an anticommons--where ownership is fragmented--and regulation, where regulatory permission is required for certain uses. In some contexts, multiple permits may be required: for example, anyone who builds a house will be required to pull a variety of permits and get approval from inspectors. But this isn't an anticommons at all: not in any sense in which the term "anticommons" has any precise meaning. The bureaucrats who issue permits and the inspectors who sign off on construction are not owners, and fragmented ownership is the definition of an anticommons. The incentives and roles of owners and regulators are different, and the reasons for creating regulations are different from the reasons for creating property rights. It's just hard to see what the analogy really illuminates, and it's pretty easy to see how the analogy easily leads to conceptual confusion.
In fact, that’s my point, but I’m coming at it from precisely the opposite direction. I think the anticommons idea is mistakenly phrased as a property theory when it is really a theory of regulation. Buchanan and Yoon in fact don’t use the concept as an “analogy” to regulation, but rather show how it can be formally modeled as a theory of regulation.
Parisi, Schulz and Klick take this one step further by showing precisely how the problem develops – specifically, as a problem of perverse regulatory competition. Here’s a quote:
"When regulatory authority is shared among multiple bodies, the ultimate degree of intervention depends upon two dimensions of regulatory activity. In this context, regulation can take the form of positive or negative actions, and the regulators’ authority will be either concurrent or alternative. In this article we present generalized theorems describing the level of regulation undertaken within each possible regulatory form, relative to the case of unified regulatory power, as well as a discussion of the welfare implications of the various regulatory forms."
What I am saying is that the property baggage should be jettisoned and the focus placed the public choice problem, as Buchanan & Yoon and Parisi, Schulz and Klick have done. Indeed, I wondered at the conference whether the idea would have been more useful and conceptually clearer if it had originally been proposed along these lines.
Lee Alston
Response
Ok, I think that both Larrys are right; when it comes to the issue of
a regulatory anticommons the concept from property in a legal sense does
not follow, but from the property rights view of economists or political
scientists we can begin to model the veto situation that many viewed as
a bureaucratic anticommons. I would argue that bureaucratic and political
property rights are not well defined or specified, in general. In order to get the gains from trade which we desire you need to be able to trade the asset, which does not have to be tangible, e.g. it could be a veto right. You can exchange in-kind, like a logroll, but this then confronts the double-coincidence of wants. The Heller anticommons
view has property rights well defined but there are just too many owners and the problem is one of high transaction costs. Rather than Larry Ribstein's advocating Public Choice theory I prefer the broader literature known as the New Institutional Economics:
www.isnie.org. I have co-authored an article on political property rights for the President and the legislature in Brazil: "Pork for Policy: Executive and Legislative Exchange in Brazil" in the March 06 issue of the Journal of Law, Economics and Organization.
To add a response or to post on another point, please send the text in an email to Lee Fennell, lfennell@law.uiuc.edu and indicate that you would like it to be posted on the IPLE conference website.
Garrett
Hardin, The Tragedy of the Commons,
162 Science 1243 (1968)
Elinor Ostrom, Governing The Commons:The Evolution Of Institutions For Collective
Action 8-23 (1990)
Thráinn
Eggertsson, Open Access versus Common
Property, in Property Rights:
Cooperation, Conflict, And Law (Terry L. Anderson & Fred S.
McChesney, eds., 2003)
Frank
I. Michelman, Ethics, Economics, and the
Law of Property, in Nomos XXIV,
Ethics, Economics, and the Law 3, 6, 9 (J. Roland Pennock and John W.
Chapman, eds. 1982)
Michael
Heller, The Tragedy of the
Anticommons:Property in the Transition
from Marx to Markets, 111 Harv. L.
Rev. 621 (1998)
James
M. Buchanan & Yong J. Yoon, Symmetric
Tragedies:Commons and Anticommons,
43 J.L. & Econ. 1 (2000)
Abraham
Bell & Gideon Parchomovsky, Of
Property and Antiproperty, 102 Mich.
L. Rev. 1 (2003) (excerpt)
Some Additional Readings on the Commons and Anticommons
This list is a work in progress and is obviously not comprehensive. Please send additional cites and links to Lee Fennell, lfennell@law.uiuc.edu.
Collections
Digital Library of the Commons.
This large, searchable compilation of work on the commons is a collaborative project of Indiana University's Workshop in Political Theory and Policy Analysis and Indiana University's Digital Library Program.
Special Issue: Telecommunications and Property Rights, 22 Yale J. on Regulation (Summer 2005) (table of contents). Includes work by Eric R. Claeys, Thomas W. Hazlett, Michael A. Heller, Henry E. Smith, and Richard A. Epstein.
Articles, Working Papers, and Book Chapters
Buzbee, William W., Recognizing the Regulatory Commons: A Theory of Regulatory Gaps. 89 Iowa Law Review 1 (2003) (Draft available at SSRN)..
Dibadj, Reza. Regulatory Givings and the Anticommons, 64 Ohio St. L.J. 1041 (2003) (Abstract available on SSRN).
Thompson, Dale B., Of Rainbows and Rivers: Lessons for Telecommunications Spectrum Policy from Transitions in Property Rights and Commons in Water Law, 54 Buffalo L. Rev. 157 (2006) (Draft available at SSRN).
Wyman, Katrina, From Fur to Fish: Reconsidering the Evolution of Private Property, 80 New York University Law Review 117 (2005) (Draft available at SSRN).
