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Abstract:
For the past forty years, scholars have developed an immense literature devoted to understanding and solving the tragedy of the commons. The most prominent solutions to this tragedy have focused on building and maintaining stable institutions. This Article reexamines this foundational literature by exploring the costs of stability. In many cases, far more than is generally recognized, the way we value the commons changes. When values change, stable institutions that once made perfect sense become rigid institutions that block change. This Article explains how institutions most able to solve the tragedy of the commons often cause a tragedy of another sort. To ground theory in practice, this Article examines three case studies: the United States' governance of the radio spectrum, the founding of Yellowstone National Park, and western water law. This Article ends by proposing a set of draft principles to help us overcome institutional rigidity. For decades, commons scholarship has focused on the tragedy of overuse. This Article re-frames the commons debate, explicitly taking into account not only the benefits of stable institutions but also their costs.

common pool resources, institutional rigidity, institutional lock-in, tragedy of the commons, CRPs, commons, competing values, rival uses, natural resources, institutions, new institutionalism, transaction costs

Abstract:
In the nineteenth century, Mormons planned and built hundreds of communities throughout the West. Time, growth, and redevelopment have begun to erase this history. Like towns and cities across the country, places first settled by Mormons now grapple with urban sprawl's challenges. This Article explores whether the Mormons bold planning effort that permeated the frontier of the Old West of the nineteenth century has any lessons to offer those grappling with the planning challenges facing the New West of today.

urban sprawl, land use planning, Mormon history, Mormonism

Abstract:
This short primer sets out a range of policy choices and legal options available to the EPA as it decides how it might use the Clean Air Act to address climate change. This paper was written as a background paper for a conference co-sponsored by Duke Law, Harvard Law School, and Duke's Nicholas Institute held on March 26, 2009.

Climate Change, Clean Air Act, EPA

Abstract:
Scholars and others concerned with resource management typically celebrate pathways to stability and cooperation in the commons. Within this celebratory literature, Elinor Ostrom's principles of long-enduring institutions have become recognized as a landmark achievement. This article reexamines stable commons institutions generally and Ostrom's principles specifically. While these principles undoubtedly have helped identify ways to build stable institutions, they have an unexplored downside. Specifically, when our values change, stable institutions can thwart new values from making headway in the commons. A number of scholars have used game theory to explain the power of institutions to resolve problems plaguing the commons. However, the game theory used thus far does not take into account that how we value the commons is subject to change. Using conventional game theory to describe the power of institutions to govern the commons, the article extends that theory and highlights a dark side of institutions.

commons, CPRs, Common-pool resources, game theory, new institutionalism, institutions, tragic institutions, tragedy of the commons, common pool resources, institutional rigidity, institutional lock-in, tragedy of the commons, competing values, rival uses, natural resources

Abstract:
Until recently, the question of regulating greenhouse gases was a question for nations. Over the past few years an increasing number of states and municipalities have shown an interest in grappling with climate change. This paper attempts to help states, and specifically California, to formulate an effective cap-and-trade program by highlighting the most important design features and the tradeoffs associated with policy alternatives.

Climate change, global warming, Kyoto, California, cap-and-trade, environment, greenhouse gas

Abstract:
While the Obama administration has made climate change a priority and the House of Representatives has passed a bill, it remains uncertain when or if the Senate will act on this issue, much less what final legislation might be signed. Until then, the Clean Air Act (CAA) remains the law of the land. In light of the CAA's central role in addressing climate change over at least the near term and perhaps far longer, on March 26, 2009, a group of the nation’s leading CAA experts gathered at Duke University to focus specifically on how the U.S. Environmental Protection Agency (EPA) could or should use the CAA to reduce the nation’s greenhouse gases (GHGs). This short article highlights the major points debated during the day-long conference and provides insights into the factors EPA will need to consider as it moves forward with crafting GHG regulations under Title I and Title II of the CAA.

endangerment finding, greenhouse gases, climate change, EPA

Abstract:
The presidential primary system is plagued by states jockeying to hold primaries and caucuses as early as possible. While the trend of racing to vote is not new, it has increased alarmingly. In 2008, more than half the states held contests by the first week of February. This free-for-all hurts the democratic process by encouraging uninformed voting, emphasizing the role of money in campaigns, and pressing candidates to rely on sound-bite campaigning. Because the presidential nomination is one of the most important decisions left to voters in the United States, this problem is well-recognized. It is also widely misunderstood. This article casts the problem in a different light, demonstrating that frontloading of the nomination process is a classic tragedy of the commons. Recognizing the problem as a commons dilemma provides a powerful explanation for the trend toward earlier primaries and, more importantly, provides insights into how best to reform the nomination system.

Frontloading, presidential primary, commons, common-pool resources, tragedy of the commons