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Heller's Gridlock Economy in Perspective: Why There is Too Little, Not Too Much, Private Property


Richard A. Epstein


New York University School of Law; Stanford University - Hoover Institution on War, Revolution and Peace; University of Chicago - Law School

November 13, 2009

U of Chicago Law & Economics, Olin Working Paper No. 495

Abstract:     
This Article critiques Michael Heller’s important contribution in the Gridlock Economy. At no point does it take the position that gridlock, or the associated anticommons, is not a serious issue in the design of a legal system. But it does insist that gridlock is not the major source of social dislocation, or that private ownership is the major source of gridlock. More concretely, the articles examines the other important sources of economic distortion that are unrelated to economic gridlock from private action. These include the use of excessive government subsidies (as with health care), misguided government licenses (as with broadcast licenses); the unwise use of government power to create gridlock situations (as with employment law); the excessive role of government permitting (as with real estate development); and the use of creative private techniques to overcome gridlock (as with patent licensing as a way to combat the patent thicket). Thereafter, the Article explains how traditional common law rules did a better job in controlling for gridlock than many current initiatives, by narrowly defining the class of actionable harms to exclude competitive loss, blocked views, and hurt feelings. It closes with an explanation of how broad definitions of harm slow down decisions in the public sector, thereby impeding the use of the eminent domain power that could otherwise respond to gridlock issues.

Number of Pages in PDF File: 52

Keywords: Michael Heller, Gridlock Economy,

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Date posted: November 14, 2009  

Suggested Citation

Epstein, Richard A., Heller's Gridlock Economy in Perspective: Why There is Too Little, Not Too Much, Private Property (November 13, 2009). U of Chicago Law & Economics, Olin Working Paper No. 495. Available at SSRN: http://ssrn.com/abstract=1505626 or http://dx.doi.org/10.2139/ssrn.1505626

Contact Information

Richard A. Epstein (Contact Author)
New York University School of Law ( email )
40 Washington Square South
New York, NY 10012
United States
(212) 992-8858 (Phone)
(212) 995-4894 (Fax)
Stanford University - Hoover Institution on War, Revolution and Peace
Stanford, CA 94305-6010
United States
University of Chicago - Law School ( email )
1111 E. 60th St.
Chicago, IL 60637
United States
773-702-9563 (Phone)
773-702-0730 (Fax)
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