Regulatory Givings and the Anticommons

Abstract:     
The concepts of takings and the tragedy of the commons are familiar to those versed in the legal and economic literature. Only recently has scholarship begun to emerge around their less studied counterparts, givings and anticommons. For the first time, this article attempts to develop and bring together these two emerging areas of legal scholarship using the tools of law and economics.

The focus is to explore how these new concepts, taken together, can create a mechanism with which to explore developments in administrative law. The piece first builds a theoretical argument as to how regulatory largesse can subtly create a right for a small number of entities to exclude others, thereby squelching business competition and social diversity. A variety of examples from telecommunications law, local government law, natural resources law, and intellectual property law adds empirical weight to the argument.

Next, the root causes of this phenomenon are explored. Public choice theory and the public interest rhetoric, while providing valuable insights, cannot offer a satisfactory explanation. Ideas from transaction cost economics and behavioral economics also shed light on why conventional solutions to the dilemma - grouped around the polarities of privatization and public commons creation - are inadequate.

The article concludes by offering an approach with which to reform administrative law. Central to change are reconceptualizations of the public trust doctrine, property versus liability rules, and the public/private distinction.

Keywords: law and economics, administrative law, givings, anticommons, regulation

JEL Classifications: K10, K23

Accepted Paper Series