Common Interest Tragedies
Lee Anne Fennell
University of Chicago Law School
Northwestern University Law Review, Vol. 98, p. 907, 2004
This paper engages one of the fastest-growing topics in property theory, the anticommons. The anticommons idea originated in Frank Michelman's description of a regulatory regime in which nobody could use a particular resource without the permission of everyone else. Michael Heller's subsequent construction of a category of anticommons property corresponding to recognizable resource problems sparked a surge of scholarly interest in the notion. The anticommons template has now been applied in many property contexts, from patents to land use. However, some of the key criteria scholars have offered for identifying an anticommons and distinguishing it from an ordinary commons collapse upon scrutiny. The fragility of the existing boundaries between commons and anticommons suggests a larger question that takes center stage here: How might the universe of common and interdependent resource problems be most usefully carved up?
In addressing that question, the paper makes three contributions. First, it develops a functional taxonomy for categorizing common interest tragedies. This taxonomy breaks tragedies into categories at the macro level based on the pattern of strategic interaction they embody, and further differentiates among tragedies at the micro level based on the shape of the production function for the resulting surplus or deficit. Second, the paper explores underappreciated connections between types of resource-related dilemmas, and highlights the choices that often must be made between two potential tragedies in complex, interdependent settings. Third, the paper shows how the taxonomy developed here offers access to analytic tools for making such choices. The approach taken here is therefore designed to provide greater analytical traction on resource allocation problems, as well as to advance dialogue in this area of property theory.
Number of Pages in PDF File: 85
Date posted: December 12, 2003
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