Natural Resources, Congestion and the Feminist Future: Aspects of Frischmann's Theory of Infrastructure Resources

33 Pages Posted: 9 Apr 2008

See all articles by Marc R. Poirier

Marc R. Poirier

Seton Hall University - School of Law

Abstract

Brett Frischmann has developed an intriguing general theory of fundamental infrastructure resources, arguing that they should be managed through open and nondiscriminatory access, with no private property-based right to exclude. He relies on the difficulty of developing accurate demand side signals for resources that are reused for nonrival and partially nonrival goods. The theory seems insightful as to information and the internet; but is significantly incomplete when applied to natural resources and environmental services, a third category which Frischmann includes in his theory. Natural resources and environmental services are typically congestible from normal uses that are centrally important. Consequently, open, nondiscriminatory access must be combined with other management strategies. The essay uses New Jersey's public trust doctrine as applied to beach access to demonstrate this point.

The essay explores two other useful consequences of Frischmann's theory. It suggests that whatever promise there is in cultural environmentalism as a direction for intellectual property, it is unlikely to include quantification of the type being attempted with environmental services. As Frischmann argues, we cannot quantify the future value of these resources. Frischmann's theory is also applicable to the issue, in environmental policy, of intergenerational obligations. Here again, while short term quantification is plausible, it become problematic in the more distant future. The essay shows parallels between Frischmann's theory and arguments by Eva Feder Kittay on caregiving and Greg Alexander on communtarian obligations inherent in property, and suggests that Frischmann's theory, applied intergenerationally, sheds new light on moral arguments for stewardship obligations for the environment.

Keywords: natural resources, environmental services, intergenerational equity, cultural environmentalism, intellectual property, public trust doctrine, beach access, infrastructure, limited access commons, commons, property, information, internet

Suggested Citation

Poirier, Marc R., Natural Resources, Congestion and the Feminist Future: Aspects of Frischmann's Theory of Infrastructure Resources. Ecology Law Quarterly, Vol. 35, 2008, Seton Hall Public Law Research Paper No. 1118310, Available at SSRN: https://ssrn.com/abstract=1118310

Marc R. Poirier (Contact Author)

Seton Hall University - School of Law ( email )

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