The Concept of the Anticommons: Useful, or Ubiquitous and Unnecessary?
Helena Howe, ed. Concepts of Property in Intellectual Property Law (Cambridge University Press, 2013) (Forthcoming)
30 Pages Posted: 4 Jan 2013 Last revised: 7 Jan 2013
Date Written: January 2, 2013
The work of Michael Heller on the so-called anticommons, or using the more recent moniker, “gridlock”, and the abundance of scholarship that it has generated, is one of the more significant recent concepts that has emerged from American property scholarship. Yet, in my view, Heller’s anticommons rests on a flawed view of private property ownership; indeed, some of his examples of gridlock have little to do with private property as such. Yet, private property is not nearly as absolute as the tragedy of the anti-commons claims or indeed requires. This flawed view, which posits private property as being more or less absolute, then benefits from the counter-balance or corrective provided by the recognition of an anticommons. Once property is seen in its proper light, the superstructure of the anticommons becomes unnecessary at best, obfuscating at worst. Starting with a more balanced view of private property, the central insight of the anticommons literature is already contained in the concept of private property. And the practice of private property has long tried to address the very different and complex challenges of fragmented and adjacent ownership that the anticommons perhaps oversimplifies. Thus at the very least, simplicity of thought demands that we not create unnecessary conceptual structures.
Keywords: anticommons, gridlock, commons, property, private property, intellectual property, patent, copyright, ownership
JEL Classification: K11
Suggested Citation: Suggested Citation