The University of Chicago Law Review VOLUME 53 NUMBER 3 SUMMER 1986 1986 by The University of Chicago The Comedy of the Commons: Custom, Commerce, and Inherently Public Property Carol Roset I. INTRODUCTION: THE CONUNDRUM OF "PUBLIC PROPERTY" The right to exclude others has often been cited as the most important characteristic of private property.' This right, it is said, makes private property fruitful by enabling owners to capture the full value of their individual investments, thus encouraging every- one to put time and labor into the development of resources. 2 Moreover, exclusive control makes it possible for owners to iden- tify other owners, and for all to exchange the fruits of their labors, until these things arrive in the hands of those who value them tProfessor of Law, Northwestern University. I have foisted earlier versions of this pa- per on numerous patient friends and colleagues. For their helpful comments and criticism, I particularly thank Jonathan Entin, Victor Goldberg, Mark Grady, Hendrik Hartog, Henry Hansmann, Richard Helmholz, William Marshall, Thomas Merrill, Stephen Presser, George Priest, and the indefatigable Cass Sunstein. 1 2 WILLIAM BLACKSTONE, COMMENTARIES *2 (property defined as "that sole and des- potic dominion . over the external things of the world, in total exclusion of the right of any other individual in the universe"); see also Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435 (1982) (the right to exclude is the most valuable element of property). 1 2 W. BLACKSTONE, supra note 1, at *4 (no one would devise conveniences to make life more "agreeable" unless s/he could keep them permanently); id. at *7 ("who would be at the pains of tilling [the earth] if another might ... seise upon and enjoy the product of his industry, art, and labour?"). HeinOnline -- 53 U. Chi. L. Rev. 711 1986 The University of Chicago Law Review [53:711 most highly-to the great cumulative advantage of all.3 Thus ex- clusive private property is thought to foster the well-being of the community, giving its members a medium in which resources are used, conserved and exchanged to their greatest advantage. There is nothing new about this set of ideas; Richard Posner, a modern- day proponent of neoclassical economics, remarks that the wealth- enhancing value of property rights "has been well known for sev- eral hundred years."'4 Posner cites Blackstone for this proposition, 5 and indeed, since the advent of eighteenth-century classical eco- nomics, it has been widely believed that the whole world is best managed when divided among private owners. ' ' The obverse of this coin is the "tragedy of the commons. 1 When things are left open to the public, they are thought to be wasted by overuse or underuse. No one wishes to invest in some- thing that may be taken from him tomorrow, and no one knows whom to approach to make exchanges. All resort to snatching up what is available for "capture" today, leaving behind a wasteland.' From this perspective, "public property" is an oxymoron: things left open to the public are not property at all, but rather its antithesis. 3 Holderness, A Legal Foundation for Exchange, 14 J. LEGAL STUD. 321, 321-22, 344 (1985) (narrow and specific assignment of rights necessary for exchange). 4 RICHARD POSNER, ECONOMIC ANALYSIS OF LAW 28 (2d ed. 1977). Posner is speaking here only of property as an inducement to good management, but points out the importance of transferability a few paragraphs later. See id. at 28-29. 5 Id. at 28 n.3 (citing 2 W. BLACKSTONE, supra note 1, at *4, *7); Blackstone also praises "that wise and orderly maxim, of assigning to every thing capable of ownership a legal and determinate owner." 2 W. BLACKSTONE, supra note 1, at *15. 8 See, e.g., JEREMY BENTHAM, THE THEORY OF LEGISLATION, CIVIL CODE pt. 1, chs. 7-9 (Ogden ed. 1931). The great 18th-century economist Adam Smith also mentioned in passing that it is only where no one has anything worth more than two or three days' labor that there is no need to protect private property. ADAM SMITH, THE WEALTH OF NATIONS 669-70 (Modern Library ed. 1937). See also JOSEPH ANGELL, A TREATISE ON THE RIGHT OF PROPERTY IN TIDE WATERS AND IN THE SOIL AND SHORES THEREOF 17 (1826), where this American jurist follows Blackstone in arguing that all things capable of ownership should be assigned an owner, with those things incapable of exclusive ownership being assigned to the sovereign. For a modern statement of this idea, see Yandle, Resource Economics: A Property Rights Perspective, 5 J. ENERGY L. & POL'Y 1, 1-2 (1983) (natural progression toward individual ownership of scarce resources). For a challenge to the view that private ownership is pre- sumptively the most efficient form of management, see Kennedy & Michelman, Are Prop- erty and Contract Efficient?, 8 HOFSTRA L. REV. 711 (1979-80). The phrase and the classic modern statement of the position come from Hardin, The Tragedy of the Commons, 162 SCIENCE 1243 (1968), reprinted in ECONOMIC FOUNDATIONS OF PROPERTY LAW 2 (B. Ackerman ed. 1975). 8 Id.; see also Holderness, supra note 3, at 344 ("ordinary forms of social interaction, both within and beyond trade and commerce, could not take place if property rights were inconsistent or ill defined"). HeinOnline -- 53 U. Chi. L. Rev. 712 1986 1986] Custom, Commerce, and Public Property Thus it is peculiar to find a longstanding notion of "public property" in the law of the western world. The Romans, whose le- gal thinking greatly influenced later European law, were suffi- ciently interested in "public property" to separate it into at least four categories.9 And despite the power of the classical economic argument for private property, a curious cross-current has continu- ally washed through American law. Our legal doctrine has strongly suggested that some kinds of property should not be held exclu- sively in private hands, but should be open to the public or at least subject to what Roman law called the "jus publicum": the "public 10 right. Moreover, this view is not merely a vestige of premodern thought; there is currently an extensive academic and judicial dis- cussion of the possibility that certain kinds of property ought to be public. In recent years, the most striking version of this "inherent publicness" argument has appeared in a series of cases expanding public access to waterfront property.11 The land between the low and high tides has traditionally been considered "public property," or at least subject to a public easement for navigational and fishing purposes. 12 But some modern courts have stretched this easement to include a new use-recreation-and have expanded its area from the tidelands to the dry sand areas landward of the high-tide I For the Roman law categories of public property, see Coquillette, Mosses from an Old Manse: Another Look at Some Historic Property Cases about the Environment, 64 CORNELL L. REv. 761, 801-03 (1979); MacGrady, The Navigability Concept in the Civil and Common Law, 3 FLA. ST. U.L. REv. 511, 518 (1975). For applications of these classifications, see Deveney, Title, Jus Publicum, and the Public Trust: An Historical Analysis, 1 SEA GRANT L.J. 13, 29-36 (1976); Wiel, Natural Communism: Air, Water, Oil, Sea, and Sea- shore, 47 HARv. L. REV. 425 (1934); Winett, Contemporary Water Pollution Cases and Ro- man Law, III TEMp. ENvTrL. L. & TECH. J. 31 (1984). 10 This has been argued forcefully by Molly Selvin and Harry Scheiber, whose recently published historical studies argue that 19th-century American law was replete with notions of "public rights," some of which were characterized as property rights. Scheiber, Public Rights and the Rule of Law in American Legal History, 72 CAL.L. REv. 217 (1984); Selvin, The Public Trust Doctrine in American Law and Economic Policy, 1789-1920, 1980 Wis. L. REv. 1403. For the "jus publicum" (or "publici juris") language, see Deveney, supra note 9, at 29-31; see also Commonwealth v. Alger, 61 Mass. (7 Cush.) 53, 76 (1851), discussed in Scheiber, supra, at 222. "' See, e.g., City of Berkeley v. Superior Court, 26 Cal. 3d 515, 606 P.2d 362, 162 Cal. Rptr. 327, cert. denied, 449 U.S. 840 (1980); Gion v. Santa Cruz, 2 Cal. 30 29, 465 P.2d 50, 84 Cal. Rptr. 162 (1970); Borough of Neptune City v. Borough of Avon-by-the-Sea, 61 N.J. 296, 294 A.2d 47 (1972); State ex rel. Thornton v. Hay, 254 Or. 584, 462 P.2d 671 (1969); Seaway Co. v. Attorney General, 375 S.W.2d 923 (Tex. Civ. App. 1964). " See, e.g., Martin v. Waddell, 41 U.S. (16 Pet.) 366, 412-14 (1842); cf. MacGrady, supra note 9, at 566-68 (the "public" character of this land is a creation of the 17th and 18th centuries). HeinOnline -- 53 U. Chi. L. Rev. 713 1986 The University of Chicago Law Review [53:711 mark."3 These new cases extrapolate from older precedents in which the public acquired-or allegedly reasserted-claims to certain types of property, most notably roadways and lands under naviga- ble waters. Like the older precedents, the new beach cases usually employ one of three theoretical bases: (1) a "public trust" theory, to the effect that the public has always had rights of access to the property in question, and that any private rights are subordinate to the public's "trust" rights; 4 (2) a prescriptive or dedicatory the- ory, by which a period of public usage gives rise to an implied grant or gift from private owners;' 5 and (3) a theory of "custom," where the public asserts ownership of property under some claim so ancient that it antedates any memory to the contrary."" These theories of increased public access to shores and water- ways have garnered a vocal but decidedly mixed reaction.