University of Chicago Law School Chicago Unbound Journal Articles Faculty Scholarship 2004 Common Interest Tragedies Lee Anne Fennell Follow this and additional works at: https://chicagounbound.uchicago.edu/journal_articles Part of the Law Commons Recommended Citation Lee Anne Fennell, "Common Interest Tragedies," 98 Northwestern University Law Review 907 (2004). This Article is brought to you for free and open access by the Faculty Scholarship at Chicago Unbound. It has been accepted for inclusion in Journal Articles by an authorized administrator of Chicago Unbound. For more information, please contact [email protected]. Copyright 2004 by Lee Anne Fennell Printed in U.S.A. Northwestern University Law Review Vol, 98, No. 3 COMMON INTEREST TRAGEDIES Lee Anne Fennell* INTRODUCTION No one working in property theory can ignore the anticommons. This upstart doppelganger of the commons began its intellectual life as an imaginary regime in which everyone had the power to prevent everyone else from using a particular resource.' Michael Heller's subsequent con- struction of a recognizable category of "anticommons property" corre- sponding to situations in lived experience2 represented an important advance in the property lexicon that sparked a surge of scholarly interest.' Over a half-dozen years, 4 the term "anticommons" has moved from near- a Assistant Professor, University of Texas School of Law; Associate Professor, University of Illi- nois College of Law (beginning fall 2004). I would like to thank Richard Briffault, Daniel Cole, Reza Dibadj, Cynthia Estlund, Christopher Fennell, Eric Freyfogle, Mark Gergen, Victor Goldberg, Jeffrey Gordon, Michael Heller, Harold Hochman, Douglas Laycock, Lydia Loren, Geoffrey Manne, Thomas Merrill, Edward Morrison, Jonathan Nash, Catherine Sharkey, and Jay Weiser for helpful comments and conversation on earlier drafts, the participants in colloquia at Columbia Law School and Lewis & Clark Law School for insightful ideas and questions, and Rebecca Heinemann for valuable research assistance. All errors are mine. I The notion of an anticommons originated in Frank I. Michelman, Ethics, Economics and the Law of Property, in NOMOS XXIV: ETHICS, ECONOMICS AND THE LAW 3, 6, 9 (1982); see Robert C. Ellick- son, Propertyin Land, 102 YALE L.J. 1315, 1322 n.22 (1993) (describing the anticommons problem and attributing the roots of the idea to a hypothetical regulatory regime developed in Michelman, supra). 2 Michael Heller, The Tragedy of the Anticommons: Property in the Transitionfrom Marx to Markets, 111 HARV. L. REV. 621 (1998). Heller's principal example involved empty storefronts in Moscow, which he posited were the result of a regime in which multiple permissions to use the resource had to be assem- bled from various parties. 3 E.g., Abraham Bell & Gideon Parchomovsky, Of Property and Anti-Property, 102 MICH. L. REV. (forthcoming); James M. Buchanan & Yong J. Yoon, Symmetric Tragedies: Commons and Anticommons, 43 J.L. & ECON. 1 (2000); Reza Dibadj, Regulatory Givings and the Anticommons, 64 OHIO ST. L.J. 1041 (2003); Michael A. Heller & Rebecca S. Eisenberg, Can Patents Deter Innovation? The Anticommons in Biomedical Research, 280 SCIENCE 698 (1998); Shi-Ling Hsu, A Two-Dimensional Frameworkfor Analyz- ing PropertyRights Regimes, 36 U.C. DAVIS L. REV. 813 (2003); Dan Hunter, Cyberspace as Place, and the Tragedy of the DigitalAnticommons, 91 CAL. L. REV. 439, 509-14 (2003); Francesco Parisi et al., Du- ality in Property: Commons and Anticommons, INT'L REV. L. & ECON. (forthcoming), available at http://ssm.com/abstract-224844 [hereinafter Parisi et al., Duality]; Francesco Parisi et al., Simultaneous and SequentialAnticommons, 17 EuR. J.L. & ECON. 175 (2004). 4 Heller's reformulation of the anticommons, Heller, supra note 2, was cited in draft and forthcom- ing form before it was published; hence, the impact of the article predated its publication somewhat. E.g., JESSE DUKEMINIER & JAMES E. KRIER, PROPERTY 56-57 (4th ed. 1998); Mark A. Lemley, The Economics of Improvement in Intellectual Property Law, 75 TEX. L. REV. 989, 1063 n.332 (1997). NORTHWESTERN UNIVERSITY LAW REVIEW obscurity to general use;5 it now flows easily from the lips and pens of nearly every property teacher and scholar in the land.6 The recent concentration of attention on the anticommons has been constructive and revitalizing. Resources under common or interdependent control-from fisheries and grazing lands to metropolitan spatial configura- tions and scientific knowledge-present a daunting array of problems that profoundly affect large populations.' While a rich body of literature on the commons has evolved in response to these concerns,8 the anticommons no- tion provides a fresh and critical perspective on this set of issues. Already, it has yielded important insights into a number of discrete, applied problems associated with multi-player resource dilemmas.9 The anticommons idea 5 See Carol M. Rose, Left Brain, Right Brain, and History in the New Law and Economics of Prop- erty, 79 OR. L. REV. 479, 480 n.2 (2000) (noting the rapid and widespread acceptance and use of the term "anticommons" in the wake of Heller's article). Rose found sixty-six law review articles (not counting Heller's original article) using the word "anticommons" in the LEXIS database since the publi- cation of Heller's 1998 article; now the count exceeds 300 (Mar. 30, 2004 search, LEXIS database of U.S. and Canadian Law Reviews, combined). 6 A discussion of the anticommons in the first chapter of the best-selling property casebook in the country has not only ensured the transmission of the concept to the next generation of law students, but has also assisted the spread of the idea among teachers of property law. See DUKEMINIER & KRIER, su- pra note 4, at 56-57; JESSE DUKEMINIER & JAMES E. KRIER, PROPERTY 56-57 (5th ed. 2002) [hereinaf- ter DUKEMINIER & KRIER 5TH]; see also Peter T. Wendel, The Perfect Blend of Methodology, Doctrine, and Theory, 22 SEATTLE U. L. REV. 1031, 1031 n. I (1999) (identifying the 4th edition of Dukeminier & Krier's Property as "the most widely adopted property casebook" and listing about 120 law schools at which it had been adopted by at least one professor). 7 See, e.g., ELINOR OSTROM, GOVERNING THE COMMONS: THE EVOLUTION OF INSTITUTIONS FOR COLLECTIVE ACTION 3 (1990) (observing that "[m]uch of the world is dependent on resources that are subject to the possibility of a tragedy of the commons"). 8 A crucial catalyst to work in this field was Garrett Hardin, The Tragedy of the Commons, 162 SCIENCE 1243 (1968) [hereinafter Hardin, Tragedy]. Recent collections on the commons include, for example, THE COMMONS IN THE NEW MILLENNIUM: CHALLENGES AND ADAPTATIONS (Nives Dolak & Elinor Ostrom eds., 2003); THE DRAMA OF THE COMMONS (Elinor Ostrom et al. eds., 2002); MANAGING THE COMMONS (John A. Baden & Douglas S. Noonan eds., 2d ed. 1998); and Symposium, The Public Domain, 66 LAW & CONTEMP. PROBS. (James Boyle ed., 2003) (addressing various aspects of the in- formation commons). Many closely related bodies of work bear on the problems of the commons, in- cluding scholarship on collective action, see, e.g., RUSSELL HARDIN, COLLECTIVE ACTION (1982) [hereinafter HARDIN, COLLECTIVE ACTION]; MANCUR OLSON, THE LOGIC OF COLLECTIVE ACTION (1965), game theory, see, e.g., DOUGLAS G. BAIRD ET AL., GAME THEORY AND THE LAW (1994); ERIC RASMUSEN, GAMES AND INFORMATION: AN INTRODUCTION TO GAME THEORY (1989), public and club goods, see, e.g., RICHARD CORNES & TODD SANDLER, THE THEORY OF EXTERNALITIES, PUBLIC GOODS, AND CLUB GOODS (1986); James M. Buchanan, An Economic Theory of Clubs, 32 ECONOMICA 1 (Feb. 1965), and norms, see, e.g., ROBERT C. ELLICKSON, ORDER WITHOUT LAW: HOW NEIGHBORS SETTLE DISPUTES (1991); EDNA ULLMANN-MARGALIT, THE EMERGENCE OF NORMS (1977). 9 The anticommons idea has been applied in settings as diverse as biotechnology and land use. See, e.g., Dibadj, supra note 3 (arguing that anticommons problems can be created by regulatory "givings"); Heller & Eisenberg, supra note 3 (applying anticommons analysis to the biomedical field); Hunter, su- pra note 3, at 509-14 (discussing dangers of a "digital anticommons"); Lydia Pallas Loren, Untangling the Web of Music Copyrights, 53 CASE W. RES. L. REV. 673, 700 & n.130 (2003) (citing Heller's work on the anticommons in discussing the difficulties downstream users of copyrighted music face in obtain- ing multiple clearances); Bell & Parchomovsky, supra note 3 (assessing positive potential of anticom- 98:907 (2004) Common Interest Tragedies has thrown into bold relief theoretical and practical problems that had pre- viously languished unnoticed in the background, and has generated renewed attention and excitement for addressing difficult problems involving the al- location of resources. Despite its success, the emerging concept of the anticommons requires further clarification and refinement if it is to serve the diverse array of pur- poses for which it is now being deployed. This Article begins with a quite basic question that has not received a satisfactory answer in the literature: What distinguishes the problems associated with the anticommons from those associated with the old-fashioned tragedy of the commons? Significantly, some of the key criteria scholars have offered for identifying an anticommons and distinguishing it from an ordinary commons collapse upon scrutiny, as soon as one moves from the pure or prototypical versions of these forms of property to applied incarnations of them. The fragility of the boundaries be- tween commons and anticommons suggests a deeper conceptual blurring that is likely both to impede the development of meaningful theoretical ap- proaches and to hamper efforts to devise appropriate legal responses to real- world resource-allocation problems. Pushing a bit on the anticommons idea, then, leads to a broader rethinking of the nature of commons dilemmas and the prospects for their solution. These efforts open up the larger question that takes center stage here: How might the universe of common and interde- pendent resource problems be most usefully carved up? In addressing that question, this Article makes three significant contri- butions.