Research Handbook on the Economics of Property Law

Research Handbook on the Economics of Property Law

Research Handbooks in Law and Economics series

Edited by Kenneth Ayotte and Henry E. Smith

Leading scholars in the field of law and economics contribute their original theoretical and empirical research to this major Handbook. Each chapter analyzes the basic architecture and important features of the institutions of property law from an economic point of view, while also providing an introduction to the issues and literature.

Chapter 2: Commons, Anticommons, Semicommons

Lee Anne Fennell

Subjects: economics and finance, law and economics, law - academic, law and economics


* Lee Anne Fennell In recent years, theorists interested in the commons have increasingly broadened their gaze to take in two new entries in the property lexicon: the anticommons1 and the semicommons.2 Notwithstanding some excellent work comparing and contrasting these templates and their associated tragedies,3 the literature lacks a cohesive account of how they relate to each other and to larger questions of incentive misalignment. Although scholars sometimes frame the commons, anticommons, and semicommons as conceptually distinct forms,4 each is best understood as a lens for apprehending a single core, challenging fact about resource systems – their need to accommodate multiple uses that are most efficiently pursued at different scales, whether simultaneously or over time.5 This chapter offers a brief introduction to the commons, anticommons, and semicommons models and shows how the three fit together in a unified theoretical framework. I. THE COMMONS Although the underlying idea is much older,6 Garrett Hardin (1968) popularized the phrase ‘tragedy of the commons’ and illustrated it with an example involving an openaccess pasture (ibid., 1244). Reasoning that each herdsman would bear only a fraction of the costs of grazing another steer but would internalize all of the benefits of doing so, Hardin predicted that the pasture would be overgrazed (ibid.). The same problem of incentive misalignment can lead people to underinvest in collective activities (communal farms or public television, for example), take too many resource units out of a given system (as by overfishing), or put too many ‘bads’ into a system...

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