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 3: The Anticommons Lexicon

Michael A. Heller

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


Michael A. Heller* When I was drafting this chapter, my computer spell-checker kept underlining underuse with red squiggles. Underuse, it seems, is not a word in Word. These squiggles are a signal: the nonexistence of a word can be as telling as its presence. When we lack a term to describe some social condition, it is because the condition does not exist in most people’s minds. When the opposite of overuse is not considered a word, it is unsurprising that we have overlooked the hidden costs of anticommons ownership. We cannot easily fix the problem until we have created a shared language to spot tragedies of the anticommons. That’s the task of this chapter.1 COMMONS AND ANTICOMMONS To understand the underuse dilemma, it is helpful to start with overuse in a commons.2 Aristotle was among the first to note how shared ownership can lead to overuse: ‘That which is common to the greatest number has the least care bestowed upon it . . . each thinks chiefly of his own, hardly at all of the common interest; and only when he is himself concerned as an individual.’3 Why do people overuse and destroy things that they value? Perhaps they are shortsighted or dim-witted, in which case reasoned discussion or gentle persuasion may help. But even the clear-headed can overuse a commons, for good reasons. The most intractable overuse tragedy arises when individuals choose rationally to consume a common pool of scarce resources even though each knows that the sum of these decisions destroys...

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