Duality in property: Commons and anticommons

Commons and Anticommons problems are the consequence of symmetric structural departures from a unified conception of property. In this paper, we endeavor to provide a dual model of property, where commons and anticommons problems are the consequence of a lack of conformity between use and exclusion rights. The general model is then extended to consider the different equilibria obtained under vertical and horizontal cases of property fragmentation. The paper concludes with a hypothesis of legal rules for promoting unity in property and suggests a list of possible areas of application. A new term of art has recently gained acceptance among law and economics scholars of property law: the anticommons. The concept, first introduced by Michelmann (1982) and then made popular by Heller (1998 and 1999), is a mirror-image – in name and in fact – of Hardin’s (1968) well known tragedy of the commons. In situations where multiple individuals are endowed with the privilege to use a given resource without a cost effective way to monitor and constrain each other’s use, the resource is vulnerable to overuse: a problem known as the tragedy of the commons. Symmetrically, when multiple owners hold rights to exclude others from a scarce resource and no one exercises an effective privilege of use, the resource might be prone to underuse: a problem known as the tragedy of the anticommons. We build upon this definition of the anticommons, which still lacks an accepted general formalization in the literature. We endeavor to provide a dual model of property, where commons and anticommons problems are shown to result from symmetrical structural departures from a unified conception of property. Specifically, both problems result from a lack of conformity between use and exclusion rights. We then extend the basic model to consider vertical and 1 Professor of Law & Co-Director, J.M. Buchanan Center for Political Economy, Program in Economics and the Law, George Mason University; Visiting Professor, University of Virginia, School of Law (USA). 2 Professor of Economics & Chair, Economics Department, University of Würzburg (Germany). 3 Center for Advanced Studies in Law and Economics, Faculty of Law, Ghent University (Belgium). The authors would like to thank Clay Gillette, Richard Merrill, Andrew Sellgren and Paul Stephan, III for extremely helpful conversations, comments and advice. An earlier draft of this article was circulated as UVA School of Law, Law & Economics Working Paper No. 00-16. 4 In a related paper, we utilize this conception of unified property to explain the rise and fall of functional conceptions