Academic

Katz on Anticommons

By Lawrence Solum

Larissa M. Katz (Queen's University - Faculty of Law) has posted Red Tape and Gridlock (Canadian Journal of Law and Jurisprudence, Forthcoming) on SSRN. Here is the abstract:

This paper concerns the role of property theory in explaining why so many people around the world control their assets informally, without recourse to the state. According to one influential view, owners and their assets are driven to the informal sector because of deficiencies in the form of ownership on offer in the formal sphere. Where too many people have the power to veto the optimal use of a resource, we have a form of ownership, an anticommons, that is deficient. But this account of informality proceeds from an overly capacious theory of ownership. On this view, an owner?s position is incomplete if she lacks the requisite inputs for a project that represents the optimal use of an object. Further, a person counts as an ?owner,? albeit one locked in an anticommons, merely if she has the power to block the ends that others are able to achieve with an object. I argue that this view of ownership leaves us unable to see that owners are in a radically different position vis-à-vis other owners with the same authority over an object than they are vis-à-vis the state or other non-owners who may be in a position to block an owner?s valuable ends. The integrity of the concept of the anticommons is undermined if we define it in terms of veto-power over the ends for which a resource is optimally suited.

In this paper, I situate the concept of the anticommons within a larger theory of ownership as agenda-setting authority. Seen this way, what is important about an anticommons is its effect on an owner?s means rather than her ends. Whereas owners of private property are never guaranteed the ability to achieve their ends, owners in an anticommons are not even guaranteed the ability to exercise their very means, their agenda-setting authority. From this revised and much narrower concept of the anticommons, what follows is that talk of ?gridlock? in the formal sphere makes sense just as a normative argument about the best distribution of ownership and regulatory authority rather than a conceptual argument rooted in the idea of ownership.

Full post as published by Legal Theory Blog on June 29, 2009 (boomark / email).