Lee Anne Fennell

Commons, Anticommons, Semicommons

This handbook 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 suggest that each of these templates 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.

Property and Half-Torts

The idea that a tort can be split analytically into two parts - risk and harm - underlies a great deal of torts scholarship. Yet the notion has been all but ignored by property scholars employing Calabresi and Melameds famous entitlement framework. Thus, in discussing an entitlement to pollute, scholars rarely distinguish inputs to pollution (a factorys emission of fumes from a smokestack) from outcomes of pollution (a neighbors grimy linens or respiratory distress). Instead, pollution is viewed as a single unified event that one party or the other receives an entitlement to control. This failure to conceptually separate risky inputs from harmful outcomes has led to imprecise and inaccurate ways of thinking and talking about entitlements. Property theory has suffered as a result, as has our understanding of how property and torts relate to each other. In this paper, I make a start at bringing the concept of the divided tort - here termed half-torts - into the property picture. Doing so generates a reformulated entitlement framework that fits more comfortably with moral intuitions, highlights the potential roles of luck and self-help in producing outcomes, and clarifies the available menu of alternatives for addressing property conflicts. The approach taken here advances a functional view of property as a container designed to collect inputs and outcomes with some regularity.

Fee Simple Obsolete

Urbanization has dramatically altered the way in which land generates and forfeits value. The dominant economic significance of patterns of land use and the opportunity costs of foregone complementarities have made the capacity to reconfigure urban property essential. Yet the architecture of our workhorse tenure form — the fee simple — is ill-suited to meet these challenges. The fee simple grants a perpetual monopoly on a piece of physical space — an ideal strategy when temporal spillovers loom large, interdependence among parcels is low, most value is produced within the four corners of the property and cross-boundary externalities come in forms that governance strategies can readily reach. But times have changed. Categories of externalities that were once properly ignored by the fee simple have become too important to continue neglecting. This paper argues for alternative tenure forms that would move away from the endless duration and physical rootedness of the fee simple.

The Distributive Deficit in Law and Economics

Welfarist law and economics ignores the distributive consequences of legal rules to focus solely on efficiency, even though distribution unambiguously affects welfare, the normative maximand. The now-conventional justification for disregarding distribution is the claim of tax superiority: that the best means of influencing or correcting distribution is via tax-and-transfer. Critics have observed that optimal redistribution through tax may be politically infeasible, but have generally overlooked the rejoinder that the same political impediments to redistribution through tax will block redistribution through legal rules. This “invariance hypothesis,” as we label it, holds that there is only one distributive equilibrium and that Congress will offset through tax any deviations from it. We highlight the centrality of invariance to the conventional economic wisdom and assert that it is just as relevantly false as the zero transaction cost assumption. In contexts where political impediments to tax-based redistribution exceed the impediments to doctrinal redistribution, it may be possible to increase welfare by redistributing outside of tax. Welfarists should, therefore, devote as much scholarly attention to the “political action costs” of redistribution as they do to transaction costs.

Fairness in Law and Economics

Along with an original introduction by the editors this is a must-have volume that will appeal to students, academics and practitioners who are interested in this exciting field.