eprint Theoretical Inquiries in Law The Cegla Institute for Comparative and Private International Law The Buchmann Faculty of Law The Dynamic Analytics of Property Law Michael a heller Volume 2 January 2001 Number 1
The dynamic analytics of P operty Law Michael A. heller' The standard property trilogy of private, commons, and state has become so outdated that it now impedes imagination and innovation at the frontiers of ownership This essay suggests two appi creating new ideal types and synthesizing existing ones-that may help update our static property metaphors. Using these dynamic approaches to property analytics, legal theory can move beyond polarizing have made jurisprudential debates unsolvable and rendered concrete problems invisible Metaphors in law are to be narrowly watched, for starting as devices to liberate thought, they end often by enslaving it.' Justice Benjamin Cardozo(1926) ODUCTIO Property theory scholarship works cyclically-reasoning from real-world contests over scarce resources, to analytic tools that translate these struggles into useful conceptual terms, to jurisprudential debates regarding the rightness of resulting allocations, to practical politics that implement one property regime or another, and then back to the on-the-ground struggles which refuse to hold still. What happens if the static categories of property scholarship have gone astray and familiar conceptual terms have failed to keep up with emerging property relations? Consider the familiar analytic tools of property theory: for example Professor of Law, University of Michigan. Thanks to Hanoch Dagan, Daphna Lewinson-Zamir, Ariel Porat, and the participants at the Cegla Institute Conference on Legal Scholarship. The University of Michigan Law School Cook Endowment provided generous research support I Berkey v. Third Ave Ry Co., 244N,Y. 84, 94, 155N E 58, 61(1926)
Theoretical inquiries in La Vol.2:79 2001] 80 The Dynamic Analytics of Property Law Blackstone's image of private property as"sole despotic dominion", 2 analysis of ownership, and typologies of justificatory arguments Hardins metaphor of the "tragedy of the commons and, more generally Tinkering with these matters has become a sort of benign addiction the division of ownership into a trilogy of private, commons, and state forms Each of these concepts has a distinguished pedigree and certain present In Becker's view, an analytic addiction is at least"benign, rather usefulness, but each also imposes a cost when it renders new forms of property pemicious, because"we would lose a great deal of clarity and rigor if [t invisible. This essay argues that property theory scholarship would benefit onceptual apparatus] were ignored. "6 Still, for Becker, the conceptual front from a more dynamic approach to analytics, one better suited to supporting has been adequately covered- it is good enough -and the main work for property theory lies elsewhere innovations at the frontiers of property Similarly, Jeremy Waldron suggests in his jurisprudential work a good enough approach to property analytics. As he puts it, the standard analytic framework"respects both the technician's sensitiv SHOULD ANALYTICS BE DYNAMIC? legal detail ohilosopher's need for a set of well-understood"ideal types' to serve as the focus of justificatory debate. ""In this view, a dynamic approach to ptoperty indeed, challenge the premise of this essay that analytics can and should be approached more dynamically. If analytics are understood just to mean stable, transparent, and neutral-seeming ideal types that allow people to argue workable taxonomy, then little fundamental would be gained by a renewe productively with each other regarding more substantive issues focus on conceptual work; indeed, analytic property theory would have a marginal role, simply cutting and pruning the well-tended vineyard of e roperty theorists also challenge the raison d' etre of property analytics om the other end of the spectrum, deploying what I call the never property terms. Further work on property concepts would quickly translate good enough approach. This approach rejects not just the existing analytic into mind-numbing parsing of taxonomic detail in a high Germanic style framework, but also the possibility of an improved version. For example, I call this taxonomic view of property analytics the good enough approach Thomas Grey once suggested that private property is, in the end, indefinable According to this view, we just need a reasonably consistent and intelligible in any useful or determinate way and that the categories we use to talk with common language of property that is good enough to sustain the more one another collapse on themselves upon closer examination. In this view, important normative and practical debates that follow. To give an example, atic or dyn be understood to be ab note Lawrence Becker's plea for more work on pluralist justifications for mystifying real power relations that, in essence, resist categorization. Like property in an article where he bluntly summarizes the current state of the good enough approach, the never good enough criticism does not seem to leave much room for further work on property analytics So the challenge from existing property theory is substantial: to thread What has been left undone? What has been done to death?. [An etween, on the one hand, a view that the taxonomies we have already are inquiry that has] been done enough(perhaps even overdone).is the od enough and normatively empty so further work amounts to, at best, a extensive recapitulation and dissection of the now-standard conceptual analysis of property theory: Hohfeld,'s analysis of rights, Honore's 5 Lawrence C. Becker, Too Much Property, 21 Phil& Pub. Aff. 196, 197-98(1992) 6 d 2 2 William Blackstone, Commentaries on the Laws of England"2 (Univ. of Chicago 7 Jeremy Waldron, Property Law, in A Companion to Philosophy of Law and Legal heory 3(Dennis Patterson ed, 1996). Press ed.1979)(176-1769) 3 Garrett Hardin, The Tragedy of the Commons, 162 Science 1243, 1244-45(1968). 8 See, e.g, Waldron, supra note 4, at 331-32("As categ of social, economic 4 See, e.g., Duncan Kennedy Frank I. Michelman, Are Property and Contract or political science, it is clear that these ideas of a private property system,a Eficient?, 8 Hofstra L. Rev. 711(1980); Frank I Michelman, Ethics, Economics collective property system, and a common property system are very much ideal and the Law of Property, in 24 NOMOS: Ethics, Economics and the Law 3, 5-6(J typic categories. It is also clear to quote Weber, 'none of these ideal types. is Roland Pennock& John W. Chapman eds, 1980); Jeremy Waldron, What is Private sually to be found in historical cases in pure'form. )(citing 1 Max Weber, Property 5 Oxford J Legal Stud. 313(1985) Economy and Society 216( Guenther Roth& Claus Wittich eds, 1968) 9 Thomas C Grey, The Disintegration of Property, 22 NOMOS 69, 69(1980)
Theoretical inquiries in Law [Vol.2:79 The Dynamic Analytics of Property La benign addiction, and, on the other hand, a position that conceptual work A. Private Property on closely observing on-the-ground, emerging property fray at the edges. For property theorists(and for ordinary layfolk"),the relations; asking whether the existing framework facilitates understanding of term seems reasonably coherent and capable of simple definition, despite and support for these new forms of ownership; and proposing new analytic Grey's arguments, For example, Michelman focuses his definition on rules tools where the present ones fail. Because people are constantly creating for initial acquisition and reassignment. He defines sole ownership to mean new types of property, I suggest that there remains substantial room for the rules must allow that at least some objects of utility or desire can be fully analytic innovation in property scholarship, innovation which, in turn, will owned by just on"and freedom of transfer to mean"owners ar carry normative punch when it redirects jurisprudential and practical debates immune from involuntary deprivation or modification of their ownership to new questions rights and empowered to transfer their rights to others at will, in whole or in part. "Similarly, Jeremy Waldron defines priv operty"around the idea that contested resources are to be regarded as separate objects each assigned I. THE PROPERTY TRILOGY AND ITS DISCONTENTS to the decisional authority of some particular individual (or family or To illustrate my argument more concretely, the discussion will focus on the These standard definitions can be multiplied many times over, but all preeminent analytic tool of property theory, that is, the well-worn trilogy ariake of and help keep current William Blackstone's endlessly repeated of ownership forms-private, commons, and state property. While I focus definition of private property as"that sole and despotic dominion which here on the trilogy, any of the other core concepts of property theory, such one man claims and exercises over the extermal things of the world as the bundle of rights"image, could equally sustain my argument, a point total exclusion of the right of any other individual in the universe. I7 While i discuss briefly in conclusion the image of sole dominion has never adequately described any real world The trilogy of ownership forms has long formed the focal point for property ownership, as even Blackstone recognized, the idea rings through normative and practical property debates. As Frank Michelman states, "We the ages and continues to block clear thinking about private property need some reasonably clear conceptions of regimes that are decidedly not Private property, with which [private property] can be compared. "This process of working from ideal types pervades property theory stretching back Locke's discussion of the State of Nature and forward to the modern law and-economics debates. Today, liberals and utilitarians deploy the trilogy in 12 See generally Michael A Heller, The Boundaries of Private Property, 108 Yale LJ calling for a tilt towards private property; socialists disparage private property l163(1999 and advocate more state control; and communitarians press for expanding 13 See Bruce Ackerman, Private Property and the Constitution 98-100(1977) the scope of commons property. Theorists push reforms towards one type or (discussing the layperson' s view of property as thing-ownership) the other, but none subjects the trilogy itself to much challenge. The trilogy 15 Michelman, supra note 4, at 4-5. These definitions hearken back to and build another is so entrenched as to seem almost natural, beyond serious contestation or steady part of the standard conceptual apparatus of property, crystallized in the elaboration. Before we go about constructing new ideal types or synthesizing Hohfeld-Honore picture of property as a"bundle of rights. "Wesley N.Hohfeld existing ones, let us briefly recapitulate the trilogy itself. So, what are these Fundamental Legal Conceptions as Applied in Judicial Reasoning and Other Legal ideal types? Essays 96(Walter W. Cook ed, 1923); A M Honore, Ownership, in Oxford Essays in Jurisprudence 107(AG. Guest ed, 1961). See also infra text accompanying notes 30-32(discussing the bundle of rights metaphor) 16 Waldron, supra note 7, at 6 18 See Robert W. Gordon, Paradoxical Property, in Early Modern Conceptions of 10 See, e.g,Jeremy Waldron, The Right to Private Property 44(1988) Property 96,96(ohn Brewer& Susan Staves eds, 1996)(discussing the ever-present I1 Michelman, supra note 4, at 5 thicket of restrictions Blackstone recognized in his day)
Theoretic [vol.2:79 The Dynamic Analytics of Property Law B Commons Property C State Commons property has been the residual category that theorists usually use when they describe a regime that is not private or state property. Michelman State property, also sometimes called collective property, can be defined as a property regime in which defines a commons property regime as one where "there are never any exclusionary rights. All is privilege. People are legally free to do as they [i]n principle, material resources are answerable to the needs and wish, and are able to do, with whatever objects(conceivably including in the [commons]. "9 To restate, this definition n purposes of society as a whole, whatever they are and however they means that every are determined, rather than to the needs and purposes of particul individual may use any object of property and no individual has the right to individuals considered on their own no individual has such an intimate association with any object that he can make decis Although this is not the place to elaborate the point, a useful distinction without reference to the interests of the collective 2 Ons about its use could be drawn between the utilitarians'image of commons property and the liberals notion of a State of Nature: the two images share a core definition As Jeremy Waldron notes, a state property regime is similar to commons everyone has privileges of inclusion and no one has rights of exclusion property in that no individual stands in a specially privileged position with but have different emphases and contexts. Liberal property theorists usually regard to any resource, but is distinguished from commons property in deploy the State of Nature image to describe a pre-political common that the state has a special status or distinct interest- that of owner of which then evolves towards private property; while the commons metapho all resources, able to include or exclude all individuals according to the of modern law-and-economists reflects their goal of explaining the marginal rules of that particular state.2 In other words, the collective, represented evolution towards private property in specific scarce resources, such as the usually by the state, holds all rights of exclusion and is the sole locus of enclosure of the English commons. For all these scholars, the transition decision-making regarding use of resources. So, a subsidiary set of questions commons to private property is the paradigmatic problem that property need to be answered to specify a state property regime fully, including what seeks to explain. is the"collective interest"and what procedures will be used to apply that conception to a particular case Today, for most property theorists, state property has become a less and less important category, particularly since the decline of socialist states and rise of the worldwide movement towards privatization. 4 For liberal, communitarian, and utilitarian theorists alike, the trilogy may elman, supra note 4, at 5. effectively reduce down to a dichotomy private and commons -so 20 See Waldron, supra note 4, at 329(many philosophers have used the idea of that all theoretical work takes place in the interplay of these two regimes common property to characterize the initial situation of men in relation to resources For example, Michelman says that a commons can be seen as"a scheme in the so-called"State of Nature"); see, e.g, Blackstone, supra note 2, 88 2-8: 2 John Locke, Two Treatises of Government at ch. V( Peter Laslett rev. ed. 1963) of universally distributed, all-encompassing privilege that is opposite to (3d ed. 1698)(Of Property), Rose uncovers the contradictions that these narratives obscure in moving across the commons/private boundary, Carol M. Rose, Property as Storytelling: Perspectives from Game Theory, Narrative Theory, Feminist Theory, 22 Waldron, supra note 4, at 328-29, 329 n 45 2 Yale J. L& Human. 52 (1990) sO C.B. MacPherson, Property ee, e. g, Terry L. Anderson pJ Hill, The Evolution of Property Rights: A Study Mainstream and Critical Positions 5-6(1978)(substantially the same definition of tate property) of the American West, 12 J. L. Econ. 163( 1975)(westem land); Harold Demsetz, 23 Waldron, supra note 4, at 329 Toward a Theory of Property Rights, 57 Am. Econ. Rev. 347, 354(1967)( fur trappers); H. Scott Gordon, The Economic Theory of a Common-Property Resource 24 Property theorists always recognize that any actual regime will contain all elements The Fishery, 62 J. Pol. Econ. 124(1954); D. Bruce Johnsen, The Formation and of the trilogy we have identified, but they maintain the distinctions among the types Protection of Property Rights Among the Southern Kwakiutl indians, 15 J. Legal See, e.g., Robert C. Ellickson, Property in Land, 102 Yale L.J. 1305, 1381, 1381 tud. 41( 1986)(potlaching): Arthur F. McEvoy, The Fisherman's Problem(1986) n342(1993)(noting that large U.S. cities devote about 25% of developed land to fisheries); John Umbeck, A Theory of Contract Choice and the California Gold a ghways and streets and 10% more to public parks); see also id. at 1397 n413 Rush, 20 J.L.& Econ. 421(1977)(gold fields) ommenting that both law-and-economics and critical legal scholars have come to share the view that land regimes inevitably will(and implicitly should)mix private and public elements)
Theoretical Inquiries in Law ol2:79 2001] The Dynamic Analytics of Property Law [private property]. "25 Similarly, the economist Yoram Barzel notes that the of property. The standard trilogy misses what is most distinctive, perplex standard economic analysis of property has"tended to classify ownership int about these regimes, which is the"property governance"rules status into the categories all and none, the latter being termed'common people are creating for themselves in new ownership forms, forms not implied perty'-property that has no restrictions put on its use, 26 either by the image of sole despotic dominion or of a commons. Let us consider constructive and integrative approaches to property analytics in turn IlL. Two APPROACHES TO THE PROPERTY TRILOGY A. The Constructive Approach While there are many ways to go outside the usual trilogy, this section will set The ideal-typic trilogy straight-jackets analysis. For example, when people out just the anticommons ideal type, Consider new areas for property law, share access to resources in a commons and then proceed to waste the such as the problem of spurring private investment in biomedical research or resources through overuse, theorists see an instance of Hardin, s metaphor of creating well-functioning markets in post-socialist economies. In both cases. the"tragedy of the commons"-another core concept of property law. By recent reforms aimed to create well-functioning private property regimes, but looking to the trilogy, the liberals and utilitarians see conservation solutions instead had surprising results, in part by threatening to strand resources in that require either privatization or state control, while communitarians search wasteful uses, to deter rather than promote innovation and production. By for those limited circumstances in which close-knit groups can avoid tragedy drawing the wrong property boundaries around resources, by fragmenting The tragedy of the commons metaphor may be deployed simultaneously to ownership too much, it turns out that privatization can destroy resource provide moral justification for private property regimes, to promote state productivity in enduring ways. To capture these unexpected results from regulation, and to disparage the practical possibilities for cooperative use of excessive privatization, I have proposed the idea of anticommons property, an image that goes beyond the old trilogy and crystallizes emerging real-world As we shall see, there are at least two productive ways to move beyond property relations that had previously remained invisible the existing trilogy. First, there is what I call a constructive approach, which Anticommons property can be best understood as the mirror image of responds to real world property developments by offering a new ideal type commons property. A resource is prone to overuse in a tragedy of the For example, I have developed"anticommons" property as a fourth ideal commons when too many owners each have a privilege to use a given type, a type that leads to a new set of normative questions and practi resource, and no one has a right to exclude others. By contrast, a resource possibilities for property. One consequence of adding this ideal type of is prone to underuse in a tragedy of the anticommons when multiple owners to give voice to previously inchoate each have a right to exclude others from a scarce resource and no one has worries about the progressive march of privatization, to explain why too an effective privilege of use. In theory, in a world of costless transactions, much private property can be as costly as too little. Second, the existing people could always avoid common or anticommons tragedy by trading trilogy can be challenged using what I call an integrative approach that brings their rights. In practice, however, avoiding tragedy requires overcoming together elements of the existing ideal types and reveals characteristics of transaction costs, strategic behaviors, and cognitive biases of participants them that are quite distinct. Consider here emerging property regim with success more likely within close-knit communities than among hostile that Carol Rose identifies as "limited commons property"and property relations that Hanoch Dagan and I call the liberal commons"-emerging real-world property types that constitute what we believe may be the future 27 Hanoch Dagan Michael A. Heller, The Liberal Commons, 110 Yale LJ. 549 (2001): Carol M. Rose, The Several Futures of Property: Of Cyberspace and Folk 28 The material in this section that defines anticommons property is drawn substantially 25 Michelman, supra note 4, at 5, 9(. a scheme of universally distributed, all from Michael A Heller, The Tragedy of the Anticommons: Property in the Transition encompassing privilege is, precisely a commons, a type of regime ([state of nature) from Marx to Markets, 111 Harv. L Rev. 621(1998), while the biomedical research at is opposite to [private property]. )(italics omitted); see also Waldron, supra ample comes from Michael A Heller Rebecca S Eisenberg, Can Patents Deter Innovation? The Anticommons in Biomedical Research, 280 Science 698( 1998) 26 Yoram Barzel, Economic Analysis of Property Rights 71( 1989)
Theoretical inquiries in Law vo.2:79 2001] The dynamic Analytics of Property Law strangers. Once an anticommons emerges, collecting rights into usable biases of researchers. But there is little public outcry to fix a biomedical ate property is often brutal and slow anticommons because the price people pay is in the form of lifesaving drugs My definition of anticommons property is constructed in such a way as that are not discovered, Too many people hold intellectual property rights to render it useful for describing emerging real-world property regimes that let them block each other from carrying out the necessary research For example, to have an anticommons I do not require that everyone hold Like the transition to free markets in post-socialist economie rights of exclusion, but only that a limited group of owners be able to block privatization of biomedical research offers both promises and risks. It one another. Waste through nonuse can occur even when a few actors have promises to spur private investment, but risks creating a tragedy of rights of exclusion in a resource that each wants to use. Also, my definition the anticommons through a proliferation of fragmented and overlapping does not require that nonuse be optimal. There are many situations in which property rights. Constructing the anticommons ideal type helps to show nonuse results from excessive fragmentation, but is not socially desirable why privatization must be more carefully deployed if it is to serve the For most resources that people care about, some level of use is preferable to public goals of biomedical research and post-socialist transition. Otherwise, nonuse, and an anticommons regime is a threat to, rather than the epitome of, in the biomedical context more upstream rights may lead paradoxically to productive use. Finally, an anticommons may be created even when multiple fewer useful products for improving human health, and in post-socialism, rights of exclusion are not formally granted through the legal system excessI ve privatization can have the unintended effect of turning people al and economic scholars have mostly overlooked this tragedy, against the benefits of market reforms. Adding the idea of anticommon part because it did not fit within the familiar property trilogy, but waste property to our analytic toolkit-going beyond the familiar trilogy -helps through underuse can appear whenever governments create new property to reveal precisely how privatization can cause an unexpected, new form of rights. I developed the idea initially from closely observing privatization resource tragedy as it solves an old, familiar dilemma in post-socialist economies. One promise of transition to markets was that new entrepreneurs would fill stores that socialist rule had left bare. Yet after B. The Integrative Approach several years of reform, many privatized storefronts remained empty, while By contrast, what I call the integrative approach draws new life from flimsy metal kiosks, stocked full of goods, mushroomed up on the streets. existing analytic categories. Consider how property theory should treat the Why did the new merchants not come in from the cold? One reason was striking new forms of cooperation that are emerging within common interest at transition governments often failed to endow any individual with a residential communities. The core theoretical issues in a condominium are bundle of rights that represents full ownership. Instead, fragmented rights not those associated with the blackstonian image of private property in were distributed to various socialist-era stakeholders, including private or which owners with sole despotic dominion struggle against each other asi-private enterprises, workers'collectives, privatization agencies, and problems traditionally covered by laws of nuisance and land use regulatic local, regional, and federal governments. No one could set up shop without Nor is a condominium best characterized by the waste associated with an first collecting rights from each of the other owners open access commons, a problem often resolved by state regulation. Despite Privatization of upstream biomedical research in the United States may not fitting within the existing analytic boxes, common interest communities create anticommons property that is less visible than empty storefronts, but are becoming one of the predominant forms of real property organization even more economically and socially costly. In this setting, privatization as the world becomes more crowded akes the form of intellectual property claims to the sorts of research results ly current work with Hanoch Dagan illustrates the integrative approach to that, in an earlier era, would have been made freely available in the public roperty analytics. We look at the complex forms of internal self-governance domain. Today, upstream research in the biomedical sciences is increasingly that make cooperation work in new property regimes and then abstract from likely to be"private"in one or more senses of the term -supported by those practical solutions to re-conceptualize the private and commons ideal private funds, carried out in a private institution, or privately appropriated types of ownership. Integrating those two forms suggests a new analytic tool through patents, trade secrecy, or agreements that restrict the use of materials what we call "the liberal commons "In our definition, a liberal commons is a and data. An anticommons in biomedical research may be more likely endure than in other areas of intellectual property because of high transaction costs of bargaining, heterogeneous interests among owners, and cognitive 29 This section draws substantially from Dagan& Heller, supra note 27
Vl.2:79 The Dynamic Analytics of Property Law legal regime that enables a limited group of owners to capture the economic people voluntarily to come together and create limited-access and limite and social benefits from cooperative use of a scarce resource, while also purpose communities dedicated to shared management of a scarce resource ensuring autonomy to individual members who each retain a secure right to Each offers internal self-governance mechanisms to facilitate cooperation and the peaceable joint creation of wealth, while simultaneously limiting The liberal commons challenges entrenched property theory built on minority oppression and allowing exit. For more and more resources, the positions inherent in the existing trilogy. According to these entrenched old-fashioned image of sole private property has become impracticable, views, the liberal commons is an oxymoron in theory, impossible in leading people to create pervasive, though unremarked, variations on our practice, and therefore unworthy of support by law. "Communitarians who celebrate successful commons property regimes, openly promote their By introducing the liberal commons as an analytic tool, we make the illiberal character. They emphasize that restrictions on exit are essential in already-existing liberal commons regimes more visible and more tractable a flourishing community, for only by locking people together can small for normative and practical property theory work. For example, the idea of a close-knit groups develop the informal norms key to conserving commons liberal commons helps draw attention to a puzzle: why is there such a sharp resources."Privatizers"counter that breaking up commons property augurs contrast between existing liberal commons regimes and the unified hostility better for efficiency and autonomy. Most economists join this camp because of legal theory and default property law to cooperation? Our analytic tool worry that rational owners will over-consume commons resources can be deployed wherever people want to work together but are prevented while most liberals join in because they object to locking people together. from doing so by background property rules premised on the old-fashioned Regulators"call for state command and control where communitarian or Blackstonian image of private property and the unreflective hostility to privatization approaches cannot apply. For all, the opposition of commons cooperation built into the tragedy of the commons image. By showing and private property proves an ideal foil, a shared counterpoint for how a liberal commons can integrate the benefits of private and commons otherwise competing advocates of community, efficiency, autonomy, and forms, this dynamic approach to property analytics advances normative and state authorit practical property projects Our approach rejects the oppositions between private and commons property. More precisely, by integrating these types in theory and showing C. Deploying the Two Methods how these types can work together in practice, we dissolve the"tragedy of a dynamic approach to property analytics looks to the chaos of real world the commons"conundrum. The tragedy metaphor has long been understood relations and identifies some puzzle that is not well-captured by the existing to refer to the problem of tragic outcomes. In recent years, communitarians framework, something new, something striking -a conundrum hidden or swered the outcome debate by showing that a commons can succeed, but mis-described by the existing trilogy. While each puzzle requires its own only in an illiberal environment. liberals justifiably countered that illiberal analytic solutions, both the constructive and integrative methods share the successes are still tragic and pushed for privatization. Seen through our key feature of starting from a concrete observation, abstracting from that prism, the debate between the communitarians and the liberals relies too observation so that its normative and practical implications crystallize heavily on false oppositions between commons and private property. Rightly a new analytic tool, and then using that tool to make innovative solutions considered, their debate should be reframed in terms of the question of tragic more easily imaginable choice: are we doomed to choose between our liberal commitments and the The two approaches also differ according to the limitations imposed economic and social benefits available in a commons? Constructing a liberal by existing analytic tools. The problem of excessive fragmentation of commons is, indeed, a challenge, but it is not inherently contradictory property appears in what had been terra incognita, on the other side of the practically unattainable-though the familiar trilogy obscures the meaning spectrum of ownership from commons to private property. So, constructing of already-existing integrative solutions. an anticommons type has the effect of putting private property in the middle In our view, marital property, trusts, condominiums, partnerships,and of a continuum, and the possibility of"too much"property then becomes corporations all belong under a single analytic umbrella: they can be forms more visible. By contrast, the integrative method works better when the of liberal commons property. Each is a legal invention that encourages problem is to draw out new implications from existing ideal types. For example, Dagan and I noticed that the images of private and commons
Theoretical I vl.2:79 The Dynamic Analytics of Property Law property had always been interpreted in opposition, but that property is that sole and despotic dominion which one man claims over property relations were melding the two forms together to create the external things of the world, in total exclusion of the right of any other ite distinct. By identifying what we call a liberal commons, existing private and commons property types can be re-deployed to support the gain individual in the universe. "3 Similarly, the idea of private property as a"legal thing, which arises in part because ownership has no intrinsic form. has a possible from emerging forms of cooperation in managing scarce resources lineage as ancient as the image of property as a"physical thing. Fees, life When should a constructive approach be used? When an integrative one? estates, easements, and leases all represent complex legal things distinct from So far, I cannot discern any hard rules to govern the choice of analytics. Each physical things. Although superseded in property theory, the thing-ownership method is always available; the goal and measure of a dynamic approach to metaphor continues today as a theme in popular understanding. It is easy to property analytics is simplicity and persuasion think of a house or a field or a farm as a thing because resources defined on this scale can be put to productive use. The problem with the thing-ownership IV, SOME FURTHER STEPS: BEYOND THE"BUNDLE OF RIGHTS" metaphor is that it does not help identify boundaries of complex governance arrangements and modern intangible property The metaphoric shift from thing-ownership to bundle of relations can be Just as the trilogy of property forms can be usefully expanded and revised, so traced to the late 1800s. Though its modern version is usually attributed to can the other tools of property analytics. The idea of ownership as a"bundle Hohfeld, he never mentioned a"bundle of rights. Nevertheless, he developed of rights"is perhaps the property concept most in need today of ambitious the now standard idea that property comprises a complex aggregate of social constructive and integrative work. The bundle metaphor is pervasive in and legal relationships made up of rights, privileges, duties, and immunities property-speak, Yet while it structures large segments of theoretical and This vision contrasts with"the simple and nonsocial relation between aperson practical debate, it poorly describes emerging property innovations and and a thing that Blackstone's description suggested. "33 The Hohfeldian view moved quickly from legal theory into the 1936 Restatement of Property and According to the stylized history taught to generations of law students instream scholarship and judicial decision-making. For and applied by judges every day, people understood property as a physical thing or a legal thing until this century, when lawyers recast it as an abstract example, the American Law of Property defines private property to be"an aggregate of legal relations which has economic or sale value if transfer be bundle of legal relations. The standard Hohfeld-Honore story is a remarkably allowed. "34 thin account of ownership, but still rather universal. Neither the old property as-thing metaphor nor the current property-as-bundle metaphor conveys well the pite the pervasiveness of this image, I have elsewhere shown how the nuanced way law structures control over scarce resources, In particular, the open-ended bundle of property rights image can have pernicious consequences. While the modern bundle of legal relations metaphor captures the idea of property-as-thing misses the complex internal relations among the possibility of complex fragmentation, it gives a weak sense of the owners of a thing what Dagan and i call the liberal commons- while the modern bundle metaphor suggests more fluidity than appears in existing property relations. This section just briefly introduces the shift from thing to bundle and suggests why more analytic work may be useful in moving to the 31 Blackstone, supra note 2 next, better-organizing metaphor. 32 The earliest use of the term bundle of rights appears to be from John in his 1888 treatise The Law of Eminent Domain. See J.E. Penner, The Under the old metaphor, property involves the physical ownership of of Rights"Picture of Property, 43 UCLA L. Rev. 713 n8( 1996)(tracing the discrete, individually-owned things, an image symbolized by the medieval metaphor); Kenneth J, Vandevelde, The New Property of the Nineteenth Century ceremony of livery of seisin, which gathered people in a field to exchange The Development of the Modern Conception of Property, 29 Buff. L. Rev. 325 ownership by handing over a clod of dirt. This thing-ownership metaphor is (1980)(same conventionally summarized in Blackstone,'s talismanic quotation that private 33 Gregory S. Alexander, Commodity Propriety: Competing Visions of Property in American Legal Thought, 1776-1970, at 319(1997) 34 6 American Law of Property 5 26. I n 15(A. James Carter ed, 1952&1977 Supp. The material in this section is drawn from Heller, supra note 12 35 Heller, supra note 12, at 1202-21(criticizing Supreme Court takings jurisprudence)
Theoretical inquiries in La The Dynamic Analytics of Proper thingness"still inherent in private property. So long as property theorists and the liberal commons, but also as yet unimagined property types that continue to rely on the modem bundle of legal relations metaphor, they will respond to new real-world property puzzles. A dynamic approach to need some analytical tool to distinguish things from fragments, bundles from property analytics can deploy constructive and integrative approaches rights,and private from non-private property. Lacking such a perspective has update the other hoary metaphors of property law, such as the bundle of practical consequences. For example, as I have shown, the U.S. Supreme rights image. Court has adopted uncritically the bundle of rights view of property and used None of the basic terms for property are stable. This is not to say it inadvertently to collapse the idea of private property as a distinct economic that they are meaningless or disintegrating, but that property scholarship and Constitutional category can gain from pushing these categories to reflect better changing on-the As the bundle of rights waxes in judicial decision-making, it is waning ground relations. By making property analytics more dynamic, we can move in property theory. Carol Rose has proposed moving away from land to beyond polarizing oppositions that render practical problems invisible and water as a core organizing image for property; J.E. Penner has written jurisprudential debates unresolvable. caustically that"I believe in giving dead concepts [such as the bundle of rights metaphor] a decent burial"37, and in conversation, property scholars Brian Simpson and Gregory Alexander concur that the time has come for a better core metaphor. A constructive analytic approach could perhaps re characterize existing metaphors as Newtonian holdovers and propose moving to something more up-to-date, such as a quantum or string-theory metaphor. his is whimsical: to be persuasive, such a constructed term must resonate with existing property debates while it better describes new possibilitie Altematively, an integrative analytic approach might look to re-describing the familiar opposition of property as thing and property as bundle. Perhaps we can follow Rose's lead and think through the implications of switching fromland to water. Water always conjures complex relational rights. Whether following a constructive or integrative approach, the next step for property analytics is to shift the debate towards new perspectives on familiar puzzles CONCLUSION Ideal typical understandings of property frame the normative and practical debates that matter. What happens if the core of what is property evolves, mutates, refuses to hold still? For example, what if the existing trilogy of roperty forms-private, commons, and state-hides tragedy and impedes innovation at the frontiers of property? Then a more dynamic approach to the analytics of property caries a normative punch. Beyond the standard trilogy lies new and useful analytic tools, not just anticommons property 36 Carol M. Rose, Property as the Keystone Right 71 Notre Dame L Rev. 329, 351 (1996)(comparing land and water as metaphors for property) 37 Penner, supra note 32, at 819