Carol Rose on "Ostrom and the Lawyers"

University of Arizona law professor, Carol Rose, one of the outstanding property law scholars of our time, has posted a new working paper on the Social Science Research Network on "Ostrom and the Lawyers: The Impact of Governing the Commons on the American Legal Academy." The paper is forthcoming in a special issue of the International Journal of the Commons celebrating the 20th anniversary of Elinor Ostrom's Governing the Commons (Cambridge 1990).

Professor Rose's paper examines the influence of Lin Ostrom's theory of common property regimes on legal scholars since the publication of her famous 1990 book. Not surprisingly, Rose finds that the book exerted great influence on property scholars and law professors writing in environmental and natural resources law. More recently and only a bit more surprisingly, Ostrom's work has engaged the attention of intellectual property scholars. Here is the abstract of Rose's paper:

American legal academics began to cite Elinor Ostrom’s Governing the Commons (GC) shortly after its 1990 publication, with citations peaking in the mid 2000s and with signs of a new peak in 2010 in the wake of Ostrom’s Nobel Prize in Economics. The legal scholars most interested in GC have worked in three areas: general property theory, environmental and natural resource law, and since the mid 1990s, intellectual property. In all those areas legal scholars have found GC and its many examples a strong source of support for the proposition that people can cooperate to overcome common pool resource issues, managing resources through informal norms rather than either individual property or coercive government. Legal academics have also been at least mildly critical of GC as well, however. A number have tried to balance the attractive features of GC’s governance model-stability and sustainability-with more standard legal models favoring toward open markets, fluid change and egalitarianism.

As someone who has written a fair amount about Lin's work myself (in my 2002 Pollution and Property book), I find nothing much to argue with in Rose's article. I only wish she had situated Lin's book within the context of her earlier work, much of it with her husband Vincent, on polycentric governance regimes, where they stress the importance of local authority as part of larger, more complex government institutional structures.

A greater focus on the central importance of polycentricity to Lin's framework would help explain some of the conventional (and contradictory) misunderstandings of Lin's work, by legal scholars and others, as either opposing private property or opposing public regulation. In fact, as Professor Rose notes, Lin opposes neither, but merely argues that in some circumstances other governance mechanisms exist for avoiding what Garrett Hardin called "the tragedy of the commons." Those other governance mechanisms include common property regimes. Such regimes do not always succeed, of course. Nor do they necessarily exist in isolation from other formal or informal institutional structures. As often as not, they are "nested" within a larger complex of institutions, including formal laws.