Browsing by Author "Fennell, Lee Anne"

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Common Interest Tragedies
(2004) Fennell, Lee Anne
"No one working in property theory can ignore the anticommons. This upstart doppelgänger of the commons began its intellectual life as an imaginary regime in which everyone had the power to prevent everyone else from using a particular resource. Michael Heller’s subsequent construction of a recognizable category of 'anticommons property' corresponding to situations in lived experience represented an important advance in the property lexicon that sparked a surge of scholarly interest."
The Commons and the Cathedral
(2003) Fennell, Lee Anne
"The commons presents weighty problems of far-reaching significance, as the large and growing literature in this area attests. While problems presented by common pool resources and common property are often resolved or avoided through nonlegal means, legal entitlements constitute an important set of options for structuring responses to commons dilemmas. Moreover, entitlements (whether de jure or de facto) are always involved in setting the background conditions against which commons interactions play out, and are always at least implicitly responsible for contributing to the conditions that generate commons tragedies. The categorization of entitlements into those protected, respectively, by property rules and liability rules has yielded an intricate body of legal scholarship of great relevance for the engineering of solutions to conflicting property interests. Curiously, however, legal scholars have done relatively little to apply this important body of sophisticated scholarship to the commons setting. Instead, those studying options for protecting entitlements typically use stylized examples featuring a 'polluter' (usually a factory) and a 'victim' (usually a laundry or homeowner). Unique features of the commons situation, such as the fact that members of a commons are potential polluters and potential victims at the same time, alter the analysis in important ways and open up untapped opportunities for devising innovative solutions to commons problems. The paper is divided into three parts. In Part I, I provide an overview of the existing literature on entitlements, discuss how commons situations differ from the standard polluter/victim interaction, and show how the six 'rules' that have been identified for protecting entitlements would translate into a simple commons situation involving a residential neighborhood. In Part II, I discuss the signature difficulties associated with these various solutions. Each of these difficulties is fundamentally rooted in heterogeneity in the subjective valuation of entitlements. Property rule solutions cater to heterogeneous subjective valuations by giving each entitlement-holder an absolute veto power over transfers, but this structural solicitude to valuation differences also provides a strategic opportunity for 'holding out' -- that is, pretending to have a different valuation than one actually has, in an effort to capture more of the surplus associated with transfer. Liability rule solutions (and their mirror image, 'put options') avoid this latter problem by allowing unilateral transfers on the initiative of just one party. However, this means potentially overriding true subjective valuations to effectuate transfers that are not, in fact, efficient. In Part III, I discuss ways to adapt or mix these mechanisms to better manage these twin risks in the commons setting, and further consider the impact that the choice of legal entitlements may have on nonlegal mechanisms such as norms for controlling the commons."
Ostrom’s Law: Property Rights in the Commons
(2011) Fennell, Lee Anne
"Elinor Ostrom’s work has immeasurably enhanced legal scholars’ understanding of property. Although the richness of these contributions cannot be distilled into a single thesis, their favor can be captured in a maxim I call Ostrom’s Law: 'A resource arrangement that works in practice can work in theory.' Ostrom’s scholarship challenges the conventional wisdom by examining how people interact over resources on the ground--an approach that enables her to identify recurring institutional features associated with long-term success. In this essay, I trace some of the ways that Ostrom’s focus on situated examples has advanced interdisciplinary dialogue about property as a legal institution and as a human invention for solving practical problems. I begin by highlighting the attention to detail that characterizes Ostrom’s methodology. I then examine how Ostrom’s scholarship yields insights for, and employs insights from, property theory. Next, I consider the question of scale, an important focal point of Ostrom’s work, and one that carries profound implications for law. I conclude with some observations about interdisciplinarity as it relates to research on the commons."
The Unbounded Home: Property Values Beyond Property Lines
(Yale University Press (rights reverted to author in July 2023), 2009) Fennell, Lee Anne
"The Unbounded Home grapples with a core modern reality -- that the value and meaning of a home extend beyond its property lines to schools, shops, parks, services, neighbors, neighborhood aesthetics, and market conditions. The resulting tension between the homeowner's desire for personal autonomy at home and the impulse to control everything that could affect the home's value fuels continual conflict among neighbors and communities. The home's unbounded nature implicates nearly every facet of residential life, from the financial vulnerability of homeowners to the persistence of segregation by race and class. This book shows how innovations that increase the flexibility of property law can address critical issues of neighborhood control and community composition that have been simmering unresolved for decades -- and how homeownership itself can be reinvented to better deliver on its promises."