Browsing by Author "Rose, Carol M."

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Big Roads, Big Rights: Varieties of Public Infrastructure and Their Impact on Environmental Resources
(2008) Rose, Carol M.
"Two types of public infrastructure-roads and property rights-are often thought critical to economic development; this article compares their impacts on the natural environment. Both roads and property rights draw unfamiliar persons to remote areas, undermine existing informal resource practices, and enhance wide commercial trade, creating wealth but also reducing local resource diversity. New kinds of property rights hold much promise for environmental protection, but unlike roads and conventional property rights, environmental property rights would be tasked with curtailing commerce, as in roadless areas and caps on resource use. This sharp divergence from the traditional commercial mission of public infrastructure can limit support for environmental property rights, creating an opening for fuzzier and more consultative versions of environmental property."
Common Property, Regulatory Property, and Environmental Protection: Comparing Common Pool Resources to Tradable Environmental Allowances
(2000) Rose, Carol M.
"In Anglo-American law, there has been only very limited tolerance for traditional customary community management for CPRs. Indeed, community-based management regimes (CBMRs) have faced considerable hostility from American law in particular, on the grounds that customary communities obstruct free alienability of property, hinder opportunities to create wealth, and impede democratic governance. "Nevertheless, in recent decades, CBMRs have come to seem more attractive, particularly because they may offer new avenues to environmental management (as well as some degree of human rights protection for indigenous and traditional peoples). This paper will explore some of the strengths and weaknesses of traditional CBMRs in these dimensions. It will do so in part by drawing contrasts to a very different type of regime for environmental management, namely tradable environmental allocations (TEAs), as exemplified in sulfur dioxide quotas in the acid rain legislation of the United States, or in various programs for tradable individual fishing quotas in the United States and abroad. Among other things, the paper will compare the ways in which these very different regimes-- CBMRs and TEAs--set limits on total consumption of CPR resources, define individual entitlements to resource use, and provide for monitoring and enforcement. It will also discuss the different ways that these types of regimes respond to natural and commercial risk, and deal with resource scale and complexity."
Expanding the Choices for the Global Commons: Comparing Newfangled Tradable Allowance Schemes to Old-Fashioned Common Property Regimes
(1999) Rose, Carol M.
"In late March 1999, Lois Schiffer, Assistant Attorney General for the Environmental and Natural Resources Division of the Department of Justice, gave a speech at Yale Law School entitled Environmental Protection Here and Abroad: The View from Justice. In discussing the international aspects of the Justice Department's environmental work, Ms. Schiffer brought up the enormous problem of trade in illegally captured endangered species, citing an article that appeared in the New York Times Sunday Magazine in 1997. That article used as its central example the endangered species trade from the island of Madagascar -- specifically, the trade in the Radiated Tortoise, an exquisite and now increasingly rare animal. It is hunted by local fishermen for pennies, traded up through various dingy half-way houses for a few dollars, vacuumed into the international criminal trade, and then finally sold to collectors for tens of thousands of dollars."
Introduction: Property and Language, or, the Ghost of the Fifth Panel
(2006) Rose, Carol M.
"In this introductory lecture to the 'Symposium on The Properties of Carol Rose,' the author discusses a panel topic that dropped away from the original program plan, that is, 'Property and Language.' She argues that though formally missing from the symposium, modes of language and communication--understood broadly as symbols, stories, and pictures--are critical to the understanding of property, since so much of property consists of the signaling of claims and responses to those signals. She further argues that language and communication in property can act as a bridge between the humanities and law-and-economics in the study of law more generally. She then examines some communicative issues that appear in the symposium's other topics - commons and the public domain; nature; takings; and gifts, bargains and power."
Ostrom and the Lawyers: The Impact of Governing the Commons on the American Legal Academy
(2011) Rose, Carol M.
"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, 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, fuid change and egalitarianism."
Rethinking Environmental Controls: Management Strategies for Common Resources
(1990) Rose, Carol M.
"This paper considers environmental resources as 'commonses' and compares four methods of managing these commons: (1) doing nothing; (2) excluding newcomers; (3) controlling their manner of use; and (4) creating new individual property rights. Each of these control methods has costs, which dissipate the rents that come from maintaining the commons resource at appropriate levels. The costs are broken down into (a) system costs (e.g., administering and monitoring); (b) individual users' costs (for any additional user equipment, e.g. catalytic converters on cars); and (c) continued overuse or 'failure' costs (that is, continued spillovers due to inevitable management gaps). The best control method should be the one that controls the commons resource with the lowest total cost in rent dissipation. But the total cost of each control method varies according to the pressure on the resource. So 'doing nothing' is cheap when few people pollute the air, but very costly when many do so, whereas property-type systems, such as tradeable emissions rights, might be too expensive administratively when there are few polluters, but might have the lowest total costs when there are many major polluters. The paper finally considers the moral or rhetorical jist of each of the control methods, and queries whether some control methods have rhetorical qualities that make management more acceptable to resource users, and hence cheaper to administer."
Romans, Roads, and Romantic Creators: Traditions of Public Property in the Information Age
(2003) Rose, Carol M.
From p. 90-91: "In this paper, I am going to leverage this point of the comparative advantage of publicness in Intellectual Space. To do so, I will turn to the other side, to Tangible Space, to ask whether there is a case to be made even here for the public domain. One would think that if the public domain is at all attractive in Tangible Space, where there is such a strong argument to the contrary based on the potential waste of resources, then the arguments for the public domain should be even more compelling in Intellectual Space, where the counter-arguments for exclusivity are cut in half. "Ultimately, I will conclude that to some degree this surmise is true -- that the arguments for the public domain are more persuasive in Intellectual Space -- but the examination of 'publicness' in Tangible Space reveals a number of considerations and limitations, some of which carry over into Intellectual Space. I am going to work through those considerations by reflecting on a very old body of thought, namely the Roman law's categories of nonexclusive property. Anything that I say here should be taken, as the Romans said, cum grano salis, because I am at best a novice both in Roman law and in matters of intellectual property. All the same, I will suggest that the Roman law's reasons for the 'publicness' of some tangible property might carry some weight in the intellectual realm as well -- but so do some of the Roman law's limitations and qualifications on the 'publicness' of property."
Whither Commodification?
(2005) Rose, Carol M.
"While early commodification theory constituted a sharp critique of economics approaches to law, the author finds a certain rapprochement in some of the newer commodification literature. Although many of the newer scholars remain critical, some in effect borrow the economic idea of the second best, to argue that although gift relationships might be first-best solutions, particularly in intimate associations, market approaches could be second-best even in those contexts, where noncommercial approaches are not feasible. (That is to say, love might be best, but getting paid is second-best, e.g., in the case of prostitution, domestic relations or organ transfers.) Other scholars see commodification as a liberating release from nosy neighbors and intrusive regulators, e.g., in the case of reproductive materials. Still others note that markets themselves are social relationships, and market exchange may act as the opening step toward later relationships of friendship and trust, as in the burgeoning affection between paid caregivers and recipients. In all these and other ways, newer commodification theorists, while still frequently very resistant to law-and-economics, have offered a fresh look into the liberatory or socializing characteristics of market transactions."