The several futures of property: Of cyberspace and folk tales, emission trades and ecosystems

Minnesota Law Review

Volumn 83, Issue 1, 1998, Pages 129-182

  Rose, Carol M ^a  

^a NONE

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EID: 0041734597     PISSN: 00265535     EISSN: None     Source Type: Journal    
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References (221)

1. See Garrett Hardin, The Tragedy of the Commons, 162 SCI. 1243, 1244 (1968);
2. see also H. Scott Gordon, The Economic Theory of a Common-Property Resource: The Fishery, 62 J. POL. ECON. 124, 134 (1954) (giving an earlier version of the theory of the tragedy of the commons).
3. See Robert D. Cooler, Structural Adjudication and the New Law Merchant: A Model of Decentralization, 4 INT'L. REV. L. & ECON. 215, 216 (1994).
4. See Carolyn Merchant, Paradise and Property: Locke's Narrative and the Transformation of Nature (Mar. 7, 1997) (unpublished manuscript presented to the Am. Soc'y For Envtl. Hist., Baltimore, MD, on file with author).
5. See ALBERT O. HIRSCHMAN, THE PASSIONS AND THE INTERESTS 31-42 (1977) (describing the early modern intellectual discussion of transforming sinful "avarice" into benign "interest").
6. Cf. Ian Ayres & Eric Talley, Solomonic Bargaining: Dividing a Legal Entitlement to Facilitate Coasean Trade, 104 YALE L.J. 1027, 1037-39 (1995) (arguing that property interests may impede trade by creating opportunities for strategic bargaining).
7. But see Carol M. Rose, The Shadow of The Cathedral, 106 YALE L.J. 2175, 2182-88 (1997) (criticizing this argument by pointing out several ways that property reduces other bargaining costs).
8. See 1 ADAM SMITH, THE WEALTH OF NATIONS 7-8, 13-16 (Mod. Lib. ed. 1937).
9. See RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 32 (4th ed. 1992).
10. See Margaret J. Radin, Market-Inalienability, 100 HARV. L. REV. 1849, 1870-74, 1877-87 (1987) (arguing that commodification of certain objects might be antagonistic to the interests of personhood).
11. Another author who has noted some relationships between cyberspace and environmentalism is James Boyle, though his analysis takes a rather different direction. See James Boyle, A Politics of Intellectual Property: Environmentalism for the Net?, 47 DUKE L.J. 87 (1997) (discussing a more political approach to decisionmaking in both areas).
12. See ROBERT C. ELLICKSON ET AL., PERSPECTIVES ON PROPERTY LAW xii (2d ed. 1995) (citing shared dormitory room as common property);
13. Robert C. Ellickson, Property in Land, 102 YALE L.J. 1315, 1394-95 (1993) (observing that the vast majority of the American population lives in multi-person households, a form of limited-access "commons").
14. See Harold Demsetz, The Exchange and Enforcement of Property Rights, 1 J.L. & ECON. 11, 14 (1964) (referring to the cost of systems that control and exchange goods, regardless of whether the systems are based on property or governmental alternatives).
15. See Moore v. Regents of the Univ. of Cal., 793 P.2d 479, 488-97 (Cal. 1989), cert. denied, 499 U.S. 936 (1991) (refusing to recognize a property right in favor of donor of bodily materials from which cell line was developed).
16. See, e.g., Kerry Cork, Comment, Test Tube Parents: Collaborative Reproduction in Minnesota, 22 WM. MITCHELL L. REV. 1535, 1541-46 (1996) (discussing inadequacies of record keeping for sperm donation and recent changes regarding the demand of anonymity, and identifying similar problems with record keeping for donated eggs).
17. See Clean Air Act, 42 U.S.C. §§ 7651-7651o (1994) (establishing program for tradable emission permits in acid rain precursors).
18. See Demsetz, supra note 11, at 16-20 (noting the ability of a property regime to generate information, but arguing that it is only efficient to have such a regime when the information is worth more than the costs); GARY D. LIBECAP, CONTRACTING FOR PROPERTY RIGHTS 19-26 (1989) (describing the impediments to establishing property regimes even when aggregate benefits outweigh costs);
19. Mark J. Roe, Chaos and Evolution in Law and Economics, 109 HARV. L. REV. 641, 651 (1996) (describing systems as "strong path dependence" if information and political considerations prevent even efficient changes in legal regimes).
20. See LIBECAP, supra note 15, at 24 (discussing the problem of deception in collective action); Roe, supra note 15, at 651 (describing information barriers that induce strong path dependence); see also James E. Krier, The Tragedy of the Commons, Part II, 15 HARV. J.L. & PUB. POL'Y 325, 334-39 (1992) (discussing human self-interest and collective action problems in property regimes);
21. DOUGLASS C. NORTH, INSTITUTIONS, INSTITUTIONAL CHANGE AND ECONOMIC PERFORMANCE 51-52 (1990) (discussing how the perceptions of actors in collective activities may lead to inefficient bargains);
22. CAROL M. ROSE, PROPERTY AND PERSUASION 35-39 (1994) (explaining how individuals in collective activities are motivated to cheat on any arrangement);
23. Carol M. Rose, Environmental Lessons, 27 LOY. L.A. L. REV. 1023, 1024-26 (1994) (attributing human inattention to common resource problems to a lack of motivation and information).
24. See Jane E. Brody, The Too-Common Crow, Too Close for Comfort, N.Y. TIMES, May 27, 1997, at C1.
25. See Harold Demsetz, Toward a Theory of Property Rights, 57 AM. ECON. REV. 347, 351-53 (Pap. and Proc. 1967) (citing the work of Eleanor Leacock who demonstrated a close relationship between the development of private rights in land and the development of the commercial fur trade).
26. Compare People's Gas Co. v. Tyner, 31 N.E. 59, 60 (Ind. 1892) (petroleum products described as ferae naturae and subject to the rule of capture by each surface owner), with Baumgartner v. Gulf Oil Corp., 16 N.W.2d 510, 516 (Neb. 1969), cert. denied, 397 U.S. 913 (1970) (surface owner's respective rights adjusted to encourage secondary recovery of oil).
27. See Krier, supra note 16, at 335-39, 345 (arguing that property rights do not arise automatically from the need to have them); cf. Gary D. Libecap, Economic Variables and the Development of the Law: The Case of Western Mineral Rights, in EMPIRICAL STUDIES IN INSTITUTIONAL CHANGE 31, 57-58 (Lee J. Alston et al. eds., 1996) (concluding that legal changes defining property rights in Nevada mining responded to increased efficiency gains from such definitions);
28. Dean Lueck, The Economic Nature of Wildlife Law, 18 J. LEGAL STUD. 291, 321 (1989) (concluding that legal institutions have shaped wildlife ownership law in efficient ways).
29. See Carol M. Rose, Property as the Keystone Right?, 71 NOTRE DAME L. REV. 329, 351 (1996) (comparing land and water as property metaphors).
30. See, e.g., J.H. DALES, POLLUTION, PROPERTY & PRICES 61-62 (1968) (comparing the ease of dividing land into parcels with the difficulty of dividing air and water into parcels).
31. See Acton v. Blundell, 152 Eng. Rep. 1223 (Ex. Ch. 1843) (describing both invisibility and uncertainty of the location of subsurface water sources, and using these characteristics as the reason for allowing landowners to take water freely beneath their own property).
32. See generally SHUI YAN TANG, INSTITUTIONS AND COLLECTIVE ACTION: SELF-GOVERNANCE IN IRRIGATION (1992) (describing complexities of community irrigation systems);
33. Reed D. Benson, Whose Water Is It? Private Rights and Public Authority Over Reclamation Project Water, 16 VA. ENVTL. L.J. 363, 367-68 (1997) and authorities cited therein (commenting on the complexities of ownership of reclamation water);
34. Joseph L. Sax, Rights that "Inhere in the Title Itself: The Impact of the Lucas Case on Western Water Law, 26 LOY. L.A. L. REV. 943, 944 (1993) (noting that rights in water law are subject to changing public needs).
35. DALES, supra note 22, at 61-63; Carol M. Rose, A Dozen Propositions on Private Property, Public Rights, and the New Takings Legislation, 53 WASH. & LEE L. REV. 265, 272-74 (1996).
36. See DALES, supra note 22, at 63-65; Rose, supra note 25, at 274 (describing legislative regulation in response to the increasing frequency of the nuisance action against pigsties in urban areas).
37. See SEYMOUR I. TOLL, ZONED AMERICA 48, 68-72, 180-83 (1969) (discussing the 1915 Equitable Building, opposition to it, and the campaign for zoning law regulating height as well as uses).
38. See, e.g., Alyson C. Flournoy, Preserving Dynamic Systems: Wetlands, Ecology and Law, 7 DUKE ENVTL. L. & POL'Y F. 105, 105 n.1, 121-23 (1996) (describing the wetlands' importance in flood control, water purification, and wildlife conservation, but noting the constraining impact of the current "property rights movement" on regulatory efforts to limit owners' filling of wetlands).
39. See Robert C. Ellickson, Property in Land, 102 YALE L.J. 1315, 1330 (1993) (describing the economic prediction that enhanced technology for boundary enforcement will lead to further enclosure).
40. See id.; see also ROBERT C. ELLICKSON, ORDER WITHOUT LAW 26 n.30 (1991) (describing historical literature on barbed wire);
41. Wayne Gard, The Law of the American West, in THE BOOK OF THE AMERICAN WEST 261, 292 (Jay Monaghan ed., 1963) (describing the introduction of barbed wire);
42. ERNEST STAPLES OSGOOD, THE DAY OF THE CATTLEMAN 190 (1929) (describing the introduction of barbed wire). Both Gard and Osgood observed that barbed wire encouraged overreaching at the outset. See Gard, supra, at 192-93 (noting illegal enclosures); OSGOOD, supra, at 191-195 (additionally noting conflicts over the enclosure of scarce water sources and public roads).
43. See State of Ohio v. EPA, 784 F.2d 224, 228-232, aff'd on reh'g, 798 F.2d 880, 882 (6th Cir. 1986) (describing new air pollution model, though finding it insufficiently tested).
44. See JOSEPH L. SAX ET AL., LEGAL CONTROL OF WATER RESOURCES: CASES AND MATERIALS 245-46 (2d ed. 1991).
45. See John L. McCormick, Torrens and Recording: Land Title Assurance in the Computer Age, 18 WM. MITCHELL L. REV. 61, 67-74, 115-28 (1992) (describing modern land recordation systems).
46. For the "militias"' use of recording systems to clog land titles, see James Brooke, Officials Say Montana 'Freemen' Collected $1.8 Million in Scheme, N.Y. TIMES, Mar. 2, 1996, at A1 (describing use of false liens filed on property of enemies). These abuses of the recording system, incidentally, illustrate how greatly property regimes depend on underlying systems of norms. See generally ELLICKSON, supra note 30, at 184-206 (1991) (describing property norms of "close-knit groups"); ROSE, supra note 16, at 125-26 (1994) (describing historic national norms relating to property).
47. Richard A. Epstein, Covenants and Constitutions, 73 CORNELL L. REV. 906, 906 (1988) (analogizing systems of private land use controls to "constitutions").
48. JAMES M. ACHESON, THE LOBSTER GANGS OF MAINE 63-70 (1988).
49. See D. Bruce Johnsen, The Formation and Protection of Property Rights Among the Southern Kwakiutl Indians, 15 J. LEGAL STUD. 41, 41-42 (1986).
50. See ROSE, supra note 16, at 18-19, 294-96.
51. Reva Siegel, "The Rule of Love": Wife Beating as Prerogative and Privacy, 105 YALE L.J. 2117, 2153 (1996). More recent legal doctrines similarly undermine women's legal rights to be free of violence. See id. at 2200-02 (discussing federalism constraints on the interpretation of the Violence Against Women Act).
52. See WILLIAM N. ESKRIDGE, JR., THE CASE FOR SAME-SEX MARRIAGE 66-68 (1996).
53. See generally STEPHEN J. PYNE, FIRE IN AMERICA: A CULTURAL HISTORY OF WILDLAND AND RURAL FIRE 47-51 (1982) (describing Eastern tribes' fire practices).
54. See WILLIAM CRONON, CHANGES IN THE LAND 56-58 (1983) (describing Puritan debates over whether Native Americans could claim property through fire and other practices).
55. SEE JOHN FREDERICK MARTIN, PROFITS IN THE WILDERNESS: ENTREPRENUERSHIP AND THE FOUNDING OF NEW ENGLAND TOWNS IN THE SEVENTEENTH CENTURY 9, 151 (1991) (describing land purchases from the Indians as a prerequisite to New England town settlements).
56. See Johnson v. M'Intosh, 21 U.S. (8 Wheat.) 543, 567-71 (1823) (restating the defendant's argument that Indians did not own property); see also Terry L. Anderson & Fred S. McChesney, Raid or Trade? An Economic Model of Indian-White Relations, 37 J.L. & ECON. 39, 61-64 (1994) (arguing that the pattern of negotiation broke down as settlers moved west and encountered less sedentary tribes);
57. Rosemary J. Coombe, Authorial Cartographies: Mapping Proprietary Borders in a Less-Than-Brave New World, 48 STAN. L. REV. 1357, 1362 (1996) (observing European and American "insistence" that natives were mobile hunters rather than agriculturalists).
58. See, e.g., Robert Higgs, Legally Induced Technical Regress in the Washington Salmon Fishery, in EMPIRICAL STUDIES IN INSTITUTIONAL CHANGE, supra note 20, at 247, 250-52 (describing settlers' abandonment of the efficient Native American fishing regime).
59. See Coombe, supra note 43, at 1360. For an expanded version of her argument, see ROSEMARY J. COOMBE, CULTURAL APPROPRIATIONS: AUTHORSHIP, ALTERITY AND THE LAW (in press, Duke Univ. Press, 1997).
60. See generally PYNE, supra note 40, at 163-80 (describing systematic efforts to stop forest fires).
61. See Johnsen, supra note 36, at 46-47 (describing Canadian attempts to halt potlatch); ARTHUR MCEVOY, THE FISHERMAN'S PROBLEM 47 (1986) (describing the California goldminers' destruction of salmon breeding waters as a major source of conflict between natives and settlers).
62. See, e.g., Lenora Ledwon, Native American Life Stories and "Authorship": Legal and Ethical Issues, 9 ST. THOMAS L. REV. 69, 76 (1996) (noting "new age" appropriations of Native American artifacts, musical instruments, and ceremonies);
63. see also Christine Haight Farley, Protecting Folklore of Indigenous Peoples: Is Intellectual Property the Answer?, 30 CONN. L. REV. 1, 4-9 (1997) (describing egregious instance of unauthorized commercial use of Aboriginal Australian artwork as one of many appropriations of indigenous art).
64. See, e.g., John E. Giust, Noncompliance with TRIPs by Developed and Developing Countries: Is TRIPs Working?, 8 IND. INT'L & COMP. L. REV. 69, 94-95 (1997) (noting that developing countries traditionally resist strong intellectual property protections on ground that such protections favor more developed countries and limit access to technology).
65. Carol M. Rose, The Comedy of the Commons: Custom, Commerce, and Inherently Public Property, 53 U. CHI. L. REV. 711, 711-14 (1986).
66. Property most needful for commerce is a traditional candidate for publicness, see id. at 774-77, but in recent years there have been arguments for recreation and speech as foundations of public property, see id. at. 774-81, as well as ecosystem preservation, see Alison Rieser, Ecological Preservation as a Public Property Right: An Emerging Doctrine in Search of a Theory, 15 HARV. ENVTL. L. REV. 393, 402, 418-26 (1991).
67. See, e.g., Robert P. Merges, Rent Control in the Patent District: Observations on the Grady-Alexander Thesis, 78 VA. L. REV. 359, 373-74 (1992) (arguing that inventiveness is not appropriately represented as a limited resource or zero-sum game, but rather as a positive sum game).
68. A much more extreme view of the public nature of ideas was once common. See Martha Woodmansee, The Genius and the Copyright: Economic and Legal Conditions of the Emergence of the "Author", 17 EIGHTEENTH CENTURY STUD. 425, 434 (1984) (describing a view, prevalent until the late eighteenth century, that an author was a mere craftsman transcribing ideas already in the public domain, and by extension, an author's work was in the public domain as well ).
69. Keith Aoki, (Intellectual) Property and Sovereignty: Notes Toward a Cultural Geography of Authorship, 48 STAN. L. REV. 1293, 1333-34 (noting that computers raise ambiguity between copying and reading);
70. see also Margaret Chon, New Wine Bursting From Old Bottles: Collaborative Internet Art, Joint Works, and Entreprenuership, 75 OR. L. REV. 257, 259-66 (1996).
71. See Aoki, supra note 52, at 1305-08 (contrasting the views of John Perry Barlow and Jane C. Ginsburg).
72. Jessica Litman, Copyright Legislation and Technological Change, 68 OR. L. REV. 275, 276-77 (1989) (contrasting optimistic and pessimistic views about copyright law's ability to assimilate new technology).
73. See id.; see also Pamela Samuelson et al., A Manifesto Concerning the Legal Protection of Computer Programs, 94 COLUM. L. REV. 2308, 2343, 2347-48, 2365 (1994) (arguing that the existing intellectual property law categories are unsuited with respect to software). Interestingly, these authors argue that one of the principle sources of value in new software is metaphor, such as the metaphor of the page in word processing. See id. at 2334.
74. Information Infrastructure Task Force, Intellectual Property and the National Information Infrastructure: The Report of the Working Group on Intellectual Property Rights 17 (last modified Nov. 15, 1995) 〈http://www.uspto.gov/web/offices/com/doc/ipnii〉 [hereinafter White Paper].
75. But see Pamela Samuelson, The Copyright Grab, WIRED MAG., Jan. 1996, at 134 (arguing that the White Paper's proposed adjustments are in reality major extensions of copyright law, limiting earlier patterns of free use and requiring major intrusions into existing cyberspace practice).
76. For other challenges to the White Paper, see Keith Aoki, Foreword: Innovation and the Information Environment: Interrogating the Entrepreneur, 75 OR. L. REV. 1, 12-13 (1996).
77. See White Paper, supra note 56, at 10-11.
78. See Barbara Jepson, It Is No Disgrace to Be Second Fiddle to a Stradivarius, SMITHSONIAN MAG., Oct. 1990, at 160 (describing modern efforts to recreate the lost secrets of Cremona violin production).
79. See Harper & Row, Publishers v. Nation Enter., 471 U.S. 539, 558 (1985) (stating that the marketable right to use one's expression gives incentive to "create and disseminate ideas," comporting with the Framers' intent for copyright law); see also Mark F. Grady & Jay I. Alexander, Patent Law and Rent Dissipation, 78 VA. L. REV. 305, 318, 342 (1992) (noting that patents reduce the need for secrecy);
80. Edmund W. Kitch, The Nature and Function of the Patent System, 20 J.L. & ECON. 265, 275-80 (1977) (arguing that patents encourage investment and lessen the need for secrecy).
81. Margaret Jane Radin, Property Evolving in Cyberspace, 15 J.L. & COM. 509, 522 (1996).
82. See Michael Froomkin, Flood Control on the Information Ocean, 15 J.L. & COM. 395, 407-09 (1996) (discussing the possibility and the implications of "alternative personae" on the Internet);
83. see also Curtis E.A. Karnow, The Encrypted Self: Fleshing Out the Rights of Electronic Personalities, 13 J. COMPUTER & INFO. L. 1 (1994) (suggesting a new legal fiction, the "electronic personality" or "eper").
84. But see Katherine Franke, Cunning Stunts: From Hegemony to Desire; a Review of Madonna's Sex, 20 N.Y.U. REV. L. & SOC. CHANGE 549, 570 n.115 (1993-94) (describing cybersex participants' anxieties over being fooled by gender imposters). This is particularly interesting because the chosen forum highlights anonymous fantasy. See id.
85. See Jon Jefferson, Deleting Cybercrooks, A.B.A. J., Oct. 1997, at 68 (describing a variety of criminal activities on the Internet and the efforts of the criminal justice system to react).
86. See Froomkin, supra note 61, at 402-407 (discussing several ways that anonymity on the Internet can undermine trust and result in greater surveillance); cf. id. at 407-411 (discussing advantages of anonymity in preserving privacy).
87. George A. Akerlof, The Market for "Lemons": Quality Uncertainty and the Market Mechanism, 84 Q.J. ECON. 488, 495-96 (1970) (discussing the negative effects of dishonest dealing on a market).
88. See Kenneth W. Dam, The Role of Private Groups in Public Policy: Cryptography and the National Research Council, 38 OCCASIONAL PAPER FROM THE LAW SCHOOL, U. CHI. L. SCH., 7-11 (1996) (discussing law enforcement and national security issues regarding encryption).
89. See White Paper, supra note 56, at 211-20, 230-34 (recommending expansion of copyright law to include technology aimed at protecting intellectual property on the Internet). But see Samuelson, supra note 56, at 135 (criticizing potential effects of White Paper's suggestions).
90. See Nina Bernstein, On Frontier of Cyberspace, Data Is Money, and a Threat, N.Y. TIMES, June 12, 1997, at A1 (stating that a woman sued a telemarketing firm for violation of privacy and for allowing her questionnaire responses to be entered in computer files by prisoners, one of whom later used the information in contacting her);
91. see also Lawrence Lessig, The Zones of Cyberspace, 48 STAN. L. REV. 1403, 1408-09 (1996) (noting incipient legal effort to control access and create metaphoric boundaries in cyberspace).
92. Lessig, supra note 67, at 1405 (describing the standard arguments marshaled against expanding traditional copyright protection in cyberspace).
93. David R. Johnson & David Post, Law and Borders - The Rise of Law in Cyberspace, 48 STAN. L. REV. 1367, 1370-78 (1996). But cf. Lessig, supra note 67, at 1404-09 (expressing skepticism over these arguments).
94. See Aoki, supra note 52, at 1340-45 (describing the difficulty of arriving at common standards for cyberspace and the distributional unevenness of universalizing the Western standard of "romantic authorship"); see also Pamela Samuelson, Big Media Beaten Back, WIRED MAG., Mar. 1997, at 61 (describing the rejection of White Paper's approach in an international copyright conference).
95. Woodmansee, supra note 51, at 425-26, 438-39, 443-45 (describing the nascent recognition of authors of tangible property).
96. See MARK ROSE, AUTHORS AND OWNERS: THE INVENTION OF COPYRIGHT 125-28 (1993) (describing eighteenth century rhetoric of authorial creative genius);
97. Wendy J. Gordon, A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property, 102 YALE L.J. 1533, 1544-48 (1993) (describing natural rights claim to ownership of things one creates);
98. Wendy J. Gordon & Sam Postbrief, On Commodifying Intangibles, 10 YALE J.L. & HUMAN. 135, 142 (1998)
99. (reviewing James Boyle's book Shamans, Software and Spleens: Law and the Construction of the Information Society that describes authorial debt to other authors).
100. Rosemary Coombe, Left Out on the Information Highway, 75 OR. L. REV. 237, 246 (1996) (using the example of uncopyrighted African designs woven into copyrighted American textiles).
101. See id. at 245-47; see also Rosemary J. Coombe, The Properties of Culture and the Politics of Possession Identity: Native Claims in the Cultural Appropriation Controversy, 6 CAN. J.L. & JURIS. 249, 280-84 (1993) (discussing the mismatch between western property categories and Native American cultural claims);
102. Shayana Kadidal, Plants, Poverty, and Pharmaceutical Patents, 103 YALE L.J. 223 (1993) (suggesting a more equitable intellectual property regime to protect less developed countries' biological materials);
103. Naomi Roht-Arriaza, Of Seeds and Shamans: The Appropriation of the Scientific and Technical Knowledge of Indigenous and Local Communities, 17 MICH. J. INT'L L. 919, 929-47 (1996) (stating that western intellectual property concepts deny protection to indigenous plant and animal uses).
104. Cf. Kadidal, supra note 74, at 228-29 (stating that intellectual property regimes undervalue indigenous traditional breeding practices that form a basis for western commercial seeds); Roht-Arriaza, supra note 74, at 936-40 (describing the patent system's favoritism to sharply defined innovative steps over gradual communal accretions of knowledge).
105. Cf. Boyle, supra note 9, at 133-34.
106. For a brief history of this mantra, described as "[t]he motto of the hacker world," see Marci A. Hamilton, The TRIPs Agreement: Imperialistic, Outdated and Overprotective, 29 VAND. J. TRANSNAT'L L. 613, 625 n.30 (1996).
107. See, e.g., Peter Jaszi, Caught in the Net of Copyright, 75 OR. L. REV. 299, 305-07 (1996) (arguing that the White Paper's proposals would alter Internet use without the traditional protections for open access); Samuelson, supra note 70, at 134-35.
108. See, e.g., Richard Stallman, Reevaluating Copyright: The Public Must Prevail, 75 OR. L. REV. 291 (1996) (arguing that the current copyright laws inhibit innovation and creativity).
109. These critiques are interestingly combined, in the context of genetic research, in Michael A. Heller & Rebecca S. Eisenberg, Can Patents Deter Innovation?, 280 SCI. 698, 698-99 (1998) (arguing that excessive patents in genetic research can create an "anticommons" in which multiple rights block unified research).
110. See also Michael Heller, The Tragedy of the Anticommons: Property in the Transition from Marx to Markets, 111 HARV. L. REV. 622, 677 (1998) (describing "anticommons" in which excessive property rights block resource below a level that is socially optimal).
111. See David M. Herszenhorn, For Central Park's Late Shift, Darkness is Lure, Not Threat, N.Y. TIMES, May 29, 1997, at A1 (describing late-night subculture in Central Park after dark as gatherings for roller-skating, drinking, and socializing despite the perceived danger).
112. See Boyle, supra note 9, at 98-103 (discussing arguments that creative endeavors may be encouraged by public access as well as privatization).
113. See, e.g., Jessica Litman, Revising Copyright Law for the Information Age, 75 OR. L. REV. 19, 39-40 (1996) (noting widespread public norms that run contrary to formal copyright law and enforce only commercial exploitations).
114. Johnson & Post, supra note 69, at 1388-91 (arguing that cyberspace users can develop internal norms comparable to medieval "law merchant"); see also Llewellyn Joseph Gibbons, No Regulation, Government Regulation, or Self-Regulation: Social Enforcement or Social Contracting of Governance in Cyberspace, 6 CORNELL J.L. & PUB. POL'Y 475, 509-23 (1997) (describing Internet users' methods for self-governance).
115. See Avner Greif, Reputation and Coalitions in Medieval Trade: Evidence on the Maghribi Traders, 49 J. ECON. HIST. 857, 875-81 (1989) (describing Maghribi medieval traders who were in a defined group with substantial sources of information about one another; also describing Italian merchants' organization in family units); see also Gibbons, supra note 84, at 520-23 (noting the lack of multidimensional relationships on the Internet as a problem for the enforcement of norms, but also observing that some Internet users become "residents" susceptible to social enforcement).
116. Radin, supra note 60, at 516; see also Gibbons, supra note 84, at 520-21 (noting additional problems of anonymity and heterogeneity of net users). But see id. at 509-23 (describing a variety of technological and norm-based techniques for policing outsider intrusion and insider misbehavior in Internet groups).
117. See Radin, supra note 60, at 525.
118. See Woodmansee, supra note 51, at 438-39, 443-47 (describing the relation of an absence of intellectual property to discussions of "genius" in Germany); ROSE, supra note 72, at 124-28 (detailing discussions of originality and genius advanced in England to protect literary works).
119. ELLLICKSON, supra note 30, at 177-83 (1991).
120. See Robert P. Merges, Property Rights Theory and the Commons: The Case of Scientific Research, 13 SOC. PHIL. & POL'Y 145, 162-63 (1996) (describing how scientific research and discovery is furthered by internal common access when coupled with group norms that prevent the exploitation of property rights).
121. See generally ELLICKSON, supra note 30; ELINOR OSTROM, GOVERNING THE COMMONS: THE EVOLUTION OF INSTITUTIONS OF COLLECTIVE ACTION (1990).
122. Merges, supra note 90, at 162-66; Robert P. Merges, Contracting Into Liability Rules: Intellectual Property Rights and Collective Rights Organizations, 84 CAL. L. REV. 1293, 1293-1330, 1355-58 (1996); see also Gibbons, supra note 84, at 523-32 (calling for "contracting for governance in cyberspace").
123. See 17 U.S.C. § 201(a) (1996) (defining authors of joint work as co-owners). The notes of the Committee on the Judiciary, see H.R. Rep. No. 94-1476, at 2 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, describe a joint work as one in which each participant prepares his or her contribution with the knowledge and intent that it will be merged with the contributions of the others. For antitrust issues in pooling intellectual property rights, see Merges, supra note 92, at 1355-56 (attributing paucity of patent pools to outmoded antitrust law). But see Laura G. Lape, A Narrow View of Creative Cooperation: The Current State of Joint Work Doctrine, 61 ALB. L. REV. 43, 51-74 (1997) (describing judicial hostility to and narrow interpretation of the joint work doctrine).
124. See Farley, supra note 48, at 9 (describing the emergent, community-based character of folklore); id. at 29-31, 33-35 (noting that the community-oriented character of indigenous art presents problems for copyright categories, including joint authorship).
125. See Camille Bacon-Smith, Spock Among the Women, N.Y. TIMES, Nov. 16, 1986, § 7 (book review).
126. For a discussion of a similar, but much earlier form of interactive writing among women's clubs, see Anne Ruggles Gere, Common Properties of Pleasure: Texts in Nineteenth Century Women's Clubs, in THE CONSTRUCTION OF AUTHORSHIP: TEXTUAL APPROPRIATION IN LAW AND LITERATURE 383, 391-92 (Martha Woodmansee & Peter Jaszi eds., 1994) [hereinafter THE CONSTRUCTION OF AUTHORSHIP].
127. See Chon, supra note 52, at 274 (describing the Internet Chain Art Project). Jane Ginsburg uses a variant of a story tree to explore some of the difficulties of copyright protection in cyberspace. See Jane Ginsburg, Putting Cars on the "Information Superhighway": Authors, Exploiters, and Copyright in Cyberspace, 95 COLUM. L. REV. 1466 (1995).
128. See Chon, supra note 52, at 266-69 (describing the difficulty of applying traditional copyright law to a similar Internet production, "Chain Art"); Farley, supra note 48, at 15-17, 56-57 (arguing that copyright law can provide some protection to folklore, but also describing serious limitations); Ginsburg, supra note 96, at 1498-99 (concluding that collective works have "uncertain" protection in cyberspace); Lape, supra note 93, at 74-76 (describing the difficulties for "joint work" copyright protection for the Internet's serial productions).
129. See ROSE, supra note 72, at 5-7; Boyle, supra note 9, at 56-57; Chon, supra note 52, at 263-64; Coombe, supra note 74, at 251-52, 256-57. Copyright law itself requires that a work be "fixed" for copyright to attach, a requirement that may allow outsiders to appropriate folk art, see Farley, supra note 48, at 27-29. For patent, see Shayana Kadidal, Subject-Matter Imperialism? Biodiversity, Foreign Prior Art and the Neem Patent Controversy, 37 IDEA 371, 389 (1997) (noting that the patent system favors large inventive leaps over knowledge acquired in "incremental inventive culture," but citing an incremental patent system derived from German patent law).
130. See ROSE, supra note 72, at 122, 128 (observing that although Shakespeare was treated as the quintessential lone genius in the emerging argument for copyright in the eighteenth century, he was in fact steeped in collaborative creation); Peter Jaszi, On the Author Effect: Contemporary Copyright and Collective Creativity, in THE CONSTRUCTION OF AUTHORSHIP, supra note 95, at 29, 38 (describing contemporary writing practice as "polyvocal");
131. Merges, supra note 90, at 164 (noting that although the bold individual is the darling of the intellectual property system, scientific research is in fact a group product); Martha Woodmansee, On the Author Effect: Recovering Collectivity, in THE CONSTRUCTION OF AUTHORSHIP, supra note 95, at 15, 24 (asserting that most contemporary writing is collaborative).
132. See supra text accompanying note 75.
133. See Shelley Wright, A Feminist Exploration of the Legal Protection of Art, 7 CANADIAN J. WOMEN & L. 59, 90-94, 96 (1994) (describing decisions denying protection to women's sewing craft productions and noting the marginalization of women under the myth of an artist as a romantic hero).
134. See Boyle, supra note 9, at 125-130; Kadidal, supra note 74, at 228-29; Roht-Arriaza, supra note 74, at 929-47.
135. See Chon, supra note 52, at 274 (describing an Internet Chain Art Project participant's sense that outsiders should not be able to appropriate chain artwork, e.g., for advertising); Gere, supra note 95, at 394 (noting that nineteenth century literary women's clubs allowed easy access among themselves but required permission for outsiders); Vibeke Sorensen, Thoughts of a Computer Artist, 75 OR. L. REV. 309, 315 (1996) (noting that artists use the Internet to allow their works to be seen for free, but may copyright it to prevent commercial use without credit); cf. Farley, supra note 48, at 14-15 (describing the indigenous concern that appropriation and reproduction rob artwork of significance and damage religion and culture). One intriguing possibility would be to treat emergent works as "performances" which might allow performers to block unauthorized "fixation." See Copyright Act of 1976, 17 U.S.C. § 101 (1996).
136. See Coombe, supra note 74, at 269 (observing that claims of non-Western people may put categories of intellectual property under scrutiny).
137. An important exception is Robert Merges, see supra notes 90 and 92; another is Margaret Chon, see supra note 52, at 275-76 (describing benefits of expanding "joint work" category for copyright protection).
138. OSTROM, supra note 91, at 8-13 (attacking the theories of either "Leviathan" or "privatization" as the "only way" to solve problems of the commons).
139. See id. at 15-21, 24-25.
140. Merges, supra note 90, at 160-62; Merges, supra note 92, at 1322-23.
141. THEODORE STEINBERG, SLIDE MOUNTAIN, OR, THE FOLLY OF OWNING NATURE 48-50 (1995).
142. See CAROLYN MERCHANT, THE DEATH OF NATURE 185-90, 287-88 (1980) (describing a seventeenth century intellectual transformation in the concept of nature);
143. see also MURRAY BOOKCHIN, THE MODERN CRISIS 49-76 (1986) (rejecting capitalist institutions as hierarchical and divisive, whereas "social ecology" recognizes nature as holistic, interactive);
144. Angus Write, Who Owns Nature? Property, Privilege, and Ecology in the Americas (Feb. 20, 1998) (typescript, on file with the author) (attributing environmental degradation to property).
145. But see Jim Dodge, Living by Life: Some Bioregional Theory and Practice, in PETER C. LIST, RADICAL ENVIRONMENTALISM: PHILOSOPHY AND TACTICS 108, 115-16 (1993) (rejecting "land aristocracy" but describing buying land as a good "bioregionalist" tactic).
146. See, e.g., J. Peter Byrne, Ten Arguments for Abolition of the Regulatory Takings Doctrine, 22 ECOLOGY L.Q. 89 (1995).
147. An early discussion was J.H. DALES, POLLUTION, PROPERTY AND PRICES: AN ESSAY IN POLICY-MAKING AND ECONOMICS (1968).
148. Somewhat later, among others, was T.H. TIETENBERG, EMISSIONS TRADING: AN EXERCISE IN REFORMING POLLUTION POLICY (1985).
149. See, e.g., Bruce A. Ackerman & Richard B. Stewart, Reforming Environmental Law: The Democratic Case for Market Incentives, 13 COLUM. J. ENVTL. L. 171, 178-88 (1988) (arguing for tradable emission rights);
150. Richard B. Stewart, Environmental Regulation and International Competitiveness, 102 YALE L.J. 2039, 2093-97 (1993) (arguing for tradable emission rights in conjunction, with other market-based incentive systems for environmental protection).
151. Richard Stewart, Privprop, Regprop, and Beyond, 13 HARV. J.L. & PUB. POL'Y 91, 93 (1990);
152. see also James E. Krier, Marketable Pollution Allowances, 25 U. TOL. L. REV. 449, 449 (1994) (using phrase "hybrid property rights" for emission allowances).
153. See Robert W. Hahn & Robert N. Stavins, Incentive-Based Environmental Regulation: A New Era from an Old Idea?, 18 ECOLOGY L.Q. 1, 8-10 (1991) (describing marketable permit systems).
154. See, e.g., James T.B. Tripp & Daniel J. Dudek, Institutional Guidelines for Designing Successful Transferable Rights Programs, 6 YALE J. ON REG. 369, 377-82 (1989) (including transferable development rights among property approaches to environmental management).
155. See generally JOHN COSTONIS, SPACE ADRIFT (1974) (describing TDRs);
156. Norman Marcus, Air Rights Transfer in New York City, 36 LAW & CONTEMP. PROBS. 372 (1971) (describing TDRs).
157. Transferable development rights were also important in Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978). For a critique of TDRs, see F. JAMES & D. GALE, ZONING FOR SALE: A CRITICAL ANALYSIS OF TRANSFERABLE DEVELOPMENT RIGHTS PROGRAMS 31-34 (1977) (arguing that TDRs act as a tax on new development).
158. 42 U.S.C. §§ 7401, 7651-7651o (1990).
159. See, e.g., Maura Donal, Smog in Much of Basin Down 50%, Study Says, L.A. TIMES, July 21, 1992, at Al (describing smog control, including a new scheme for tradable pollution credits).
160. See William E. Taylor & Mark Gerath, The Watershed Protection Approach: Is the Promise About to be Realized?, NAT. RESOURCES & ENV'T, Fall 1996, at 16, 20 (describing several water pollution trading schemes).
161. See RIGHTS-BASED FISHING (Philip A. Neher et al. eds., 1988) (containing articles on various forms of transferable quotas in fishing).
162. See, e.g., Climate Change: More than 2,400 Scientists Call for U.S. to Have Emission Control Plan by December [May 1, 1997 to April 30, 1998], 28 ENV'T REP. (BNA) 404 (June 27, 1997) (calling for industrial nations to develop emission allowance trading programs and to sponsor emission offset projects in less developed nations).
163. See, e.g., Gary E. Marchant, Global Warming: Freezing Carbon Dioxide Emissions: An Offset Policy for Slowing Global Warming, 22 ENVTL. L. 623, 645-46, 648 (1992) (discussing the monitoring and administration requirements for sulfur dioxide trading programs, and surrounding difficulties).
164. See Sharon Hatch Hodge, Comment, Satellite Data and Environmental Law: Technology Ripe for Litigation Application, 14 PACE ENVTL. L. REV. 691, 701-04 (1997) (describing the use of satellite technology to monitor global atmospheric pollution and international consumption of natural resources);
165. James Gustave Speth, EPA Must Help Lead an Environmental Revolution in Technology, 21 ENVTL. L. 1425, 1452 (1991) (noting the role of remote sensing, among other technologies, in monitoring global pollution).
166. See Marchant, supra note 122, at 634-35 (pointing out that the United States has developed administrative expertise in emissions trading, although not in emissions taxes); see also Tripp & Dudek, supra note 116, at 377-88 (describing lessons from existing environmental rights trading schemes used by various states).
167. See, e.g., Daniel J. Dudek et al., Environmental Policy for Eastern Europe: Technology-Based versus Market-Based Approaches, 17 COLUM J. ENVTL L. 1, 16-18, 28-31 (1992) (arguing that the American experience with market-based approaches can be instructive for Eastern European pollution control).
168. See, e.g., NANCY LEE PELUSO, RICH FOREST, POOR PEOPLE: RESOURCE CONTROL AND RESISTANCE IN JAVA 235-37 (1992) (describing how state commanded systems have failed to preserve Indonesian forests, and arguing that local populations should be integrated into forest management to deal with this problem);
169. R. David Simpson & Roger A. Sedjo, Contracts for Transferring Rights to Indigenous Genetic Resources, RESOURCES, Fall 1992, at 1 (discussing contracts for sharing pharmaceutical royalties with rainforest countries);
170. Eric Weiner, Ecotourism: Can It Protect the Planet?, N.Y. TIMES, May 19, 1991, § 5, at 15 (discussing recruitment of locals in ecotourism).
171. Lee P. Breckenridge, Protection of Biological and Cultural Diversity: Emerging Recognition of Local Community Rights in Ecosystems Under International Environmental Law, 59 TENN. L. REV. 735 (1992).
172. See John A. Baden & Robert Ethier, Montana's Wolf Experiment: Carrots and Carnivores, SEATTLE TIMES, July 22, 1992, at A9 (describing a wildlife conservation group's program to pay landowners where wolves successfully reproduce).
173. See Benson, supra note 24, at 367 (citing Barton Thompson's comments that "ownership" of water is too simplistic a concept); Sax, supra note 24, at 944, 950-51 (noting changing public claims on water).
174. See Individual Transferable Fish Harvest Privileges: Hearings Before the Subcomm. on Fisheries of the House Comm. on Merchant Marine and Fisheries, (1994) (testimony of the Environmental Defense Fund) [hereinafter Hearings] (noting that New Zealand's definition of individual fishing quota rights required costly buy-back of rights when it turned out that available catch limit had been set too high);
175. see also Carrie A. Tipton, Protecting Tomorrow's Harvest: Developing a National System of Individual Transferable Quotas to Conserve Ocean Resources, 14 VA. ENVTL. L.J. 381, 411-12 (1995) (discussing concerns over takings claims in planning American ITQ fisheries).
176. Clean Air Act, 42 U.S.C. § 7651b(f) (1995) (stating that a sulfur dioxide emission allowance "does not constitute a property right").
177. See Carol M. Rose, Environmental Lessons, 27 LOY. L.A. L. REV. 1023, 1024-26 (1994).
178. See RIGHTS-BASED FISHING, supra note 120, at 117, 140-42 (discussing the difficulty of controlling discarding of by-catch in ITQ regimes).
179. See Tipton, supra note 130, at 414 (noting the substitution problem).
180. See RIGHTS-BASED FISHING, supra note 120, at 115 (noting that ITQs may give incentives to excessive discarding of non-target fish and less valuable target fish, with consequences for larger ecology).
181. This is the pattern of the popular Duck Stamp Act, 16 U.S.C. § 718 (1996). A similar pattern has also been suggested for tradable emission rights, see Ackerman & Stewart, supra note 113, at 180-81 (arguing for the auction of emission rights with auction fees returning to environmental agencies).
182. See Taylor & Gerath, supra note 119, at 20 (noting that the bulk of the trading burden may fall on point sources).
183. This is also a concern raised by conventional command and control regulation, which regulates point sources more heavily than non-point sources.
184. For distortions under command and control regulations, see Sierra Club v. Abston Construction Co., 620 F.2d 41 (5th Gir. 1980) (noting that under command and control regulations, wastes channeled into sediment basins are regulated more heavily, as point sources, than unchanneled "non-point" wastes); ALLSTON CHASE, PLAYING GOD IN YELLOWSTONE: THE DESTRUCTION OF AMERICA'S FIRST NATIONAL PARK 18-30, 36-37, 50-53 (1986) (criticizing sharply Park Service's management of Yellowstone for capitulation to elk hunters, effectively inducing the Service to manage the park as a breeding ground for elk, even though elk's browsing habits drove out other species).
185. For a brief overview of the growing concern regarding environmental justice issues, see Richard J. Lazarus, Pursuing "Environmental Justice": The Distributional Effects of Environmental Protection, 87 NW. U. L. REV. 787, 801-06 (1993), and sources cited therein.
186. Robert W. Collin, Environmental Equity: A Law and Planning Approach to Environmental Racism, 11VA. ENVTL. L.J. 495, 509-10 (1992).
187. For the somewhat under-studied role of women in grassroots environmental
188. and Ronald Alsop, Amateur Ecologists: Local Citizen Groups Take a Growing Role Fighting Toxic Dumps, WALL ST. J., Apr. 18, 1983 (describing opponents to toxic sites as blue collar; pointing out the role of housewives).
189. See William Glaberson, Coping in the Age of "Nimby", N.Y. TIMES, June 19,1988, § 3, at 1 (describing the consultant's effort to find demographic characteristics least likely to resist waste siting decisions - e.g., small-town, rural, conservative, low income, etc.).
190. Collin, supra note 141, at 509-10. The PIBBY acronym is from ROBERT D. BULLARD, DUMPING IN DIXIE: RACE, CLASS AND ENVIRONMENTAL QUALITY 5 (1990).
191. In the environmental justice context, a command and control regulation now protects against governmental agencies' ignoring the interests of poor and minority communities. Executive Order Number 12989, 3 C.F.R. 859 (1994), reprinted in 42 U.S.C.A. § 4321 (1994) requires federal agencies to analyze disproportionate health or environmental effects of federal actions on minority and low income populations.
192. See Vicki Been, Analyzing Evidence of Environmental Justice, 11 J. LAND USE & ENVTL. L. 1, 21 (1995) (arguing that issues of income, class, education, and employment are as important or more important than race in sitings).
193. For a review of some of the controversies, particularly concerning statistical studies, see id. at 1-4, and sources cited therein. Professor Been has also stressed the importance of distinguishing cases in which unwanted uses are sited from the outset in predominantly minority neighborhoods, from other cases in which minority members disproportionately move into the vicinity of such a site because the site makes nearby land cheaper, see Vicki Been, Locally Undesirable Land Uses in Minority Neighborhoods: Disproportionate Siting or Market Dynamics?, 103 YALE L.J. 1383 (1994).
194. See Hearings, supra note 130 (calling for "iron-clad harvest limits" in "virtually every fishery" in order for ITQs to be effective); Tipton, supra note 130, at 414-15 (calling for a multi-species version of ITQs).
195. See supra text accompanying notes 21-28.
196. See, e.g., Howard Latin, Ideal versus Real Regulatory Efficiency: Implementation of Uniform Standards and "Fine-Tuning" Regulatory Reforms, 37 STAN. L. REV. 1267-73 (1985) (expressing concern that economic incentives and property-based approaches may be impracticable in application and should not displace command and control).
197. See id. at 1270-71, 1302 (describing command and control as the "second-best" solution).
198. See Bill Devall, The Deep Ecology Movement, 20 NAT. RESOURCES J. 299, 309-13 (1980).
199. EUGENE P. ODUM, FUNDAMENTALS OF ECOLOGY 408 (3d ed. 1971) (arguing that environment change must be understood as a complex whole, rather than "on the basis of isolated projects");
200. see also GEORGE P. MARSH, THE EARTH AS MODIFIED BY HUMAN ACTION 33-41 (2d ed. 1882) (describing the interconnectedness of nature and the destructiveness of human interventions).
201. See, e.g., Cymie Payne, Foreword to the Ecosystem Approach: New Departures for Land and Water, 24 ECOLOGY L.Q. 619 (1997) (suggesting that the first hallmark of ecosystem management is "taking the ecosystem as a unit to be managed and regulated"). Despite the considerable anti-bureaucratic strain in "deep ecology" and some of the more radical strains of environmentalism, writers contemplate considerable control over human activities. See, e.g., Devall, supra note 151, at 313 (rejecting bureaucratic control but calling for the designation of large areas of the earth as "off limits" to dense human settlement or development).
202. See Devall, supra note 151, at 315-16 (citing P. BERG & R. DASSMANN, REINHABITING A SEPARATE COUNTRY (1978)) (calling for community regeneration of ecosystems, using Native American communities as model);
203. see also PETER C. LIST, RADICAL ENVIRONMENTALISM 12 (1993) (explaining the "bioregionalism" philosophy of Murray Bookchin and others as an environmentalist theory of integrating human and natural systems in local places);
204. Gary Snyder, The Place, the Region and the Commons, in THE PRACTICE OF THE WILD 25-47 (1990) (discussing "growing into a natural community" from a Native American perspective); Breckenridge, supra note 127, at 738-39 (summarizing convergent human rights and environmentalist perspectives by focusing on the protection of indigenous peoples within given ecosystems).
205. Alison Rieser, Property Rights and Ecosystem Management in U.S. Fisheries: Contracting for the Commons?, 24 ECOLOGY L.Q. 813, 824-27 (1997).
206. See Gisli Palsson, Learning by Fishing: Practical Science and Scientific Practice, in PROPERTY RIGHTS IN A SOCIAL AND ECOLOGICAL CONTEXT: CASE STUDIES AND DESIGN APPLICATIONS 85, 93-94 (Susan Hanna & Mohan Munasinghe eds. 1995) (attributing environmental degradation, waste, and eroding responsibility to the institution of privatization on former communal regimes).
207. Rieser, supra note 155, at 824 (noting the ability of community fisheries to police habitat, prevent pollution, and coordinate with other fishing communities to enhance the fishery ecosystems).
208. See, e.g., ACHESON, supra note 35, at 74-76, 153-59 (illustrating that perimeter-defended areas protect the lobster population better than nucleated areas around the Green, Metinic, and Monhegan Islands).
209. See id. at 76-77 (describing lobster fishing norms among the fishermen within the territorial systems); see also Rieser, supra note 155, at 826-27 (describing community management as more nuanced than government regulation, including ITQs).
210. Eric T. Freyfogle, Ethics, Community, and Private Land, 23 ECOLOGY L.Q. 631, 640-41, 652-55 (1996) (describing the historic connections between community membership and land use, suggesting modern ecological equivalents).
211. Kim Sebold, We Turn to Mother Earth: The Reclamation of Maine's Salt Marshes (Mar. 7, 1997) (unpublished manuscript presented to the American Society for Environmental History, on file with the author) (describing Maine salt marsh organizations and legal structures).
212. See Jake Page, Ranchers Form a 'Radical Center' to Protect Wide-Open Spaces, SMITHSONIAN MAG., June 1997, at 50 (discussing the Maipai Borderlands Group uniting to manage resources);
213. Interview by Carol M. Rose with Laurie Fowler, Exec. Dir., Georgia Environmental Policy Institute (Apr. 3, 1997); Interview with Luther Probst, Exec. Dir., Sonoran Institute (May 5, 1997); see also Federico Cheever, Public Good and Private Magic in the Law of Land Trusts and Conservation Easements: A Happy Present and a Troubled Future, 73 DENV. U. L. REV. 1077 (1997) (discussing the possibilities and pitfalls of the legal devices for conservation). The forthcoming American Law Institute's Third Restatement of Servitudes, may make such efforts easier by simplifying the complex law of easements and covenants. The reform could make it easier for participants in preservation groups to organize their respective rights and obligations. However, this Restatement could also present difficulties; see generally id. at 1099 (describing the potential destruction of land trusts under doctrines in Third Restatement).
214. See Rose, supra note 50, at 739-44. Courts in the United States were more hostile to customary claims, partly because of the feudal origin of such claims and partly because their informal governance role seemed contrary to constitution-based government. See id. at 741-43; see also Fred Bosselman, Limitations Inherent in the Title to Wetlands at Common Law, 15 STAN. ENVTL. L.J. 247, 273-88 (1996) (describing the medieval English commons in the wetlands as controlled by the "fen people").
215. See ROSE, supra note 16, at 163 (discussing riparian regimes); see also RIPARIAN RIGHTS, NEW PALGRAVE DICTIONARY OF LAW AND ECONOMICS (forthcoming 1998).
216. See Louise A. Halper, Nuisance, Courts and Markets in the New York Court of Appeals, 1850-1915, 54 ALB. L. REV. 301, 349-54 (1990) (describing the spirit of compromise of turn-of-the-century nuisance law).
217. An important book attacking the idea of a "balance of nature" is DANIEL B. BOTKIN, DISCORDANT HARMONIES: A NEW ECOLOGY FOR THE TWENTY-FIRST CENTURY (1990).
218. See also A. Dan Tarlock, The Nonequilibrium Paradigm, in Ecology and the Partial Unraveling of Environmental Law, 27 LOY. L.A. L. REV. 1121 (1994) (describing the implications of Botkin's ideas for environmental management).
219. See generally Colloquy: Beyond the Balance of Nature: Environmental Law Faces the New Ecology, 7 DUKE ENVTL L. & POL'Y REV. 1 (1996) (regarding a symposium on new ecological models and their legal implications).
220. See Tarlock, supra note 166, at 1139-40.
221. See ROSE, supra note 16, at 125-26 (describing hostility of American courts to customary communities); see also EVAN MCKENZIE, PRIVATOPIA: HOMEOWNER ASSOCIATIONS AND THE RISE OF RESIDENTIAL PRIVATE GOVERNMENT (1994) (critical description of private communities).