Following the Civil War, black Americans began acquiring land in earnest; by 1920 almost one million black families owned farms. Since then, black rural landownership has dropped by more than 98% and continues in rapid decline – there are now fewer than 19,000 black-operated farms left in America. By contrast, white-operated farms dropped only by half, from about 5.5 million to 2.4 million. Commentators have offered as partial explanations the consolidation of inefficient small farms and intense racial discrimination in farm lending. However, even absent these factors, the unintended effects of old-fashioned American property law might have led to the same outcome. Because black farmers often did not make wills, their heirs took the land as co-owners. Over generations, co-owners multiplied, the farms became unmanageable, and the land was partitioned and sold, a seemingly inevitable "tragedy of the commons" in which too many owners waste a common resource. Black rural landownership may seem a dusty topic, peopled with hardscrabble tales of property past. Consider, though, the daunting possibility that property future – think biomedical research, post-apartheid restitution, hybrid residential associations, perhaps cyberspace – may have the same analytic structure, be subject to a similar punishing legal regime, and face the same fate as the black rural landowner.
Overcoming the tragic fate of commons property should not be so hard. Until now, however, legal theorists have often worked within a framework that makes happier solutions difficult to imagine. Typically, theorists have relied on a thin utilitarian language yoked to a narrow conceptual map of property. One school, worrying that rational owners will overconsume commons resources, has embraced the so-called Biackstonian image of private property with "sole and despotic dominion" at the core. Another school, after showing how small, close-knit groups can successfully conserve commons resources if they sharply restrict exit, has advocated a version of commons property. For both schools, the image of tragic outcomes proves an ideal foil, one that implicitly points theorists toward their preferred normative solutions. Privatization seems inevitable for utilitarians with a liberal bent, because they believe that locking people together violates a fundamental concern for individual autonomy. By contrast, illiberal communitarian solutions seem relatively attractive to those who are ready to sacrifice individual autonomy for collective goals. While these underlying normative commitments drive the familiar debate over tragic outcomes, they never surface as the focus for analysis of commons resource management.
Law | Law and Philosophy | Property Law and Real Estate
Hanoch Dagan & Michael A. Heller,
The Liberal Commons,
Yale L. J.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/239