What makes common interest developments (CIDs) interesting for legal theory? In my view, CIDs should provoke our interest because they operate at the intersection of two axes of contemporary legal scholarship. The first axis concerns rights allocation, what I have called the spectrum from commons to anticommons property. The second axis concerns governance institutions, which can occupy the space between private and public. These two dimensions define the theoretical field within which we create new forms of group property, and through which we solve emerging collective action dilemmas. CIDs are located at this crossroads, delicately poised between extremes on both the rights allocation and the decision-making axes.
A word on collective action dilemmas (CADs). They have become the legal scholar's full-employment program. With so few analytic arrows in our legal theory quiver, simple metaphors must do a lot of work. Both axes that I discuss in this essay could be understood as versions of CADs. The danger here is that the CAD perspective can easily expand to the point that it loses its bite: how do incentives shape community, when does law tame competition, and why do individuals ever cooperate? Looking at CIDs helps to bring the focus from these imponderable questions to more narrow and useful questions about creating well-functioning group property forms. We continue to be shocked to find cooperation in a CID world. Within CIDs, what explains virtuous cycles of cooperation and ameliorates vicious cycles of defection?
Law | Property Law and Real Estate
Michael A. Heller,
Common Interest Developments at the Crossroads of Legal Theory,
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/4220