Ostrom and the lawyers: The impact of Governing the Commons on the American legal academy

Carol M Rose

doi:10.18352/bmgn-lchr.254

Abstract

<span style="font-size: 12pt; font-family: "Times New Roman"; mso-bidi-font-size: 10.0pt; mso-fareast-font-family: 'Times New Roman'; mso-ansi-language: EN-US; mso-fareast-language: EN-US; mso-bidi-language: AR-SA;">American legal academics began to cite Elinor Ostrom's <em>Governing the Commons </em>(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, fluid change and egalitarianism.</span>

Highlights

Lawyers are sometimes called “hired guns.” They have a reputation for willingness to argue any case, on any subject, on any side of the argument, and with any rhetorical tools they can find, mixed and matched in any way that advances theirThe impact of Governing the Commons on the American legal academy positions
That legal academics pounced on Elinor Ostrom’s wonderful book Governing the Commons quite soon after its 1990 appearance – but small wonder as well that some have taken its ideas in directions that may be irksome to Ostrom and her closest adherents
If there is anything that is interesting about the legal scholars’ response to Governing the Commons (GC), it has been the manner in which academic lawyers are caught between the attraction of GC’s community-based norms on the one hand, and the legal conception of a High Modernist property on the other

Summary

Introduction

Lawyers are sometimes called “hired guns.” They have a reputation for willingness to argue any case, on any subject, on any side of the argument, and with any rhetorical tools they can find, mixed and matched in any way that advances their. The impact of Governing the Commons on the American legal academy positions. This is not to say that there are no such things as ethical standards for attorneys. The profession as a whole requires a certain quality of argumentative flexibility Perhaps it is not surprising, that the academic branch of lawyering is eclectic to a fault, borrowing ideas and concepts from any source that generates them. Ostrom’s relationship to economic scholarship has a familiar feel to lawyers She has a Nobel Prize in economics, but she is a political scientist by training, and her work is outside the mainstream of conventional microeconomics, being much more focused on institutions and the way that people think about them and make them work. I will conclude with some remarks about the ways in which these differences may (or may not) be bridged

GC’s arc in the legal literature

GC and legal property theory

GC and the environmental law scholars

GC and intellectual property

Conclusion