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The Several Futures of Property: Of Cyberspace and Folk Tales, Emission Trades and Ecosystems, 83 Minnesota Law Review 129 (1998)


Private property has long been associated with gloomy images—the rapaciousness of various Robber Barons on the one hand, the musty casuistry of future interests and the Rule Against Perpetuities on the other. But in the late twentieth century, property seems blessed with a bright, perhaps even glamorous future. This article is an essay to predict that future—that is, to predict at least some of the directions that the institution of property is likely to take over the next generation.

Property has always been one of the chief ways through which human beings have avoided what is alleged to be the "tragedy of the commons." That is the situation in which unowned and unmanaged common resources are available to all, with the consequence that entrants crowd onto these resources, overusing them and underinvesting in their maintenance and improvement. One chief rival to property in allaying the "tragedy" has been a system of directives from above: command and control governmental regimes avoid the tragedy through the application of central planning and administration. But today, in the era following the general disillusionment with Marxist economics, property and its close companion, contract, at least in theory have all but swept away command and control as a device for managing resources. From the demise of the authoritarian socialist regimes, we have taken the lesson that modern economies need not the centralization of direct governmental control, but rather the decentralization associated with property and contract.

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