In his essay on the commons scholarship of Carol Rose, Michael Heller deploys an epoch-spanning synopsis of Western society's passion for the oyster to make his case for a Rose theorem. Professor Heller posits that the work of Carol Rose sets out a testable theory: law emerges from and is shaped by the interactions of human culture with nature and natural resources. The oyster's survival across the ages, he suggests, is due to this process, a "constantly shifting matrix of strategies, simultaneously public and private, individual and community, and on their constant renegotiation and interpolation."
Professor Heller's is indeed an engaging account, and he is certainly correct that the oyster's story challenges the neoclassical economic account of the evolution of property rights. But as an account of what the oyster's story contributes to our ideas about common resources, it is incomplete. And Heller surely has not gone far enough in looking at the scholarship of Carol Rose from the point of view of the oyster. By failing to bring the story into the twenty-first century, Heller misses most of what the oyster's story tells us about human institutions.
"Oysters, Ecosystems, and Persuasion,"
Yale Journal of Law & the Humanities:
3, Article 3.
Available at: http://digitalcommons.law.yale.edu/yjlh/vol18/iss3/3