Emerging Commons and Tragic Institutions,
37 Envtl. L. 515,
Available at: https://digitalcommons.law.byu.edu/faculty_scholarship/259
common pool resources, institutional rigidity, institutional lock-in, tragedy of the commons, CRPs, commons, competing values, rival uses, natural resources, institutions, new institutionalism, transaction costs
For the past forty years, scholars have developed an immense literature devoted to understanding and solving the tragedy of the commons. The most prominent solutions to this tragedy have focused on building and maintaining stable institutions. This Article reexamines this foundational literature by exploring the costs of stability. In many cases, far more than is generally recognized, the way we value the commons changes. When values change, stable institutions that once made perfect sense become rigid institutions that block change. This Article explains how institutions most able to solve the tragedy of the commons often cause a tragedy of another sort. To ground theory in practice, this Article examines three case studies: the United States' governance of the radio spectrum, the founding of Yellowstone National Park, and western water law. This Article ends by proposing a set of draft principles to help us overcome institutional rigidity. For decades, commons scholarship has focused on the tragedy of overuse. This Article re-frames the commons debate, explicitly taking into account not only the benefits of stable institutions but also their costs.