Publications
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The Boundaries of Private Property
April 1999
The American law of property encourages people to create wealth by breaking up and recombining resources in novel ways. But fragmenting resources proves easier than putting them back together again. Property law responds by limiting the one-way ratchet of fragmentation. Hidden within the law is a boundary principle that keeps resources… more »
Application-Centered Internet Analysis
March 1999
Much Internet scholarship tends to analyze the Internet at an inappropriate level of abstraction; focusing on the Internet as one “medium,” when - by design - nearly all of the significant facts for certain questions are to be found at the level of the application and its associated protocols. The article… more »
Revaluing Restitution: From the Talmud to Postsocialism (Reviewing Hanoch Dagan's Unjust Enrichment)
January 1999
Whatever happened to the study of restitution? Once a core private law subject along with property, torts and contracts, restitution has receded from American legal scholarship. Hanoch Dagan’s book “Unjust Enrichment: A Study of Private Law and Public Values” threatens to reverse the tide and make restitution interesting again. The book… more »
Making Something Out of Nothing: The Law of Takings and 'Phillips v. Washington Legal Foundation'
January 1999
Phillips v. Washington Legal Foundation, 118 S Ct 1925 (1998), held that interest generated by the Texas Interest on Lawyers Trust Account (IOLTA) program is the “private property” of the clients who handed over the principal; the Court did not decide whether the IOLTA program worked a “taking,” or, if it… more »
Deterrence and Distribution in the Law of Takings
January 1999
Supreme Court decisions over the last three-quarters of a century have turned the words of the Takings Clause into a secret code that only a momentary majority of the Court is able to understand. The Justices faithfully moor their opinions to the particular terms of the Fifth Amendment, but only by… more »
Can Patents Deter Innovation? The Anticommons in Biomedical Research
May 1998
The “tragedy of the commons” metaphor helps explain why people overuse shared resources. However, the recent proliferation of intellectual property rights in biomedical research suggests a different tragedy, an “anticommons” in which people underuse scarce resources because too many owners can block each other. Privatization of biomedical research must be more… more »
The Tragedy of the Anticommons: Property in the Transition from Marx to Markets
January 1998
Why are many storefronts in Moscow empty while street kiosks in front are full of goods? This article develops a theory of anticommons property to help explain the puzzle of empty storefronts and full kiosks. Anticommons property can be understood as the mirror image of commons property. By definition, in a… more »
Analysis of the Legal and Economic Determinants of Integration in Latin America: The Case of Mercosur
Economic integration and growth in trade within the Latin American region have created a need for new and major legal developments. In this context, the private sector has emerged as the driving force behind legal initiatives related to trade agreements such as the Andean Pact and MERCOSUR (Common Market of the… more »
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