A Common Tragedy: Condemnation and the Anticommons


Abstract: Economic development of land may be suboptimal where multiple parties have the legal right to exclude use of the property in question. Michael Heller labeled this phenomenon the ‘anticommons.’ It has been argued that condemnation of private property for economic development is a potentially efficiency-enhancing solution to the anticommons problem. Until recently, this argument was largely academic. However, with the recent Supreme Court decision in Kelo v. City of New London, condemnation for economic development is now a valid policy choice. In this paper, I argue that the economic models used to justify condemnation are fundamentally flawed and that the use of condemnation for economic development encroaches upon autonomy interests without promoting efficiency interests.


Economics | Land Use Law | Law and Economics | Property Law and Real Estate

Date of this Version

May 2006