What IS a Tragedy of the Commons? Overfishing and the Campaign Spending Problem


Over the thirty-seven years since its publication, Garden Hardin's "Tragedy of the Commons" has clearly become one of the most influential writings of all time. The tragedy of the commons is one of those rare scholarly ideas that has had an enormous impact in academia and is also commonly used outside of academia. In legal scholarship, the tragedy of the commons has been used to characterize a wide variety of resource problems, including intellectual property rights, overcrowding of telecommunications spectra, air and water pollution, and of course, the classic environmental commons problem, overfishing. But I suggest this embarrassment of citation riches highlights the fact that although we invoke it often, we do not know exactly what constitutes a tragedy of the commons.

In an ideological policy battle between interventionists and libertarians – those that argue for and against governmental intervention – a true tragedy of the commons situation presents a potentially decisive argument in favor of intervention. In a true tragedy of the commons, resource users impose mutual externalities upon each other, creating a paternalistic justification for intervention. Of course, in over-exploiting a resource, resource users may also impose externalities upon a larger group that has some stake in the resource, such as the general public might have in clean air or water. This externality alone may be sufficient justification for intervening. But as I define it in this Article, a tragedy of the commons specifically involves a situation in which the resource users are detracting from their own ability to continue to exploit the resource. The need to save the resource users from themselves provides, independent of the need to internalize other large-group externalities, a particularly compelling case for governmental intervention. I use the definition set forth in this Article to analyze a problem that has not been previously recognized as a tragedy of the commons – the problem of ever-increasing political campaign expenditures.


Constitutional Law | Economics | Law and Economics | Law and Politics | Property Law and Real Estate | Public Law and Legal Theory

Date of this Version

February 2005