Scaling Property with Professor Ellickson

Bob Ellickson's work is so wide-ranging, thought-provoking, and important that doing it justice here is an impossibility - so I will admit defeat on that score at the outset. Instead, I want to focus on one recurring theme that runs through much of his scholarship and that has been especially important to my own thinking about property: that scale matters. Ellickson cashes out this idea in many rich and interesting ways, but I will use three broad propositions that emerge from his work as a way of organizing my remarks. First, that the scale at which activities and events unfold should drive choices among property arrangements. Second, that the institutions for managing property should be scaled to fit the relevant action. Third, that scale should factor into our normative evaluations of the societal impacts of various institutional and property arrangements. I. SCALING PROPERTY REGIMES Ellickson's 1993 article, Property in Land,1 is a masterful theoretical treatment of the problem of scale as it relates to property ownership arrangements. One of its central insights is that stmcturing access to property, through the positioning of boundaries or otherwise, is not a zero-sum game.2 Resource users can collectively achieve gains by appropriately configuring property arrangements - whether as individual owners working small parcels, households on somewhat larger tracts, small groups on tiny limited-access commons, or much larger groups sharing common fields.3 The trick is to scale land holdings so that the most valuable activities can be pursued most efficiently. Following Harold Demsetz, Ellickson explains that individuallyowned parcels do a good job of containing both the positive and negative impacts of "small events" such as the cultivation of tomato plants, and thus successfully align the parcel owner's incentives for such events.4 Individual parcel ownership also works comparatively well in addressing a "medium event" like building a dam across a stream, given the relative ease of bargaining with an affected neighbor or two, and the relative difficulty of getting a larger group to agree to anything.5 But Ellickson does not uncritically conclude that individual parcel ownership is always best. Instead, he considers how changes in returns to scale could alter the picture. Growing individual tomato plants may not require much land, but there are economies of scale for some land uses, such as grazing.6 Bigger parcels also economize on fencing,7 but introduce new governance challenges within the fence.8 Whether moving the fence outward is worth it depends in part on whether coordination across large areas will be required to use the land optimally - if so, then it may be easier to coordinate with co-owners inside an expanded fence than to strike bargains with a multiplicity of separate parcel holders.9 In making these tradeoffs, Ellickson explains, we want to know not only about economies of scale in production, but also about the prevalence of "large events" (he gives the example of a "smoky fire") that are likely to affect many parcels simultaneously.10 In Ellickson's recent work on the household, he shows that similar scale considerations emerge in choosing the number of people with whom to share a dwelling.11 There are economies of scale in sharing amenities like space, shelter, heat, and meals, but diseconomies with respect to privacy, control over one's environment, and pursuit of preferred activities.12 If the household is mostly about fostering intimate relationships and personal expression and less about efficiently producing and consuming heat and food, the choice will be made differently than if the priorities are flipped - and changes in social and economic conditions could alter the equation.13 A foundational challenge, of course, is that multiple activities with varying efficient scales are often pursued simultaneously or sequentially on particular property holdings.14 As Ellickson observes, there are a variety of strategies available to contend with this problem, none of them costless. …