The Private Ownership of Access to Common Resources

From public lands to beaches and to data, our society is rich with resources purposefully kept in the public domain. Common resources provide profound economic, social, and democratic value to individuals, communities, and society as a whole. These, however, depend on the public’s ability to access its resources. Today, access to many common resources is owned by private entities, who can exclude others from the resource, appropriate its value, and deny it from others. Attempts to secure public access to common resources tend to focus on the State and are often met with disappointing outcomes. This Article offers a novel, private law perspective to the problem. Applying Calabresi and Melamed’s “Cathedral” analysis to the ownership of access to common resources it argues that, unlike the current property rules protection of access-ownership, liability rules protection of the entitlement would extend common resources’ accessibility; prevent their appropriation by access-owners; and facilitate voluntary trade in access-rights. The Article further addresses internal and external challenges to the liability rules solution, including: access-owners’ investment in the common resource; their role as gatekeeping; and the claim that the liability rules solution to the problem of common resources inaccessibility and appropriation would constitute (judicial) taking