The Philosophical Origins of Modern Contract Doctrine

Gordley, James

doi:10.2307/1122985

Cited by 109 publications

(34 citation statements)

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“…Regulations often occasion a dysfunctional fragmentation of property rights. Such distortions may have a pervasive impact on the final allocation of resources, surpassing, by a large measure, the of the ideal of economic and intellectual freedom espoused by liberal political theory (Gordley, 1991). Continental European contract theory applied the notion of freedom of contract to a wide range of situations.…”

Section: Dual Remedies For a Unified Propertymentioning

confidence: 99%

Duality in Property: Commons and Anticommons

Parisi

Schulz

Depoorter

2005

International Review of Law and Economics

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Standard-Nutzungsbedingungen:Die Dokumente auf EconStor dürfen zu eigenen wissenschaftlichen Zwecken und zum Privatgebrauch gespeichert und kopiert werden.Sie dürfen die Dokumente nicht für öffentliche oder kommerzielle Zwecke vervielfältigen, öffentlich ausstellen, öffentlich zugänglich machen, vertreiben oder anderweitig nutzen.Sofern die Verfasser die Dokumente unter Open-Content-Lizenzen (insbesondere CC-Lizenzen) zur Verfügung gestellt haben sollten, gelten abweichend von diesen Nutzungsbedingungen die in der dort genannten Lizenz gewährten Nutzungsrechte. Terms of use: Documents in EconStor may DUALITY IN PROPERTY: COMMONS AND ANTICOMMONSABSTRACT: Commons and Anticommons problems are the consequence of symmetric structural departures from a unified conception of property. In this paper, we endeavor to provide a dual model of property, where commons and anticommons problems are the consequence of a lack of conformity between use and exclusion rights. The general model is then extended to consider the different equilibria obtained under vertical and horizontal cases of property fragmentation. The paper concludes with a hypothesis of legal rules for promoting unity in property and suggests a list of possible areas of application.A new term of art has recently gained acceptance among law and economics scholars of property law: the anticommons. The concept, first introduced by Michelmann (1982) and then made popular by Heller (1998 and, is a mirror-image -in name and in fact -of Hardin's (1968) well known tragedy of the commons.In situations where multiple individuals are endowed with the privilege to use a given resource without a cost effective way to monitor and constrain each other's use, the resource is vulnerable to overuse: a problem known as the tragedy of the commons.Symmetrically, when multiple owners hold rights to exclude others from a scarce resource and no one exercises an effective privilege of use, the resource might be prone to underuse: a problem known as the tragedy of the anticommons.We build upon this definition of the anticommons, which still lacks an accepted general formalization in the literature. We endeavor to provide a dual model of property, where commons and anticommons problems are shown to result from symmetrical structural departures from a unified conception of property. Specifically, both problems result from a lack of conformity between use and exclusion rights. 4 We then extend the basic model to consider vertical and 4 In a related paper, we utilize this conception of unified property to explain the rise and fall of functional conceptions 2 asymmetric forms of anticommons. We conclude by exploring possible applications of the concept of anticommons and highlighting the relevant policy implications in the choice of rules for minimizing the social cost of non-conforming property arrangements. Commons and Anticommons: Two Tragedies on Common GroundBoth commons and anticommons problems result from a misalignment of private and social incentives of two or more individuals i...

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Section: Dual Remedies For a Unified Propertymentioning

confidence: 99%

Duality in Property: Commons and Anticommons

Parisi

Schulz

Depoorter

2005

International Review of Law and Economics

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“…This raises questions about the extent to which they can provide informed consent for the use of their personal information for commercial purposes (e.g., data mining, targeted advertising, exploitation of user-generated content). This suggests that the liberal theory view of contract law as an instrument for enforcing promises (Gordley, 1991) between equal and aware partners must be tempered with detailed empirical examination of young peoples' understandings of online privacy and related social practices. This will enable service providers and policy makers to reduce the potential risks associated with the potentially damaging fiction that young people are sufficiently well informed and able to agree to these policies.…”

Section: Terms Of Servicementioning

confidence: 99%

Young people, disclosure of personal information and online privacy: Control, choice and consequences

Bryce

Klang

2009

Information Security Technical Report

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“…Gordley, 1991). This view is tempered with the fact that the contract is seen as an agreement where the wills of the contracting parties are in accord.…”

Section: Contract Theory Revisitedmentioning

confidence: 99%

Spyware ? the ethics of covert software

Klang

2004

Ethics Inf Technol

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Many computer users are happy to be oblivious of the workings within the machine and yet on some level it is important to know what is occurring therein. This paper discusses an unusual type of surveillance software which may be installed in many computers. The strange aspect of this software is that it has often been downloaded and installed by the user, but without her knowledge. The software is mainly designed to collect information about the user of the computer and relay this information back to the software manufacturer. The download, installation, data collection and data transfer all take place within the users own computer but very seldom with the users knowledge. It is the intention of this paper to describe the technology involved and thereafter discuss how this new technology is affecting the online privacy debate. The paper continues to discuss the basis for legitimacy of technology and also the current level of technological deterrents available. The paper concludes with a comparison of two approaches at resolving the current problem, via legislation or the market approach.

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The Philosophical Origins of Modern Contract Doctrine

Cited by 109 publications

References 0 publications

Duality in Property: Commons and Anticommons

Duality in Property: Commons and Anticommons

Young people, disclosure of personal information and online privacy: Control, choice and consequences

Spyware ? the ethics of covert software

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