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  1.  1
    The Banality of the Commons: Efficiency Arguments Against Common Ownership Before Hardin.Stuart Banner - 2018 - Theoretical Inquiries in Law 19 (2):395-407.
    The Tragedy of the Commons tends to be remembered today as the canonical statement of the idea that commonly-owned resources will be overused. But this idea was well known for centuries before Hardin wrote. Hardin acknowledged that he got the example of cattle in a common field from the early nineteenth century economist William Forster Lloyd, and by Lloyd’s time the idea was already familiar and was already being applied to the analysis of overpopulation, Hardin’s primary concern. This paper will (...)
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  2.  1
    Confronting Hardin: Trends and Approaches to the Commons in Historiography.Giacomo Bonan - 2018 - Theoretical Inquiries in Law 19 (2):617-632.
    This Article analyses both the role of historiography in Hardin’s The Tragedy of the Commons and his paper’s impact on historiographical debates of the last five decades. Concerning the role of historiography in Hardin’s argument, the ‘tragedy of the commons’ itself derived from a pamphlet written by a nineteenth century supporter of English enclosures, who proposed a variant of Malthus’ theory. If Hardin inevitably dealt with previous historical interpretations of the commons, the reverberations aroused by his paper have strongly influenced (...)
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  3.  1
    Give Us Back Our Tragedy: Nonrivalry in Intellectual Property Law and Policy.Oren Bracha - 2018 - Theoretical Inquiries in Law 19 (2):633-670.
    Information goods form the most distinct category of nonrival resources in regard to which one person’s ability to use the resource is not lessened by another person’s use. Nonrival goods are not subject to the tragedy of the commons and as a result the most common modern justification for property rights is absent in regard to them. Therefore intellectual property rights, unlike many other property rights, may perform a beneficial function only with respect to the dynamic incentive to produce information (...)
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  4.  2
    Impeachment by Judicial Review: Israel’s Odd System of Checks and Balances.Yoav Dotan - 2018 - Theoretical Inquiries in Law 19 (2):705-744.
    This paper focuses on a doctrine that the Israeli Supreme Court has developed since the early 1990s under which the Court removes officeholders from their position by ordinary judicial review proceedings. Although this doctrine is not founded on any formal constitutional settings, nonetheless it has had a significant influence on the relationships between the judiciary and the political branches, as it was the basis for the removal of several major political figures — including ministers and top bureaucrats — from office. (...)
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  5.  1
    Cold-War Commons: Tragedy, Critique, and the Future of the Illiberal Problem Space.Monica Eppinger - 2018 - Theoretical Inquiries in Law 19 (2):457-488.
    Major twentieth-century social theories like socialism and liberalism depended on property as an explanatory principle, prefiguring a geopolitical rivalry grounded in differing property regimes. This article examines the Cold War as an under-analyzed context for the idea of “the tragedy of the commons.” In Soviet practice, collectivization was meant to provide the material basis for cultivating particular forms of sociability and an antidote to the ills of private property. Outsiders came to conceptualize it as tragic in both economic and political (...)
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  6.  4
    Commons and Environmental Regulation in History: The Water Commons Beyond Property and Sovereignty.Alice Ingold - 2018 - Theoretical Inquiries in Law 19 (2):425-456.
    Do commons outline a different way of considering historical forms of environmental regulation? Might they represent a sort of alternative, apart from the usual model of environmental law which rests on public authorities and forms of restrictions of private rights? In order to grasp the complex relationship between environmental law and history, it is essential to pay attention to the state’s radical transformation in the nineteenth century, especially the separation of administration and the judiciary. This article aims to historicize the (...)
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  7.  3
    Re-Romanticizing Commons and Community in Israeli Discourse: Social, Economic, and Political Motives.Amnon Lehavi - 2018 - Theoretical Inquiries in Law 19 (2):671-703.
    Public discourse in Israel is taking a somewhat surprising turn in its vacillation between individualism and collectivism. While mainstream public opinion in the 1980s and 1990s pointed to the failures of common- and public-property regimes, elected officials, entrepreneurs, and consumers are nowadays singing the praises of commons and communities. The re-romanticizing of commons and community is driven by a number of explicit and implicit motives, which also underscore, however, the limits of a full-fledged return to common-property regimes. This article highlights (...)
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  8.  5
    Historicizing Elinor Ostrom: Urban Politics, International Development and Expertise in the U.S. Context.Fabien Locher - 2018 - Theoretical Inquiries in Law 19 (2):533-558.
    The goal of this article is to write a social and political history of the now preeminent approach to the ‘commons’ institutions, by focusing on Elinor Ostrom’s contributions to its development. My methodology is that of Science and Technology Studies. I focus here on the materiality of E. Ostrom and her team’s research practices, on their intellectual and institutional strategies, their networking practices, how their research was funded, and their interactions with administrative and academic institutions and actors. I analyze the (...)
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  9.  1
    Israel’s “Constitutional Revolution”: A Thought From Political Liberalism.Frank I. Michelman - 2018 - Theoretical Inquiries in Law 19 (2):745-765.
    In his book The Purse and the Sword: The Trials of Israel’s Legal Revolution, Daniel Friedmann brings under critical inspection what he names as a legal revolution in Israel. Friedmann gives us, under that name, an account of a shift of certain major and sensitive state powers from elected leaders and legislators to politically insulated officials and judges. The Supreme Court’s construction of two Basic Law enactments of the twelfth Knesset into a justiciable, substantive “formal constitution” for Israel figures in (...)
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  10.  4
    Indigenous Peoples, Political Economists and the Tragedy of the Commons.Michel Morin - 2018 - Theoretical Inquiries in Law 19 (2):559-586.
    In “The Tragedy of the Commons,” Garrett Hardin implicitly moved from bounded commons — a pasture or a tribe’s territory — to the case of boundless commons — the ocean, the atmosphere and planet Earth. He insisted on the need for imposing limits on the use of these resources, blurring the difference between communal property and open access regimes. The success of his paper is due in great measure to his neglect of economic, scientific, legal and anthropological literature. His main (...)
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  11.  4
    Commons and Cognition.Carol M. Rose - 2018 - Theoretical Inquiries in Law 19 (2):587-616.
    Garrett Hardin’s Tragedy of the Commons primarily concerns actions rather than thoughts. But he did famously describe the cognitive state of a hypothetical herder on a grassy field. With respect to the field and its other users, Hardin’s herder is both ignorant and indifferent; he coolly calculates that his best option is to take the full benefit of grazing his stock while suffering only a fraction of the cost — an action that contributes to the decimation of a common resource. (...)
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  12.  3
    The “Commons” Discourse on Marine Fisheries Resources: Another Antecedent to Hardin’s “Tragedy”.Harry N. Scheiber - 2018 - Theoretical Inquiries in Law 19 (2):489-505.
    Throughout the fifty years since its publication, Hardin’s “The Tragedy of the Commons” has been regarded as a seminal paper in the environmental movement, although his emphasis on population control has been largely forgotten. Hardin argued that free access by a growing population to common resources would inevitably lead to the depletion of those resources, citing as one example how maritime nations’ belief in the freedom of the seas, combined with their belief in the inexhaustibility of marine resources, had brought (...)
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  13.  1
    Savagery, Civilization, and Property: Theories of Societal Evolution and Commons Theory.David B. Schorr - 2018 - Theoretical Inquiries in Law 19 (2):507-531.
    This article argues that modern commons theory has been substantially shaped by early modern ways of thinking about the evolution of civilizations. In particular, it has hewed closely to models that gelled in the Enlightenment-era works known as “stadial theory,” by authors such as Lord Kames and Adam Smith, and passed down to the twentieth century, to theorists including Garrett Hardin, Harold Demsetz, and Elinor Ostrom. It argues that stadial thinking reached modern commons theorists largely through the disciplines of anthropology (...)
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  14.  1
    Before the Tragedy of the Commons: Early Modern Economic Considerations of the Public Use of Natural Resources.Nathaniel Wolloch - 2018 - Theoretical Inquiries in Law 19 (2):409-424.
    This article distinguishes between the precise legal and economic approach to the commons used by Hardin and many other modern commentators, and the broader post-Hardinian concept utilized in environmentally-oriented discussions and aiming to limit the use of the commons for the sake of preservation. Particularly in the latter case, it is claimed, any notion of the tragedy of the commons is distinctly a modern twentieth-century one, and was foreign to the early modern and even nineteenth-century outlooks. This was true of (...)
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  15.  6
    The Regime Politics Origins of Class Action Regulation.Agustín Barroilhet - 2018 - Theoretical Inquiries in Law 19 (1):363-394.
    This Article highlights that when procedural rules are legislated and there is substantial coordination between the executive and legislative branches, procedures with potential structural impact are weighted against alternative means of policymaking and implementation. This makes many Continental law countries, parliamentary countries, and countries governed by solid national majorities with substantial control over elected branches, and in general places where power is less fragmented, less likely to encourage American-style class actions. This is manifested in legislative choices of a private enforcement (...)
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  16.  6
    Publicly Funded Objectors.Elizabeth Chamblee Burch - 2018 - Theoretical Inquiries in Law 19 (1):47-68.
    On paper, class actions run like clockwork. But practice suggests the need for tune-ups: sometimes judges still approve settlements rife with red flags, and professional objectors may be more concerned with shaking down class counsel than with improving class member’s outcomes. The lack of data on the number of opt-outs, objectors, and claims rates fuels debates on both sides, for little is known about how well or poorly class members actually fare. This reveals a ubiquitous problem — information barriers confront (...)
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  17.  7
    Towards Collaborative Governance of European Remedial and Procedural Law?Fabrizio Cafaggi - 2018 - Theoretical Inquiries in Law 19 (1):235-260.
    This Article examines consumer law enforcement in the EU. It shows how the effectiveness of collective and individual redress is intrinsically linked to the interplay between administrative and judicial enforcement and alternative dispute resolution. It addresses the trends and the contradictions of EU enforcement policies and their impact on national systems by looking at the role of general principles and fundamental rights, in particular Article 47 of the European Charter of Fundamental Rights. It concludes with policy recommendations concerning how the (...)
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  18.  4
    The Global Class Action and Its Alternatives.Zachary D. Clopton - 2018 - Theoretical Inquiries in Law 19 (1):125-150.
    The “American-style” class action, when combined with private rights, is an important tool of American regulatory policy. And just as American regulation has global reach, the global class action is not unfamiliar to U.S. courts. Yet, global U.S. class actions are facing ever-stronger headwinds. In addition to the recent retrenchment of class actions and international litigation generally, U.S. courts have raised additional barriers to global class actions in particular. This Article’s first goal, therefore, is to document these developments and their (...)
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  19.  6
    Can and Should the New Third-Party Litigation Financing Come to Class Actions?Brian T. Fitzpatrick - 2018 - Theoretical Inquiries in Law 19 (1):109-123.
    In the United States, there has been tremendous growth in a form of third-party litigation financing where investors buy pieces of lawsuits from plaintiffs. Many scholars believe that this new financing helps to balance the risk tolerance of plaintiffs and defendants and thereby facilitates the resolution of litigation in a way that more closely tracks the goals of the substantive law. In this Article, I ask whether these risk-balancing virtues of claim investing carry over into class action cases. This is (...)
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  20.  4
    Regulation Through Litigation — Collective Redress in Need of a New Balance Between Individual Rights and Regulatory Objectives in Europe.Brigitte Haar - 2018 - Theoretical Inquiries in Law 19 (1):203-233.
    The EU Collective Redress Recommendation has invited Member States to introduce collective redress mechanisms by July 26, 2015. The claim of the well-known reservations concerns the potentially abusive litigation and potential settlement of not well-founded claims resulting from controversial funding of cases by means of contingency fees and from “opt-out” class action procedures. The Article posits that apart from that claim, at bottom there may be some danger that the European Commission and private interest-groups may try to pursue the enforcement (...)
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  21.  12
    Rethinking the Relationship Between Public Regulation and Private Litigation: Evidence From Securities Class Action in China.Robin Hui Huang - 2018 - Theoretical Inquiries in Law 19 (1):333-361.
    China has a civil procedure for collective litigation, which is dubbed Chinese-style class action, as it differs from the U.S.-style class action in some important ways. Using securities class action as a case study, this Article empirically examines both the quantity and quality of reported cases in China. It shows that the number of cases is much lower than expected, but the percentage of recovery is significantly higher than that in the United States. Based on this, the Article casts doubt (...)
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  22.  13
    Class Actions in the United States and Israel: A Comparative Approach.Robert Klonoff & Alon Klement - 2018 - Theoretical Inquiries in Law 19 (1):151-202.
    Unlike most countries, the United States and Israel have employed the class action procedure for decades. This Article compares the two countries’ class action regimes and examines how the device has evolved in those countries. It examines the current procedures, as well as proposed reforms. It also compares class action statistics in the two countries relating to filings and outcomes. We demonstrate the many common features between the United States and Israeli class action procedures. As we illustrate, these common features (...)
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  23.  2
    Tiered Certification.Shay Lavie - 2018 - Theoretical Inquiries in Law 19 (1):69-107.
    This Article proposes a thought-experiment with regard to the administration of class actions. It is almost axiomatic that class actions are determined through a single “certification.” However, class actions can be certified through a tiered certification, e.g., a preliminary certification on a more lenient standard, followed by a full certification. Flattening the certification process allows a richer set of solutions to familiar dilemmas. Currently, a noncertified class does not bar subsequent certification attempts. Focusing on this problem, this Article demonstrates that (...)
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  24.  5
    The American Class Action: From Birth to Maturity.Arthur R. Miller - 2018 - Theoretical Inquiries in Law 19 (1):1-45.
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  25.  8
    When Pragmatism Leads to Unintended Consequences: A Critique of Australia’s Unique Closed Class Regime.Vince Morabito & Vicki Waye - 2018 - Theoretical Inquiries in Law 19 (1):303-332.
    In an effort to ensure access to justice, Australian courts have fashioned a unique hybrid opt in-opt out process known as “closed classes.” The rationale that underlies closed classes is to prevent free-riding that may undercut the position of funders and class action law firms reliant upon entering into agreements with a critical mass of class members. However, multiple closed classes also pose problems for respondents seeking the comfort of finality. To secure settlement and thus ultimately benefit participating class members, (...)
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  26.  3
    Class Action Value.Catherine Piché - 2018 - Theoretical Inquiries in Law 19 (1):261-302.
    This Article attempts to clarify a proposition of certain Canadian authors that while class actions represent a significant part of our court activities, they may not truly be compensating our citizens. I argue that leading up to the present study, we did not know for certain whether a class action was an effective mechanism to compensate class members. Through empirical data collected up by the Class Actions Lab from the past twelve years from cases filed in the province of Quebec, (...)
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