Carol M Rose

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• Rose, C. M. (2011). Ostrom and the lawyers: The impact of Governing the Commons on the American legal academy. International Journal of the Commons, 5(1), 28-49.
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  Abstract: American legal academics began to cite Elinor Ostrom's Governing the Commons (GC) shortly after its 1990 publication, with citations peaking in the mid-2000s and with signs of a new peak in 2010 in the wake of Ostrom's Nobel Prize in Economics. The legal scholars most interested in GC have worked in three areas: general property theory, environmental and natural resource law, and since the mid-1990s, intellectual property. In all those areas legal scholars have found GC and its many examples a strong source of support for the proposition that people can cooperate to overcome common pool resource issues, managing resources through informal norms rather than either individual property or coercive government. Legal academics have also been at least mildly critical of GC, however. A number have tried to balance the attractive features of GC's governance model - stability and sustainability - with more standard legal models favoring toward open markets, fluid change and egalitarianism. Copyright: content is licensed under a Creative Commons Attribution 3.0 License.
• Rose, C. M. (2011). Servitudes. Research Handbook on the Economics of Property Law, 296-325.
• Rose, C. M. (2009). Liberty, property, environmentalism. Social Philosophy and Policy, 26(2), 1-25.
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  Abstract: The environment has often been thought to consist of resources that are unowned, and hence subject to the well-known tragedy of the commons. But in recent years, property ideas have been increasingly recruited for environmental protection, in a manner that appears to vindicate the view that property rights evolve along with the needs for resource management. Nevertheless, property regimes have some pitfalls for environmental resources: the relevant parties may not be able to come to agreement; property regimes may be weak or ineffective; they may be aimed at purposes inconsistent with environmental protection; property rights definitions may not work well for environmental resources; modern property regimes may promote monoculture rather than diverse environments. This essay describes these problems and asks to what degree they apply to a new effort to use property rights approaches, namely cap-and-trade programs to control greenhouse gases. It concludes that property rights, while imperfect and something of a retreat from a regime of complete liberty, may offer gains for environmental protection. But success will depend on close attention to the accountability and effectiveness of the governmental institutions necessary to support environmental property regimes. © 2009 Social Philosophy and Policy Foundation.
• Rose, C. M. (2007). What federalism tells us about takings jurisprudence. UCLA Law Review, 54(6), 1681-1701.
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  Abstract: This Article discusses a niche within a niche: Federalism considerations in theories of governmental takings of property. Several property and land use theorists have argued that larger-scale and smaller-scale legislative bodies should be treated differently in takings jurisprudence, because these differently scaled legislatures are likely to behave differently in dealing with individuals' property and to respond differently to compensation requirements. I agree with this general proposition, but I sharply disagree with the centralist drift of most of this literature, which favors the national legislature while imposing strict takings requirements on local legislatures. I argue that these analyses overlook the existing constraints on smaller-scale governing bodies. Meanwhile, the courts have paid very little overt attention to federalism concerns of any kind in takings jurisprudence, string citing cases about local, state, and national governments without differentiating them, instead of responding to federalism (and other) takings theories, actual takings jurisprudence vacillates between leniency toward all legislatures and contempt for them. I argue, however, that federalism considerations might help courts to analyze the legislative process, and they might be incorporated into takings jurisprudence by a distinction between Fifth Amendment and Fourteenth Amendment takings.
• Rose, C. M. (1999). Expanding the choices for the global commons: Comparing newfangled tradable allowance schemes to old-fashioned common property regimes. Duke Environmental Law and Policy Forum, 10(1), 45-72.
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  Abstract: In the years since 1990, when the Clean Air Act Amendments instituted this highly acclaimed scheme of tradable emissions allowances, proponents of tradable environmental rights have spread the idea to other areas, including matters of global environmental concern. Tradable allowances have been widely discussed and partially implemented in ocean fisheries, where they appear as individual fishing quotas (IFQs) for some fish stocks. Similarly, tradable allowances are a key issue in the current worldwide debate over the reduction of greenhouse gases. Even the resistant industrialists of the United States seem to be more willing to go along with global greenhouse gas reduction schemes if these schemes permit emissions trading. This article focuses in part on these hybrid property schemes, or 'tradable environmental allowance' (TEA) systems, not only because they are currently a matter of considerable interest in global environmentalism, but also because they offer especially interesting contrasts and comparisons with CPRs. First, TEAs are like CPRs in that they depart from the Hardin/Ophuls dyadic commons solution. Instead of choosing between Leviathan and individual property, TEAs combine the two: Even though they allocate individual quotas of the resource in question, TEAs are created and policed by governments to a degree far surpassing conventional property rights. Second, and more interestingly, each TEA regime confronts exactly the same problem that a CPR does-the problem of managing a large renewable resource stock in a unitary fashion.
• Rose, C. M. (1998). Canons of Property Talk, or, Blackstone's Anxiety. Yale Law Journal, 108(3), 601-632.
• Rose, C. M. (1998). The several futures of property: Of cyberspace and folk tales, emission trades and ecosystems. Minnesota Law Review, 83(1), 129-182.
• Rose, C. M. (1997). The Shadow of the Cathedral. Yale Law Journal, 106(7), 2175-2200.
• Rose, C. M. (1996). Property as the keystone right?. Notre Dame Law Review, 71(3), 329-365.