All of these I've downloaded just in the past couple of days. I hope to be able to read all of them before the end of business today. I'm particularly enamored of the Qiao paper, which raises some really interesting issues about the bottom-up (vs. top-down) creation of property rights. More than that, Qiao presents evidence for bottom-up creation of functional property rights even when the de jure legal systems prohibits it.
Shitong Qiao, "Small Property, Big Market: A Focal Point Explanation." Abstract: Based on one year of fieldwork, this article presents a real estate market without legal titles to challenge formal property rights as a precondition for markets. In Shenzhen, the iconic city of China’s market economy, more than half of the buildings are developed and transferred against the law. These illegal buildings are called small properties because their property rights are "smaller" (weaker) than legal properties. This article models the formation and operation of the small-property market as coordination games, and demonstrates that a focal point of rural land development and transfer coordinates players’ expectations to converge on the same equilibrium.
Hanoch Dagan & Tsilly Dagan, "Facilitating the Commons Inside Out." Abstract: Commons property is a true challenge to the law, especially in a legal context that respects individual mobility, which is key to freedom and autonomy. While a tragedy of the commons is not inevitable, the sustainability – let alone flourishing – of the commons is far from obvious either. But the rewards of the latter trajectory are critical: a successful commons property can generate significant economic benefits, due to its intrinsic advantages of economies of scale, risk-spreading, specialization, and synergy. These benefits multiply in the context of social commons property regimes that function as the loci and engines of meaningful interpersonal relationships; indeed, they at times even become constitutive elements of commoners’ identities. This Essay explores examples of governance mechanisms for the collective management of resources as well as tax tools for collective production that can support the success of these social commons property regimes. These legal devices, which set (respectively) the internal rules of the game and provide external incentives, both counter the potentially destructive dynamics of the commons property and help preserve the noncommodified aspects of its owners’ community.
[I confess I don't understand the title, but the discussion of how standard co-ownership institutions, as well as tax policy, might be used effectively to facilitate the success of larger common property regimes, without depriving co-owners of the important right of exit, is fascinating. I hope a longer and deeper analysis will be forthcoming (which is something I don't often say about law articles).]
Erol Akcay, Joan Roughgarden, James Fearon, John Ferejohn, Barry Weingast, el al. (sic?), Biological Institutions: The Political Science of Animal Cooperation. Abstract: Social evolution is one of the most rapidly developing areas in evolutionary biology. A main theme is the emergence of cooperation among organisms, including the factors that impede cooperation. Although animal societies seem to have no formal institutions, such as courts or legislatures, we argue that biology presents many examples where an interaction can properly be thought of as an informal institution, meaning there are evolved norms and structure to the interaction that enable parties to reach mutually beneficial outcomes. These informal institutions are embedded in the natural history of the interaction, in factors such as where and when parties interact, how long and how close they stay together, and so on. Institutional theory thus widens the scope of behavioral ecology by considering not only why animals evolve to choose the strategies they choose, but also asking both why it is that they find themselves in those particular interaction setups and how these particular interactions can be sustained. Institutions frequently enable interacting parties avoid inefficient outcomes and support efficient exchange among agents with conflicting interests.
The main thesis of this paper is that the organization of many biological interactions can properly be understood as institutions that enable mutually beneficial outcomes to be achieved relative to an unstructured interaction. To do this, institutions resolve or regulate the conflicts of interests among parties. The way conflicts of interests affect the outcome depends on the structure of the interaction, which can create problems of commitment, coordination and private information. Institutional theory focuses on how to address each of these issues, typically focusing on the development of social norms, rules, and other constraints on individual behaviors. We illustrate our thesis with examples from cooperative breed and genes as within-body-mechanism-design.
Wojciech Sadurski, "Defending Public Reason." Abstract: The ideal of public reason has been criticized on the basis that it is, under available interpretations of the ideal, either “too thin” or “too thick”, and also that it creates perverse incentives for insincerity in public life. In the first part of the paper I consider, and rebut, the core case against Public Reason, as advanced by Ronald Dworkin and Jeremy Waldron. Against the charge that it is a toothless ideal (that it is “too thin”) which would eliminate nearly nothing from public discourse, I argue that this objection is tenable only if we adopt an implausibly subjectivist conception of reasonableness used in tandem with the ideal of public reason. Against the charge that it would lead to a drastic erosion of public discourse (hence, that it is “too thick”), I argue that this disregards a distinction between generalized public discourse and advocacy of laws which are to actually become legislation, broadly speaking. I also argue that the stricture of public reason rests on the same type of restrictions on public arguments which we adopt as legitimate in many spheres of argument and justification anyway. In the second part of the paper I argue, against the argument that the ideal of public reason is detrimental to the principle of candour in public, that one should not confuse “strategic” choice of argument, triggered by the concern for efficiency of persuasion or by the principle of respect to the audience, with deception and insincerity.
Jeremy Waldron, "Isaiah Berlin's Neglect of Enlightenment Constitutionalism." Abstract: One of the most important achievements of the Enlightenment is what I shall call Enlightenment constitutionalism. It transformed our political thinking out of all recognition; it left, as its legacy, not just the repudiation of monarchy and nobility in France in the 1790s but the unprecedented achievement of the framing, ratification, and establishment of the Constitution of the United States. It comprised the work of Diderot, Kant, Locke, Madison, Montesquieu, Rousseau, Sieyes, and Voltaire. It established the idea of a constitution as an intricate mechanism designed to house the untidiness and pluralism of human politics.
Yet Isaiah Berlin, supposedly one of our greatest interpreters of the Enlightenment, said almost nothing about it. The paper develops this claim and it speculates as to why this might be so. Certainly one result of Berlin's sidelining of Enlightenment constitutionalism is to lend spurious credibility to his well-known claim that Enlightenment social design was perfectionist, monastic, and potentially totalitarian. By ignoring Enlightenment constitutionalism, Berlin implicitly directed us away from precisely the body of work that might have refuted this view of Enlightenment social design.
In addition to those new papers, Jonathan Israel's new tome, Revolutionary Ideas: An Intellectual History of the French Revolution from The Rights of Man to Robespierre (Princeton 2014) just showed up my doorstep this past Friday. Like his past books on the enlightenment, which focus on the role radical thinkers have played in the history of the modern era, the new book is massive at nearly 900 pages long. Nevertheless, I'm sure I'll enjoy and learn a lot from his historical analysis, as well as his penchant to pick interpretive fights with scholars inclined to give less credit to the more radical thinkers of the times.