The Law as a Social Commons.

In order to determine how well the distributional institutions of the law are performing their role in society, it is helpful to understand what the law is and how its institutions are designed. This paper will test the idea that law can best be classified as a common pool good. There are two primary reasons why it matters to say that the law is a common pool good. First, economic theory states that common pool resources tend to be underprovided and overused. Significant portions of the population may be left without adequate access to the law, resulting in a depletion of the legitimacy from which courts receive their power. The role of collective action is to provide the institutional framework for preventing this depletion. This paper will argue that the primary component of such a framework is a strongly regulated legal profession operating within a common law system. Second, legal recognition of certain types of property rights activates a number of Constitutional protections. While the U.S. has recognized the right of criminal defendants to have access to an attorney, that right is based on a threat to their liberty, not property. Because the United States operates under a negative conception of liberty, the liberty argument does not apply to civil cases where freedom is not at issue. This paper therefore will argue that individuals have a property interest in the law itself, the denial of which violates the due process clause. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]