Robert Ellickson - Academia.edu (original) (raw)

Papers by Robert Ellickson

UCLA Journal of Environmental Law and Policy

SSRN Electronic Journal, 2020

Since the 1970s, covenants running with the land have tethered a large majority of the new housin... more Since the 1970s, covenants running with the land have tethered a large majority of the new housing units produced in the United States. These private restraints usually continue for generations, until a majority or super-majority of covenant beneficiaries affirmatively vote to amend or terminate them. Covenants interact with public land use controls, particularly zoning ordinances. Zoning politics tends to freeze land uses in urban America, particularly in existing neighborhoods of single-family homes. This article investigates to what extent covenants exacerbate the zoning freeze. It provides a history of the use of private covenants, and suggests how drafters, judges, and legislators might address the risk that covenants will become obsolete.

The Journal of Law, Economics, and Organization, 1989

Law & Social Inquiry, 2016

Frederick Schauer's The Force of Law (2015) and Richard McAdams's The Expressive Powers of Law (2... more Frederick Schauer's The Force of Law (2015) and Richard McAdams's The Expressive Powers of Law (2015) are noteworthy contributions. However, both authors exaggerate the importance of law, as opposed to other means of social control. Schauer largely omits the role that self-help measures, ranging from negative gossip to violent self-defense, play in deterring misconduct. Contrary to Max Weber, the state in practice cannot monopolize the legitimate use of physical force. McAdams valuably analyzes law's potentially expressive effects. He might have devoted more attention, however, to identifying the contexts in which state speech tends to be more salient than private speech, such as a statement by the pope or another esteemed private pundit.

People congregate in cities to improve their prospects for social and economic interactions. As J... more People congregate in cities to improve their prospects for social and economic interactions. As Jane Jacobs recognized, the layout ofstreets in a city's central business district can significantly affect individuals' ability to obtain the agglomeration benefits that they seek. The costs and benefits of alternative street designs are capitalized into the value of abutting lots. A planner of a street layout, as a rule of thumb, should seek to maximize the market value of the private lots within the layout. By this criterion, the street grid characteristic of the downtowns of most U.S. cities is largely successful. Although a grid layout has aesthetic shortcomings, it helps those who frequent a downtown to orient themselves and move about. A grid also is conducive to the creation of rectangular lots, which are ideal for siting structures and minimizing disputes between abutting landowners. Major changes in street layouts, such as those accomplished by Baron Haussmann in Paris and Robert Moses in New York City, are unusual and typically occur in bursts. Surprisingly, the aftermath of a disaster that has destroyed much of a city is not a propitious occasion for the revamping of street locations.

REVIEWED BY ROBERT C. ELLICKSONt 4. In the summer of 1970, some 15 Nader recruits in Washington, ... more REVIEWED BY ROBERT C. ELLICKSONt 4. In the summer of 1970, some 15 Nader recruits in Washington, D.C. protested against Nader's remoteness and the coldness of his organizational structure. C. McCARRY, CrIEN NADr 216 (1972) [hereinafter cited as McCARRY]. Morale sagged badly on the Congress project, note 5 infra, in the summer of 1972: The Nader white knight image was shattered for most of us early in the summer, and that disillusionment weighed heavily on the project. An even more serious repercussion is that I personally do not know a single profile writer who would work for Nader again.

Texas Law Review, Apr 1, 2012

Austin is the Mecca of women's roller derby.1 In 2001, Austin skaters transformed this moribu... more Austin is the Mecca of women's roller derby.1 In 2001, Austin skaters transformed this moribund sport into a hipper form of entertainment, leading to its renaissance.2 The Texas Rollergirls and the TXRD Lonestar Rollergirls, both based in Austin, are among the best known of the 147 women's roller-derby leagues worldwide.3 It thus is fitting that the Texas Law Review is publishing David Fagundes's sparkling account of how the derby skaters themselves came to create and honor a Master Roster that curbs infringement of skating pseudonyms.4 Especially since the early 1990s, legal scholars have produced dozens of thick descriptions of the social norms that govern particular social spheres.5 Fagundes's contribution to this genre is exemplary in many respects. In this Response, I highlight his major accomplishments, but also suggest how his account might have been deeper. In the latter sections, I discuss several critical issues that he has flagged. The skaters' Master Roster is not a document that can be altered bottom-up by any random participant, but instead a document controlled top-down by self-appointed leaders whom the other skaters have come to regard as their authorized agents.6 These features invite discussion of the role of norm entrepreneurs and nongovernmental organizations in the overall system of social control. I. Praise Fagundes deserves kudos for choosing to study the nonlegal protection of roller derby names. By accessing internet chat rooms and then following up with e-mail messages and interviews, he was able to burrow deep into the social world of the derby skaters. Because the skaters' pseudonyms largely protect their privacy interests, he felt uncommonly free to pepper his article with references to specific participants, thereby bringing this social milieu to life. The descriptive portions of his article are page-turners, on account not only of the playfulness of the monikers that the skaters have chosen, but also Fagundes's superior writing skills. Fagundes also has an eye for issues of theoretical importance. He recognizes that the renaissance of roller derby presents an opportunity to test the Demsetzian proposition that new forms of property rights emerge when cost-benefit conditions change.7 He convincingly argues that his findings add to the mountain of evidence that refutes the legal-centralist conception that individuals look only to the legal system to find the rules that govern their conduct.8 As all legal scholars who study norms agree, social order arises from not only state dictates and enforcement, but also from the decentralized social controls administered by individuals, households, and private associations.9 And Fagundes demolishes the view that norms only fill "negative spaces" that the law hasn't already occupied. In fact, when Hydra, the key norm entrepreneur in his tale, established the institutions that led to the Master Roster, she saw no reason to make a thorough investigation of the rules of trademark law that in fact provided an alternative source of name protection.10 Members of a closely-knit group typically sense that using the formal rules of private law is an inherently expensive process, and also anticipate that they themselves would outperform lawmakers in the tasks of establishing rules and enforcement mechanisms. When individuals hold these beliefs, they don't waste time and money investigating the formal law that might apply, but instead reject it sight unseen. Derby skaters rightly consider their Master Roster system to be administratively cheaper than trademarking.11 And as long as they remain in control of the roster, they plausibly think that their Master Roster rules, substantive and procedural, will end up being sound.12 Fagundes also is alert to opportunities for fresh analytic contributions. He stresses that derby skaters regard their participation as "identity constitutive," an outlook that raises their estimation of the stakes involved when use of a skating name is infringed or diluted. …

In a given year, a resident of the United States is roughly twice more likely to move to a differ... more In a given year, a resident of the United States is roughly twice more likely to move to a different home than is a resident of France (or of western Europe as a whole). Cultural differences undoubtedly account for some of this gap. The central thesis of this Article, however, is that much of this disparity in residential mobility can be chalked up to differences between U.S. and French (and other European) legal policies-in particular, taxation statutes, land-use policies, landlord-tenant laws, and housing assistance programs. This Article also offers a normative framework for analyzing the desirability of household relocations. Legal policies that foster residential moves can enable individuals to better match themselves with a job, a dwelling, a set of housemates, a tenure arrangement, a neighborhood, and a municipality (à la Tiebout). A decision to move, however, may give rise to negative externalities, such as erosion of local social capital. In theory, although rarely in practice, people thus can move too often.

A half-century ago C.P. Snow located literary intellectuals and physical scientists at the opposi... more A half-century ago C.P. Snow located literary intellectuals and physical scientists at the opposite poles of the academy, separated by dismaying differences in method and perspective. 1 A similar gulf threatens to separate the legal scholars who are wedded to the humanities and those who are inspired by economics and the other harder social sciences. 2 Humanists exult in the variety and complexity of social life. Social scientists, by contrast, aspire to develop overarching theories of human behavior. Although a social scientific theory must simplify-that, after all, is the point of theory-it can nevertheless offer a humanist a possible framework for interpretation and a potential guide to fruitful inquiry. A rich humanistic narrative about the human condition is unlikely to leave a lasting impression if it lacks some underlying theoretical structure. A creative tension between the yin of social-scientific universalizers and the yang of humanistic particularizers thus promises to benefit all participants in the legal academy. Douglas Litowitz's lively essay, provoked by my book Order Without Law, regrettably does little to advance this conversation. 3 In essence it is a yawpn-a primal call to dismiss positivistic social-science across the board. I urge the readers of this journal to reject this entreaty. A tolerant and broadly engaged humanist,

The Yale Law Journal, 1977

1. Construction Quotas 2. Development Moratoria 3. Use Restrictions and Design Requirements 504 D... more 1. Construction Quotas 2. Development Moratoria 3. Use Restrictions and Design Requirements 504 D. The Precedents for Awarding Damages 507 XI. Summary 509 4. To simplify the scope of the discussion, it will be assumed that states have delegated to local governments plenary authority to control land use. The reach of local authority under enabling acts or home-rule provisions is, of course, often a central issue in land-use cases. 5. Moratoria have become remarkably popular recently. A 1973 survey found that approximately 20% of responding counties and cities had imposed some type of moratorium in the preceding two years.

University of Toronto Law Journal, 2013

As the famous fox case of Pierson v Post illustrates, rival hunters who have separately contribut... more As the famous fox case of Pierson v Post illustrates, rival hunters who have separately contributed to the capture of a wild animal may have different notions about which of them owns the prey. During the Stone Age, hunter-gatherers likely developed sophisticated norms to resolve these sorts of controversies. Each of the contributors to this symposium focuses on common law property rights in prey that North American judges articulated during the nineteenth century. Their articles analyse the rules of the game that applied in the Newfoundland sealery, North Pacific whaling grounds, and rural Long Island. In each setting, both hunters and judges tailored the applicable rules of capture to the characteristics of the hunted animal. When hunters’ customs were opaque, as they commonly were, judges sought to crystallize definitive legal rules. The articles in the symposium strikingly illustrate the gulf between ‘humanistic’ and ‘scientific’ styles of legal analysis.

The University of Chicago Law Review, 1973

for helpful comments on early drafts of this article.

The Journal of Legal Studies, 1998

The Journal of Legal Studies, 1987

How is it that people manage to live side by side without incessant "warre of every man against e... more How is it that people manage to live side by side without incessant "warre of every man against every man"?' Thomas Hobbes, who won fame for posing this question, concluded that the legal system-the rules and might of Leviathan-is the wellspring of social order. Most law professors implicitly propagate this Hobbesian view, perhaps because it lends significance to what they teach. Law-and-economics scholars have been particularly prone to assert the centrality of legal doctrine. There is an opposing intellectual tradition, however, that emphasizes that social order can emerge without law. Its core theorists have been empirical sociologists and anthropologists who study stateless societies. Within the legal academy the law professors associated with the law-and-society movement have been the prime skeptics of the importance of law. 2 A field study that I recently conducted in Shasta County, California, provides an empirical perspective on the sources of social order. The * Robert E.

Viewing property rights as a "bundle of sticks" can be descriptively clarifying because... more Viewing property rights as a "bundle of sticks" can be descriptively clarifying because the law commonly entitles an owner of a particular resource to split up entitlements in it. Nonetheless, Thomas Merrill and Henry Smith, the most prominent critics of the metaphor, assert that this conception both ignores the existence of various legal constraints on the decomposition of property rights, and also encourages lawmakers to support the excessive splintering of entitlements. These concerns are well-grounded. More controversial are Merrill and Smith's inclinations to equate private property with property generally, to deny that human capital can be characterized as property, and to assert that affirmative duties never attach to property ownership.

Duke Law Journal, 1998

Residential Community Associations are now the norm in new suburban developments, and in this Art... more Residential Community Associations are now the norm in new suburban developments, and in this Article, Professor Robert Ellickson suggests that existing neighborhoods, in inner cities and elsewhere, would benefit from similar institutions. Specifically, he proposes the creation of Block Improvement Districts. These Districts would typically be formed by supermajorities of property owners, who would need to have the power to override objectors to avoid the free rider problem inherent in many kinds of group action. Once formed, these Districts would collect fees from member property owners and, in return, would provide block-level public goods. After exploring both the theoretical and practical aspects of Block Improvement Districts, Professor Ellickson concludes by advocating experimentation with these institutions as a way of more conclusively determining their value.

American Journal of Sociology, 1992

... Library of Congress Cataloging-in-Publication data Ellickson, Robert C. Order without law: ho... more ... Library of Congress Cataloging-in-Publication data Ellickson, Robert C. Order without law: how neighbors settle disputes / Robert C. Ellickson ... the Harvard University Press, I thank Elizabeth Gretz for her meticulous and sensible changes in the manuscript, and Mike Aronson, my ...