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LEGS, or "Law-Engaged Graduate Students," meets during the academic year to discuss a work in progress by one of our Graduate Associates. Academic papers, dissertation proposals, and dissertation chapters have been presented at these meetings, to an audience of fellow graduate students.
From Haris: "Skeptics of Garrett Hardin's "tragedy of the commons" have shown how scarcity is often a socially-constructed epistemological category or technologically-made material artifact. In these accounts, the central problem is not scarcity but distribution. The solution to scarcity, then, is often a legal prescription: Rewrite property rights regimes in order to redistribute the uneven arrangement of a commons. Paradoxically, this standard rebuttal tacitly agrees with Hardin’s fundamental contention that problems of scarcity require legal and political, not technical, solutions. This prioritization of legal solutions elides the material conditions that bar access to resources in the first place. Legal scholars have dedicated less attention to legal solutions that govern not only a resource or its users, but the means of access to the resource. In other words, in the classic example of the English pasture, what about the hedges or fences that surround or enclose a commons, not as epistemological markers of property rights or sovereignty—infringement of which a legal system purports to deter, punish, or remedy—but rather as technologically constructed or naturally occurring material conditions that limit access? I argue that legal solutions to commons problems must more directly treat access as a resource, and thus as a material object that can be made scarce. This approach focuses legal solutions on the material conditions of access and the associated “socio-technical systems,” including legal systems themselves, that modulate access. Such a move requires the synthesis of legal and technical expertise, rather than Hardin’s disavowal of the latter for the former. Indeed, it is high time that legal academics partner with experts in technical fields in order to articulate a “techno-legal” theory that “governs the hedges.” This manifesto makes a foray in that direction by developing the concept of “access scarcity.”
Haris A. Durrani is a second-year PhD candidate in the History Department, at the Program in History of Science. He is also a JD candidate (on leave) at Columbia Law School. He studies the intersections between history of science and legal history in the 20th century to present. His work focuses on property (including raw materials and IP), administrative law, and constitutional law in the context of extraterritoriality, international law, and US extractive empire in Latin America and the Caribbean.