Over the course of fifteen years, James Acheson compiled a wealth of information on the lobstering communities dotting the central Maine coast from Bailey Island to Brooksville. In The Lobster Gangs of Maine, Acheson detailed the workings and traditions of these communities, paying particular attention to the “thick and complex web of social relationships” undergirding them and to their methods of allocating access to the lobster fishery through informal exclusion mechanisms. Since its publication in 1988, Acheson’s study has been hailed as documenting “a noteworthy example of long-lasting, informal property rights in action.” The study has assumed a place within the body of legal scholarship arguing that de facto property regimes can develop organically outside of the state’s formal legal apparatus, and has been understood to support Robert Ellickson’s hypothesis that “informal social networks are capable of creating rules that establish property rights.” Within a “close-knit group,” informal property rules, such as Acheson catalogs among Maine’s lobstermen, are believed to constrain private behavior to the same extent as formal laws and serve to “maximize the aggregate welfare that members obtain in their workaday affairs with one another.” These informal rules have been credited with helping such groups to avoid what Garrett Hardin termed “the tragedy of the commons” by creating locally-appropriate norms that are treated as binding by members of the group. A number of legal scholars have offered laudatory analyses of such informal property systems. Jonathan Macey, for instance, has written that, where operable, “private ordering generates substantive legal principles that are superior to those that the state produces.” And, on the basis of an indigenous Cree subsistence fishery, Fikret Berkes has concluded that “[the] ‘tragedy of the commons’ model, with its negative prognosis, has been replaced by theories based on the idea that resource users are capable of selforganization and self-regulation.” To this point, excludability has been regarded as the central weakness of such informal systems. That is, the threat has been characterized as external: outsiders who fail to understand or abide by the common rules must be kept out, or the system must be incorporated within a formal legal framework. However, recent developments within Maine’s lobster fishery suggest an equally serious weakness based on an internal threat: under unusual financial stress, members of even a closeknit group may cease to honor informal property rules, necessitating the intervention of state enforcement mechanisms. This finding challenges and contributes to the evolution of commons theory, suggesting that exceptions to Hardin’s model may function only under positive economic conditions. My goal in this brief Comment is modest. I seek only to offer some limited evidence to complicate the conventional understanding of informal property regimes. I accomplish this by discussing the Maine lobster fishery, as described by James Acheson, and showing how that case study has reacted to economic stresses in ways largely unanticipated by Acheson. A radical transformation is taking place in how Maine lobstermen protect their property rights, indicating that informal property regimes are more fragile than previously realized. Of course, a single stone does not a castle break, and I recognize that the record remains too thin to signal a general breakdown in informal property regimes. Nevertheless, Acheson’s work is representative of the post-Hardinian genre, and—as described below—both anecdotal and documentary evidence show that his thesis is misconceived.
Rethinking The Adequacy Of Informal Property Rules: Some Evidence From Maine's Lobster Fishery,
Ocean & Coastal L.J.
Available at: https://digitalcommons.mainelaw.maine.edu/oclj/vol15/iss1/18