Assailed: The Paradoxical State of the Commons in the United States

The commons occupies a peculiar place in the United States, foundational to its very political existence but rarely invoked as a basis for legal claims, ubiquitous in the framing of the contemporary socio-legal order but absent from the law, invisible but hiding in plain sight. On one hand, the idea of the commons has played a foundational role. Its centrality in early modern European political thought has shaped the US from its origins through a present in which ordered liberty is still pursued as an intentional common project. The idea of the commons also plays an indispensable but destructive role in the history of a US settler-colonialism in which the myth of a great, empty North American “wilderness” has been key to sidestepping ethical crises and obviating legal questions arising from violently expropriating land from indigenous populations. The history of addressing the wilderness in law, policy, and practice shapes the here-and-now, with a legacy of doctrines that condition approaches to smaller-scale commons and that have left the US government as the US's largest landowner. On the other hand, although in the US myriad property forms could be analyzed, spatially or institutionally, as a commons, it is important to note that in the US the commons exists as an analytic category but not as a juridical category. There is no standard legal definition of a commons and categorizing something as a commons has no conventional legal effect. For those using a space or resource as a commons and wishing to defend that use, the most promising course of action under US law would be (1) to use the law of organizations to form a group with legal capacity, such as a non-profit organization, or to use deed language to signify an in-group co-ownership arrangement, such as tenancy-in-common or joint tenancy; and (2) to establish a claim based in private property doctrines (such as acquisition by purchase or adverse possession, or servitudes). The commons figures in US academic debate, one line of scholarship treating it as the site of “collective action problems” and another, as the situs of “public trust,” a doctrine to be expansively employed in the public interest.