An Economic Theory of Infrastructure and Commons Management

In this article, Professor Frischmann combines a number of current debates across many disciplinary lines, all of which examine from different perspectives whether certain resources should be managed through a regime of private property or through a regime of open access. Frischmann develops and applies a theory that demonstrates there are strong economic arguments for managing and sustaining openly accessible infrastructure. The approach he takes differs from conventional analyses in that he focuses extensively on demand-side considerations and fully explores how infrastructure resources generate value for consumers and society. As a result, the theory brings into focus the social value of common infrastructure, and strongly suggests that the benefits of open access (costs of restricted access) are significantly greater than reflected in current debates. Frischmann's infrastructure theory ultimately ties together different strands of legal and economic thought pertaining to natural resources such as lakes, traditional infrastructure such as road systems, what antitrust theorists describe as essential facilities, basic scientific research, and the Internet. His theory has significant potential to reframe a number of important debates within intellectual property, cyberlaw, telecommunications, and many other areas. Note: Professor Lawrence Lessig will publish a Reply titled Re-Marking the Progress in Frischmann in the same edition of the Minnesota Law Review.