Institutions and Land-Use Conflicts: Harm, Dispute Processing, and Transactions

摘要

The intent of this paper has been to start a new dialogue about land-use conflict resolution by reframing conflicts using their essential elements rather than their type of resolution process. A greater appreciation of institutions produces a model of dispute processing, which has greater clarity and coherence. Starting from the familiar notion of the land-use externality, a refinement of the definition of harm in a regime of presumptive rights is offered. This perspective on harm is extended to include appellate-rights regimes, although it stops short of addressing the harm one finds in a regime of formal rights. Society has evolved five main types of processes to resolve these harms: markets, quasi-markets, legislatures, quasi-judicial bodies, and judicial bodies. All of these processes engender incentives that affect disputant behavior and the social success of the outcome. Using insights from institutional economics, the key to the reframing method is to envision the conflicts as a series of land-use transactions. The economic transaction provides a standardized perspective by casting disputants as buyers and sellers, prices as resoilution costs, and resolution processes as the units of analysis. A possible complication associated with the unbounded channeling of conflicts is minimized by the path-dependent nature of most classifications of land-use conflicts.