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The Second Commons: Rethinking Fisheries Reform for the Political Market
Many of the failures of U.S. fisheries management are ascribed to the problem of imperfect representation, occasionally referred to as ‘regulatory capture.’ Described in terms of the outsized influence the fishing industry has over regulators, this framing of the problem has wide appeal and some empirical support. Adding credence to the diagnoses is the undeniable dominance of fishing industry representatives on the regional fishery management councils, the primary decision making organs within the U.S. fisheries management system. Despite its widespread acceptance, this essay draws on a pair of linked phenomena rooted in common pool resource theory and political economy to demonstrate why the notion of imperfect representation has serious limitations as an organizing principle for fishery reform efforts. The first phenomenon is the “Tragedy of the Commons” (TOC), a perverse set of economic incentives that trap individuals into patterns of unsustainable resource exploitation. Less well known, but equally important, is the phenomenon referred to here as “the second commons”, a term that describes the ability of interest groups to obtain unique political treatment through a series of market-like transactions with elected and appointed officials. Using the historical analogue of public lands ranching, this essay argues that the TOC incentive structure will drive fishing groups into the second commons in search of the policy treatment needed to continue overfishing regardless of the composition of the councils, and that these groups will very often be successful. While the second commons cannot be controlled by a single group, this essay argues that it is possible to reform fisheries such that the economic pathologies associated with the TOC and the associated need for industry groups to secure unsustainable policy treatment are reduced. This approach, I contend, will lead to more successful and durable outcomes than attempts to build more “representative” councils.
© 2012 The Stanford Journal of Law, Science, and Policy