Property, Information And Institutional Design

Abstract

First Nations' emerging choices over their property institutions, however, are considerably more complex than perennial debates about private-individual versus communal rights would tend to suggest. [...]the information-based perspective suggests: (i) that First Nations should prioritize simple, bright line property rules that eschew the uncertainties of community-based interpretation and context; and (ii) that First Nations should work to harmonize their local property systems with a uniform set of norms familiar to Anglo-Canadian common law.2 My purpose in this Essay is to question these two basic prescriptions and offer some alternative ways of thinking about property, information, and institutional design. In Part II, I describe a second implication of the information-based approach - namely, the idea that communities should seek to reduce local variation in their property regimes. Because local divergence from widely used common law property norms is thought raise the costs of transactions across community boundaries, recent research suggests that there may be substantial incentives for communities to move toward harmonization or convergence, at least over the long run. For several reasons, investors will demand secure property - i.e., well defined and broadly agree upon norms with predictable and enforceable consequences.4 Using uncertain legal standards to delineate property rights appears to cut against this accepted logic by undermining real and perceived security and discouraging economic investment. [...]because uncer - tainty around property can effectively delegate important legal and political decisions to nonmajoritarian institutions and third-party decisionmakers from outside local communities, it seems that this strategy might also be unattractive from the perspective of strong, autonomous First Nations governance.