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POLITICS AND PROPERTY IN NATURAL RESOURCES

Published online by Cambridge University Press:  24 June 2009

Andrew P. Morriss
Andrew P. Morriss
Affiliation:
Law, University of Illinois
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Abstract

Modern discussions of natural resources focus on increasing public control over extractive industries proposing measures that range from increasing the public's share of the gain via royalties and taxes to regulating extractive activities to prevent environmental problems to outright expropriation of private investments. This article argues that such efforts are counterproductive because the fundamental economic problem of natural resources is producing the knowledge necessary to locate and extract resource deposits. The public benefit comes from enabling the use of the resources and the increased economic activity their discovery produces rather than from royalties or expropriation. The key question in designing natural resource laws is thus their effects on the incentive to discover and manage resources. Private property rights in natural resources are the best way to provide such incentives. Fortunately, the combination of property rights and tort law principles (trespass and nuisance) enables property rights to solve environmental problems related to natural resource extraction as well.

Type
Research Article
Information
Social Philosophy and Policy , Volume 26 , Issue 2 , July 2009 , pp. 53 - 94
Copyright
Copyright © Social Philosophy and Policy Foundation 2009

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References

1 See Collier, Paul and Hoeffler, Anke, Greed and Grievance in Civil War (Washington, DC: World Bank, 2000)Google Scholar.

2 Ghazvinian, John, Untapped: The Scramble for Africa's Oil (New York: Harcourt, 2007), 14Google Scholar.

3 Ibid., 80.

4 See Collier, Paul, The Bottom Billion (New York: Oxford University Press, 2007), 38–52Google Scholar (summarizing the resource curse literature).

5 See Epstein, Richard A., Takings: Private Property and the Power of Eminent Domain (Cambridge: Harvard University Press, 1985), 219–23Google Scholar; and Epstein, Richard A., “The Modern Uses of Ancient Law,” South Carolina Law Review 48 (1997): 243, 250–56Google Scholar.

6 See, e.g., Shaxson, Nicholas, Poisoned Wells: The Dirty Politics of African Oil (New York: Palgrave MacMillan, 2007), 152Google Scholar (noting that it was “clear to those in the know that deepwater drilling technology was advancing so fast” that deposits off São Tomé and Principe “would soon be within reach,” thus making them valuable).

7 On the tar sands generally, see Koerner, Brendan I., “The Trillion-Barrel Tar Pit,” Wired 12, no. 7 (July 2004), http://www.wired.com/wired/archive/12.07/oil.html?pg=1&topic=oil&topic_set=Google Scholar.

8 Speight, James G., The Chemistry and Technology of Petroleum, 3d ed. (New York: CRC, 1999), 567CrossRefGoogle Scholar. Along the same lines, a 1941 review of the refining industry concluded that “[t]he constant practical application of chemical and engineering research to refining operations has resulted not only in improvement of products to meet changing conditions and requirements but in the reduction of waste in processing and in the manufacture of an almost infinite variety of products.” Miller, H. C. and Shea, G. B., “Gains in Oil and Gas Production Refining and Utilization Technology,” Technical Paper No. 3 (Washington, DC: National Resources Planning Board, 1941), 36Google Scholar.

9 U.S. Environmental Protection Agency, Office of Compliance, Profile of the Petroleum Refining Industry (EPA 310-R-95-013) (September 1995), 11 (noting that the cost of upgrading to meet 1990 Clean Air Act amendments also made it more economical “in some cases” to close refineries rather than upgrade them to meet the new standards); “Crude Benchmark Analysis,” Platt's.com, http://www.platts.com/Oil/Resources/News%20Features/crudeanalysis/index.xml (discussing shift of crude supplies to sour crudes); Bacon, Robert and Tordo, Silvana, “Crude Oil Prices: Predicting Price Differentials Based on Quality,” World Bank Public Policy Journal, Note 275 (October 2004), http://rru.worldbank.org/documents/publicpolicyjournal/275-bacon-tordo.pdfGoogle Scholar (discussing price differentials today).

10 Salsich, Peter, “A Short Course on Land Transactions: Protecting Title to Land, Brown v. Lober,” in Korngold, Gerald and Morriss, Andrew P., eds., Property Stories (New York: Foundation Press, 2004), 210–11Google Scholar.

11 Hayek, Friedrich A., “The Use of Knowledge in Society,” American Economic Review 35, no. 4 (1945): 519Google Scholar.

12 Ibid., 526.

13 Whaples, Robert, “California Gold Rush,” EH.net, http://eh.net/encyclopedia/article/whaples.goldrushGoogle Scholar.

14 Government Accountability Office, Crude Oil: Uncertainty Over Future Oil Supply Makes It Important to Develop a Strategy for Addressing a Peak and Decline in Oil Production (Washington, DC: GAO, February 2007), GAO-07-283, p. 7, http://www.gao.gov/new.items/d07283.pdfGoogle Scholar.

15 On environmental federalism, see Adler, Jonathan H., “Jurisdictional Mismatch in Environmental Federalism,” N.Y.U. Environmental Law Journal 14 (2005): 130Google Scholar; Adler, Jonathan H., “The Ducks Stop Here? The Environmental Challenge to Federalism,” Supreme Court Economic Review 9 (2001): 205CrossRefGoogle Scholar. On the role of the common law, see Yandle, Bruce, “Common Law and the Conceit of Modern Environmental Policy,” George Mason Law Review 7 (1999): 923Google Scholar. On free market environmentalism generally, see Anderson, Terry L. and Leal, Don, Free Market Environmentalism, rev. ed. (New York: MacMillan, 2001)CrossRefGoogle Scholar.

16 The Shirley Letters from the California Mines, 1851–52, ed. Wheat, Carl I. (New York: Knopf, 1970), 130Google Scholar.

17 Forty-niner Granville Stuart later reported in his memoir that many of the miners he met in California believed gold came from volcanic activity and that even a rumor of a crater lake “covered with gold so plentiful that there was little sand or gravel” prompted hundreds of men to abandon rich claims in their haste to search for it. Stuart, Granville, Forty Years on the Frontier (1925), vol. 1, ed. Phillips, Paul C. (Lincoln, NE: Bison Books, 2004), 61–62Google Scholar.

18 See Energy Information Administration, “Petroleum and Other Liquid Fuels,” in International Energy Outlook 2007, http://www.eia.doe.gov/oiaf/ieo/oil.htmlGoogle Scholar.

19 Yergin, Daniel, “It's Not the End of the Oil Age,” Washington Post (July 31, 2005): B07, http://www.washingtonpost.com/wp-dyn/content/article/2005/07/29/AR2005072901672.htmlGoogle Scholar.

20 National Research Council, Hardrock Mining on Federal Lands (Washington, DC: National Research Council, 1999), 23Google Scholar.

21 Ibid., 24.

22 See Nard, Craig Allen and Morriss, Andrew P., “Constitutionalizing Patents: From Venice to Philadelphia,” Review of Law and Economics 2, no. 2 (2006)CrossRefGoogle Scholar (discussing patent incentives).

23 See, e.g., Sobel, Dava, Longitude (New York: Walker and Co., 1996)Google Scholar (recounting the use of prize money to motivate solution to the problem of finding longitude); and X Prize Foundation, “What Is an X Prize?”http://www.xprize.org/x-prizesGoogle Scholar (explaining system of prizes to solve various technological problems).

24 We discuss this issue in detail in Morriss, Andrew P., Meiners, Roger E., and Dorchak, Andrew, “Homesteading Rock: A Defense of Free Access under the General Mining Law of 1872,” Environmental Law 34 (2004): 745Google Scholar.

25 Epstein, “Modern Uses,” 250–56.

26 See Libecap, Gary, “Unitization,” New Palgrave Dictionary of Economics and the Law (New York: Palgrave MacMillan, 2004)Google Scholar.

27 Coal-bed methane is methane found in coal seams; it is used for energy (as natural gas). Approximately 7 percent of total natural gas production in the United States is from coal-bed methane. Large coal-bed methane deposits are now capable of commercial exploitation in Montana and Wyoming through new techniques, such as pumping out groundwater in the coal seam to reduce the pressure on the gas, enabling it to be recovered. This has proven controversial in the western United States because of concerns over the impact on the availability of water resources once water has been pumped out of the coal beds and the impact of the pumped water discharges on surface water resources. See Montana State University, Department of Land Resources and Environmental Sciences, “Frequently Asked Questions—Coal Bed Methane,”http://waterquality.montana.edu/docs/methane/cbmfaq.shtml#whatiscoalbedmethaneGoogle Scholar.

28 See, e.g., Forbis, Robert E. Jr., “Why Split-Estate Energy Development Should Concern Utah's Policymakers,” CPPA Policy Perspectives 2, no. 8 (August 30, 2006), http://www.imakenews.com/cppa/e_article000638684.cfm?x=b11,0,wGoogle Scholar.

29 See, e.g., Michael F. Geiger, LLC v. United States, 456 F. Supp. 2d 885 (W.D. Ky. 2006) (claim of owner of “coal and coal resources” mineral rights rejected in favor of owner of surface estate and all other mineral rights).

30 Evolutionary and Revolutionary Technologies for Mining (Washington, DC: National Academy Press, 2002), 53Google Scholar (citation omitted).

31 Ibid.

32 Lacy, John C., “Going with the Current: The Genesis of the Mineral Laws of the United States,” Mineral Law Institute 41 (1996): 10-1Google Scholar.

33 Figures from Energy Information Administration, Costs of Crude Oil and Natural Gas Wells Drilled, Table 4.8, http://www.eia.doe.gov/emeu/aer/resource.htmlGoogle Scholar.

34 See, e.g., Myerson, Allen R., “A Wildcatter on the Tame Side, Replacing Roughnecks with Computers,” New York Times (March 20, 1998)Google Scholar (discussing industry trend toward data analysis).

35 Shaxson, Poisoned Wells, 189–208 (describing situation in Nigerian Delta).

36 Rinke, Nicole, “The Crown Jewel Mining Decision: Recognizing the Mining Law's Inherent Limits,” Ecology Law Quarterly 27 (2000): 819, 825Google Scholar.

37 Mining Industry of the Future, Mineral Processing Technology Roadmap (2000), 16, http://www1.eere.energy.gov/industry/mining/pdfs/mptroadmap.pdfGoogle Scholar.

38 “The most effective way to increase conversion efficiency is through the reduction or elimination of processing steps. Finding safe and effective ways to eliminate physical removal of the ore from the site is one obvious goal, and beneficiating it as much as possible at the mine face can dramatically reduce material transfer costs.” Ibid., 12.

39 See Joskow, Paul, “Contract Duration and Relationship-Specific Investments: Empirical Evidence from Coal Markets,” American Economic Review 77, no. 1 (1987): 168Google Scholar; Smith, Bruce W., “Analysis of the Location of Coal-Fired Power Plants in the Eastern United States,” Economic Geography 49, no. 3 (1973): 243CrossRefGoogle Scholar.

40 National Research Council, Hardrock Mining on Federal Lands, 33.

41 World Diamond Council, Alluvial Diamond Mining Fact Sheet,http://www.diamondfacts.org/pdfs/media/media_resources/fact_sheets/Alluvial_Mining_Background.pdfGoogle Scholar.

42 Shaxson, Poisoned Wells, 21.

43 See generally Kolo, Abba and Walde, Thomas W., “Renegotiation and Contract Adaptation in International Investment Projects,” Journal of World Investment 1 (2000): 5CrossRefGoogle Scholar; Vagts, Detlev F., “Coercion and Foreign Investment Rearrangements,” American Journal of International Law 72 (1978): 17, 36CrossRefGoogle Scholar.

44 Otto, James and Cordes, John, The Regulation of Mineral Enterprises: A Global Perspective on Economics, Law, and Policy (Rocky Mountain Mineral Law Foundation, 2002): 1–48Google Scholar.

45 Kobrin, Stephen J., “Diffusion as an Explanation of Oil Nationalization: Or the Domino Effect Rides Again,” The Journal of Conflict Resolution 29, no. 1 (1985): 3, 10–11CrossRefGoogle Scholar.

46 Ibid., 17.

47 As reported in “Oil Chronicles: News from the Caspian Sea” (editorial), Kazakhstan International Business Magazine (2007), http://www.investkz.com/en/projects/73.htmlGoogle Scholar.

48 Games, Diane, “Questions on the Zambian Copperbelt,” Resource Investor (January 21, 2008), http://www.resourceinvestor.com/pebble.asp?relid=39677Google Scholar.

49 “Venezuela Politics: Sabre-Rattling,” The Economist (February 13, 2008), reprinted in Petroleum World News (February 19, 2008), http://www.petroleumworld.com/Lag08021901.htmGoogle Scholar.

50 “Venezuela to Tax Oil Firms for Environmental Damage,”Reuters (March 11, 2008), http://uk.reuters.com/article/environmentNews/idUKN1161301720080311Google Scholar.

51 Rogozinski, Jan, A Brief History of the Caribbean (New York: Plume, 1999), 331Google Scholar.

52 Ibid.

53 Shaxson, Poisoned Wells, 36.

54 Ghazvinian, Untapped, 46.

55 Shaxson, Poisoned Wells, 14.

56 Sometimes natural resource rights holders can use their superior knowledge to avoid losses in renegotiations. For example, when São Tomé and Principe renegotiated its oil contracts with ExxonMobil, the company agreed to a substantial reduction in the rights it held. By the time of the renegotiation, however, “the company had enough geological information to know where the best [exploration] blocks were, so although ExxonMobil ceded a lot on paper, its concession was probably far less than it might seem.” Shaxson, Poisoned Wells, 159.

57 Ackerman, Bruce and Hassler, William T., Clean Coal/Dirty Air or How the Clean Air Act Became a Multibillion-Dollar Bail-Out for High-Sulfur Coal Producers (New Haven, CT: Yale University Press, 1981)Google Scholar.

58 This is discussed in Solomon, Brian, Burlington Northern Santa Fe Railway (Minneapolis, MN: MBI Publishing, 2005), 120–30Google Scholar.

59 Humphries, Marc and Vincent, Carol Hardy, Mining on Federal Lands (CRS Issue Brief 89130) (2001)Google Scholar.

60 See Energy Information Administration, Crude Oil Production,http://tonto.eia.doe.gov/dnav/pet/xls/pet_crd_crpdn_adc_mbbl_m.xls#'Data1'!A1Google Scholar; and State Offshore Production, http://tonto.eia.doe.gov/dnav/pet/xls/pet_crd_crpdn_adc_mbbl_m.xls#'Data2'!A1Google Scholar. Percentages calculated using October 2007 figures.

61 See Morriss, Andrew P., Meiners, Roger E., and Dorchak, Andrew, “Between a Hard Rock and a Hard Place: Politics, Midnight Regulations, and Mining,” Administrative Law Review 55 (2003): 551, 567–68Google Scholar (describing how Westerners have used the Senate to protect the mining industry against “Eastern” interests.). Redistributive efforts to amend the General Mining Law have focused on changing the “free” grant of mineral rights to include royalties to the federal treasury, auctions of rights, and other measures designed to produce revenue in which the states without mineral resources could then gain a share. The regional nature of the conflict goes back to the first major federal mining law in 1866, with Easterners seeking federal revenue from the new mineral deposits and Westerners seeking free access to promote their states' economies. See Mayer, Carl J. and Riley, George A., Public Domain, Private Dominion (San Francisco: Sierra Club Books, 1985), 48–53Google Scholar (recounting the debate). As a regional, capital-intensive industry, mining has few employees to use as a basis for political support. For example, hard rock mining, which excludes coal mining and nonmetal mining such as gravel and clay, had its largest employment numbers in 1916, when it employed just under one-half of one percent of the labor force. Even if we add in the coal mining industry, which employed just over four times the number of men as the hard rock mines, the mining workforce at that time employed no more than 5 percent of the labor force. Historical Statistics of the United States: Colonial Times to 1970, Part 1 (1975), 608. Today, hard rock mining employs only 31,000 people, just one-quarter of one one-thousandth of a percent of the total labor force. Table B-12. Employees on Nonfarm Payrolls by Detailed Industry. Establishment Data, Employment, Department of Labor. See ftp://ftp.bls.gov/pub/suppl/empsit.ceseeb12.txt.

62 Bank, World, Economic Growth in the 1990s: Learning from a Decade of Reform (Washington, DC: World Bank, 2005), 310, http://www1.worldbank.org/prem/lessons1990s/chaps/ctrynote7_AreNaturalResources.pdfCrossRefGoogle Scholar.

63 Ghazvinian, Untapped, 243.

64 On environmentalism as a religion, see generally Andrew P. Morriss and Benjamin Cramer, “Disestablishing the Environment,” University of Illinois Law and Economics Working Paper LE-07-041; Nelson, Robert, How Much Is God Worth? (Washington, DC: Competitive Enterprise Institute, 1996)Google Scholar; and Crichton, Michael, “Remarks to the Commonwealth Club, San Francisco, September 15, 2003,” http://www.whitehouse.gov/OMB/inforeg/2003iq/122.pdfGoogle Scholar.

65 Nelson, How Much Is God Worth? 11.

66 This can be seen as well in some of the popular commentary on ANWR. See, e.g., Hogan, Tim, “Time to Protect the Arctic Refuge for Good,” Boulder (Colorado) Daily Camera (April 15, 2007): “[T]he Arctic National Wildlife Refuge has become a symbol of and a testimony to the restraint the American people have exercised on behalf of wild nature.”Google Scholar

67 Berry, Thomas, The Dream of the Earth (San Francisco: Sierra Club Books, 1990), 41–42Google Scholar. Another dramatic example is the following principle put forward by the “First National People of Color Environmental Leadership Summit” in October 1991: “Environmental justice requires that we, as individuals, make personal and consumer choices to consume as little of Mother Earth's resources and to produce as little waste as possible; and make the conscious decision to challenge and reprioritize our lifestyles to insure the health of the natural world for present and future generations.” First National People of Color Environmental Leadership Summit, Principles of Environmental Justice (1991), http://gladstone.uoregon.edu/~caer/17principles.htmlGoogle Scholar. In “Disestablishing the Environment,” Morriss and Cramer describe multiple additional examples of such thinking among environmental pressure groups.

68 As Hayek says at the outset of his essay, his claim is about what the economic problem of society is: “The economic problem of society is thus not merely a problem of how to allocate ‘given’ resources—if ‘given’ is taken to mean given to a single mind which deliberately solves the problem set by these ‘data.’ It is rather a problem of how to secure the best use of resources known to any of the members of society, for ends whose relative importance only these individuals know. Or, to put it briefly, it is a problem of the utilization of knowledge not given to anyone in its totality.” Hayek, “The Use of Knowledge in Society,” 519–20. It must be acknowledged that Hayek waffled somewhat on the issue of whether markets could provide sufficient environmental protection in volume 3 of Law, Legislation, and Liberty. Hayek, Friedrich A., Law, Legislation, and Liberty: The Political Order of a Free People (Chicago: University of Chicago Press, 1979), 43CrossRefGoogle Scholar.

69 Morriss, Meiners, and Dorchak, “Homesteading Rock.”

70 One solution to the incentive problem that has been proposed is to require those engaged in risky resource extraction to post bonds or buy insurance to cover the cost of any damage that might result in the future from their activities. Since a safer operation reduces the cost of the bond or insurance policy, this helps align the current site owner's incentive with the long-term interest of its neighbors.

71 Shaxson, Poisoned Wells, 39.

72 See Morriss, Meiners, and Dorchak, “Homesteading Rock.”

73 See Rasband, James S., “The Rise of Urban Archipelagos in the American West: A New Preservation Policy?” Environmental Law 31 (2001): 1, 70Google Scholar (former secretary of the interior Bruce Babbitt's agenda at Interior included assuring “a fair return to the government for the minerals in the public lands by charging a royalty and other fees”); and Leshy, John D., The Mining Law: A Study in Perpetual Motion (Washington, DC: Resources for the Future, 1987), 327–46Google Scholar.

74 Lacy, “Going with the Current,” 10-3–10-9.

75 Ibid., 10-3.

76 Ibid., 10-7.

77 Ibid., 10-9.

78 Ibid., 10-11.

79 The Case of Mines, 75 Eng.Rep. 472, 477 (Ex. 1567). A later case allowed a royal prerogative in mines of newly valuable substances (saltpetre in this case), holding that “although the invention of gunpowder was devised within time of memory … yet inasmuch as this concerns the necessary defence of the realm, [the King] shall not be driven to buy [saltpetre] in foreign parts; and foreign princes may restrain it at their pleasure, in their own dominions: and so the realm shall not have sufficient [saltpetre] for the defence of it, to the peril and hazard of it: and therefore insomuch as saltpetre is within the realm, the King may take it … for the necessary defence of the kingdom.” The Case of the King's Prerogative in Saltpetre, 77 Eng.Rep. 1294, 1295 (K.B.1606).

80 See, e.g., Act of May 20, 1785, an ordinance for disposing of lands in western territories, reserving to the United States “one third part of all gold, silver, lead and copper mines.”

81 Virtue, G. O., “Public Ownership of Mineral Lands in the United States,” Journal of Political Economy 3, no. 2 (1895): 185CrossRefGoogle Scholar.

82 Nesbitt, Robert C., Wisconsin: A History, 2d ed. (Madison: University of Wisconsin Press, 1989), 107Google Scholar.

83 Sax, Joseph L., “The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention,” Michigan Law Review 68 (1970): 471, 484–85CrossRefGoogle Scholar.

84 Quoted in Shaxson, Poisoned Wells, 11.

85 See Morriss, Meiners, and Dorchak, “Between a Hard Rock and a Hard Place”; and Morriss, Andrew P., Meiners, Roger E., and Dorchak, Andrew, “Hard Rock Homesteads: Free Access and the General Mining Law of 1872,” Journal of Energy and Natural Resources Law 24 (2006): 255CrossRefGoogle Scholar.

86 In this, I am following Richard Epstein's takings analysis, which would define such regulations as takings before proceeding to more difficult questions about whether or not the takings were implicitly compensated for by the benefits of the regulatory measures. See Epstein, Richard A., Takings: Private Property and the Power of Eminent Domain (Cambridge, MA: Harvard University Press, 1985)Google Scholar.

87 See Morriss, Meiners, and Dorchak, “Midnight Regulations.”

88 Ibid. There is a significant problem with oil storage tanks on residential properties, however, that is conceptually similar to the abandoned mine problem.

89 Ibid.

90 Lacy, “Going with the Current,” 10-6–10-9.

91 This bundle approximates the American version of the fee simple absolute from the mid-nineteenth century to the advent of modern public authority land-use regulation (e.g., zoning). The maximum bundle of surface rights has declined since then. See Morriss, Andrew P. and Meiners, Roger E., “The New Feudalism in Property Law: The Destructive Role of Land Use Planning,” Tulane Environmental Law Journal 14 (2000): 95Google Scholar. Some of the earlier bundles of rights labeled “fee simple absolute” in the United States, and all such bundles in Britain, would have allocated at least some of the mineral rights to the sovereign, as discussed earlier.

92 The conflicts may also exist between resource rights owners, as one person may own the “coal” rights and another person may own the other mineral rights. There is nothing to distinguish this conflict from the conflict between the surface owner and the resource owner, however.

93 See, e.g., Alspach, Christopher M., “Surface Use by the Mineral Owner: How Much Accommodation Is Required Under Current Oil and Gas Law?” Oklahoma Law Review 55 (2002): 89Google Scholar.

94 Snyder, Pamela S. and Shaw, Jane S., “PC Oil Drilling in a Wildlife Refuge,” Wall Street Journal (September 7, 1995)Google Scholar.

95 In the case of a corporate entity, of course, the shareholders have an incentive to adopt a corporate form that addresses any internal principal-agent problems. This incentive is lacking in the case of a public body.

96 Lacy, “Going with the Current,” 10-6–10-7 (quoting Boeckh, “A Dissertation on the Silver Mines of Laurion in Attica,” in The Public Economy of Athens, trans. George Cornewall Lewis, 2d ed. [1842], 645, and Rossiter W. Raymond, Mineral Resources of the States and Territories, H.R. Ex. Doc. No. 54, 40th Cong., 3d Sess. [1869], 189).

97 Shaxson, Poisoned Wells, 121 (quoting a vice president of Marathon's Equatorial Guinea subsidiary who stated that “What production profile a government wants … is determined by the security of the government. An insecure government will want the oil reserves exhausted as quickly as possible”).

98 Ghazvinian, Untapped, 103–5.

99 Collier, The Bottom Billion, 42.

100 Ghazvinian, Untapped, 66.

101 See Barzel, Yorum, Economic Analysis of Property Rights (Cambridge: Cambridge University Press, 1997)CrossRefGoogle Scholar.

102 It is worth noting, however, that many countries are advancing state-owned companies as the appropriate means to exploit oil and gas resources in particular; thus, future research may need to consider them.

103 See Morriss, Meiners, and Dorchak, “Homesteading Rock,” 24.

104 Morriss, Andrew P., “Miners, Vigilantes, and Cattlemen: Overcoming Free Rider Problems in the Private Provision of Law,” Land and Water Law Review 33 (1998): 581Google Scholar.

105 A Dutch auction is one in which the auctioneer starts at a high price and progressively lowers the price until someone accepts the auctioneer's offered price.

106 Leslie, Winsome J., Zaire: Continuity and Political Change in an Oppressive State (Boulder, CO: Westview Press, 1993), 36Google Scholar.

107 Meredith, Martin, The Fate of Africa: From the Hopes of Freedom to the Heart of Despair (New York: Public Affairs, 2005), 301Google Scholar.

108 Smith, Hampton, Merrill, Tim, and Meditz, Sandra W., “The Economy,” in Zaire: A Country Study, ed. Meditz, Sandra W. and Merrill, Tim (Baton Rouge, LA: Claitor's Law Books and Publishing, 1993), 137, 151–52Google Scholar.

109 Meredith, The Fate of Africa, 526.

110 Ayittey, George B. N., Africa in Chaos (New York: Palgrave Macmillan, 1998), 35Google Scholar.

111 Meredith, The Fate of Africa, 220.

112 Ibid., 284.

113 See Thaler, Richard H., The Winner's Curse: Paradoxes and Anomalies of Economic Life (New York: Free Press, 1991)Google Scholar.

114 Kramer, Andrew, “BP Faces Environment Inquiry in Russia,” New York Times, March 22, 2008Google Scholar; and Olive, David, “Oil Firms Caught in a Squeeze Play,” thestar.com, March 31, 2008, http://www.thestar.com/comment/columnists/article/407511Google Scholar (describing BP's experience as expropriation by degrees).

115 See Epstein, Richard A., Simple Rules for a Complex World (Cambridge, MA: Harvard University Press, 1995)Google Scholar.