Eminent domain is a dirty, dirty hack. "We can't figure out how to make property work, sod it, lets turn off property and just take it at gunpoint".
There is a much cleaner solution that works without breaking property: buying options. You want to build a road, but you don't want to he held hostage. So you play a game rather like connect-4 by buying (for trivial sums) contractual obligations to sell to you at a fixed price within some sensible time limit. Once you have any workable unbroken line of optioned land between A and B, you exercise the options and buy it. All a hold-out does is cut himself out of the deal, since you can route around him.
This sounds like a great idea for many cases, but don't you think that the transactions costs will sometimes be a barrier?
I assume that most of you are familiar with the concept of the Tragedy of the Commons. If you aren't, well, that was a Wikipedia link right there.
However, fewer are familiar with the Tragedy of the Anticommons, a term coined by Michael Heller. Where the Tragedy of the Commons is created by too little ownership, the Tragedy of the Anticommons is created by too much.
For instance, the classical solution to the TotC is to divide up the commons between the herders using it, giving each of them ownership for a particular part. This gives each owner an incentive to enforce its sustainability. But what would happen if the commons were divided up to thousands of miniature pieces, say one square inch each? In order to herd your cattle, you'd have to acquire permission from hundreds of different owners. Not only would this be a massive undertaking by itself, any one of them could say no, potentially ruining your entire attempt.
This isn't just a theoretical issue. In his book, Heller offers numerous examples, such as this one:
Patents aren't the only field affected by this tragedy. America's airports are unnecessarily congested because land owners block all attempts to build new airports. 90% of the US broadcast spectrum goes unused, because in order to build national coverage, you'd need to apply for permission in 734 separate areas. Re-releasing an important documentary required a 600 000 dollar donation and negotiations that stretched over 20 years, because there were so many different copyright owners for all the pictures and music used in the documentary.
So, what does all of this have to do with rationality, and why am I bringing it up here?
The interesting thing about the tragedy of the anticommons is that most people will be entirely blind to it. Patent owners block drug development, and the only people who'll know are the owners in question, as well as the people who tried to develop the drug. A documentary doesn't get re-released? A few people might wonder why the documentary they saw 20 years ago isn't available on DVD anywhere, but aside for that, nobody'll know. If you're not even aware that a problem exists, then you can't fix it.
In general, something not happening is much harder to spot than something happening. Heller remarks that even the term "underuse" hasn't existed for very long:
This gives an interesting case study for rationality. If 'underuse' didn't become a word until 1960, that implies that people have been blind to its damages until then. Heller speculates:
There are several lessons one could draw here.
One is that we're biased to be blind to underuse, whereas overuse is much easier to spot.
Another is the more general case: we should be careful to look for hidden effects in any policies we institute or actions we take. Even if there seems to be no damage, there may actually be. How can we detect such hidden effects? Cost-benefit calculations looking for the optimal level of use are one way, though that's time-consuming and will only help detect under/overuse.
Not to mention that it's hard, requiring us to set a value on lives and other moral questions. That brings us to the second lesson. Heller's analysis implies that for a long time, people were actually blind to the possibility of underuse because they were reluctant to really tackle the hard problems. Refuse to assign a value on life? Then you can't engage in cost-benefit analysis... and as a result, you'll stay blind to the whole concept of underuse. If you'd looked at things objectively, you'd have seen that we need to give lives a value in order to make decisions in society. By refusing to do so, you'll stay blind to a huge class of problems ever after, simply because you didn't want to objectively ponder hard questions.
That reinforces a message Eliezer's been talking about. I doubt anybody could have foreseen that by refusing to put a value on life, they'd fail to discover the concept of underuse, and thereby have difficulty noticing the risk of patents blocking the development of new drugs. If you let your beliefs get in the way of your rationality in even one thing, it may end up hurting you in entirely unexpected ways. Don't do it.
(There are also some other lessons, which I realized after typing out this post... can you come up with them yourself?)