nessee Press, 1990). See also _The_New_America_That's_Coming_ (1956) (special report by
editors of _Automotive_Industries_) (describing effect of "superhighways program on indus-
try, commerce and vehicle design").

To the extent transportation has been privately owned, the dominant regulatory rule
has been common carriage. Railroads, for example, were privately owned; but they were
also subject to common carrier obligations. The effect of these common carrier regula-
tions was to render the common carrier a commons as well. See, e.g., Andrew A. Nimel-
man, "Of Common Carriage and Cable Access: Deregulation of Cable Television by
the Supreme Court," _Federal_Communications_Law_Journal_ 34 (1982): 167, 173; Robert
Means and Deborah Cohn, "Common Carriage of Natural Gas," _Tulane_Law_Review_ 59
(1985): 529. As Yochai Benkler writes, however, "after the internal combustion engine
was invented, it was not a better system for awarding railroad franchises that was needed,
but a well-regulated commons like our national highway system." Yochai Benkler, "The
Commons as a Neglected Factor of Information Policy" (paper presented at Tele-
communications Policy Research Center conference, October 3-5, 1998), 68. And in-
deed, the revenue from rail transportation was $28,348,895,000 in 1992, compared
with $135,437,000,000 for local and long-haul trucking services. See section 21,
"Transportation-Land," of 1997 U.S. Economic Census conducted by U.S. Census Bu-
reau, available at http://www.census.gov/prod/2/gen/96statab/transind.pdf.

[6-5] Rose, "The Comedy of the Commons," 759, citing _President_of_Cincinnati_ v. _Lessee_
_of_White,_ 31 U.S. (6 Pet.) 429 (1832) (recognizing an implied dedication of a square for
traditional public use). See also Hanoch Dagan and Michael A. Heller, "The Liberal
Commons," _Yale_Law_Journal_ 110 (2001): 549; Michael A. Heller, "The Tragedy of the
Anticommons: Property in the Transition from Marx to Markets," _Harvard_Law_Review_
111 (1998): 621, 622-626; Alison Rieser, "Prescriptions for the Commons: Environmen-
tal Scholarship and the Fishing Quotas Debate," _Harvard_Environmental_Law_Review_ 23
(1999): 393; Elinor Ostrom, _Governing_the_Commons:_The_Evolution_of_Institutions_for_
_Collective_Action_ (Cambridge, England, and New York: Cambridge University Press,
1990), 2-23.

Henry Smith has identified a similar strategic cost in semicommons contexts. See
Henry E. Smith, "Semicommon Property Rights and Scattering in the Open Fields,"
_Journal_of_Legal_Studies_ 29 (2000): 131, 161-162.

[6-6] Rose, "The Comedy of the Commons," 769.

[6-7] Robert Merges offers a complementing argument, focusing on interoperability and
the value brought by individuals' investment in, for example, learning the commands in
a program. Robert Merges, "Who Owns the Charles River Bridge? Intellectual Property
and Competition in the Software Industry" (working paper, 1999).

[6-8] The classic text supporting a broad range of open or free resources, building on the
work of Joseph Schumpeter, is Richard R. Nelson and Sidney G. Winter, _An_Evolution-_
_ary_Theory_of_Economic_Change_ (Cambridge, Mass.: Belknap Press of Harvard University
Press, 1982). As they write: "[I]nnovation in the economic system -- and indeed the cre-
ation of any sort of novelty in art, science, or practical life -- consists to a substantial extent
of a recombination of conceptual and physical materials that were previously in exis-
tence. The vast momentum of scientific, technological, and economic progress in the
modern world derives largely from the fact that each new achievement is not merely the
answer to a particular problem, but also a new item in the vast storehouse of components
that are available for use, in 'new combinations,' in the solution of other problems in the
future." Ibid., 130. For a recent work advancing an analytic framework for evaluating "in-

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