Public Law & Legal Theory
If you were a superhero, what would be your superpower?1 Flying? Invisibility? Time travel? I would pass up these familiar options in favor of the profoundly important but woefully underrated power of configuration—the ability to divide things up that arrive in lumps and to put things together that arrive in pieces.2 These feats might sound simple, but they are extraordinarily valuable and often maddeningly elusive.
To see why, think of all the things that might do you more good if they were sliced up differently. Perhaps you would prefer a job that involves a third less work and a third less pay, or a home that is half its size except when you are entertaining, or a car that materializes only when needed and is priced accordingly, or a dog that provides half the affection and requires half the walking. Next, think of the many things that arrive in fragments but that gain much or all of their value only when put together. The pieces necessary to build a complete rather than partial bridge. Votes to create a political result. The increments of studying necessary to pass a high- stakes exam. Patent licenses to produce a particular product. Or the bits of extra space between parallel- parked cars that you wish you could aggregate together to create a space large enough for your car. Getting part of the way there doesn’t always get you a proportionate share of the total benefit (think of a partial bridge or a partial parking space).
Superpowers throw human limitations into plain view, and a central goal of this book is to explore why reconfiguration is both important and difficult. Once we look carefully, we see that difficulties in slicing and lumping shape much of the way we have organized our lives, and a great deal of law and policy as well. From hot button issues like eminent domain and habitat conservation to developments in the so-called sharing economy (better termed “the slicing economy,” I argue) to personal struggles over work, risk, money, time, diet, and exercise, how things are divided up or aggregated together matters tremendously. Understanding the nature of configuration problems enables us to deal more effectively with them. By exerting control over how things are divvied up or pieced together, individuals, firms, and governments can shape outcomes in every domain of life, law, and policy.
Configuration, in short, is power. It is a power that has become increasingly pressing to understand and harness. New technologies and growing urbanization have made it easier than ever to bring people together in both real and virtual space to share ideas, make new things, and join forces on projects of all kinds. At the same time, emerging forms of unbundling, from jobs to cars to homes to entertainment, have refined the slices in which we produce and consume. It is no exaggeration to say that the future of the city, the workplace, the marketplace, and the environment all turn on questions of configuration, as do the prospects for more effective legal doctrines, for better management of finances and health, and much more. Yet the art and science of configuration is not a recognized fi eld of inquiry. This book aims to make it one.
By the end of the book, I hope to have convinced you of the power of configuration, and to have illuminated how indivisibility and fragmentation generate—and sometimes help solve—a wide range of legal and social problems. My inquiry uncovers some unappreciated and often surprising ways that the increments into which choices or resources are divided or aggregated can influence human behavior. This book highlights how governmental actors, markets, and households slice and lump (often in unacknowledged ways) and how they might do these things better. I offer strategies for recognizing and harnessing the power of slicing and lumping in law, policy, and everyday life. I hope to make configuration entrepreneurship salient—both as a focus of private and public innovation and as a crucial form of life- hacking.
The evocative economic concept of “lumpy goods” offers a starting point for my analysis. In a classic paper, Michael Taylor and Hugh Ward observe that some goods, like bridges and rail lines, “cannot be usefully provided in any amounts but only in more or less massive ‘lumps.’”3 Lumpiness sometimes refers to a desired end state, like the complete bridge. In other cases lumpiness represents an impediment to reaching a preferred end state—one wants only part of a job, say, or a share of a car, but (for whatever reason) the good is produced or provided in an all- or- nothing fashion. The inability to divide things up also limits the ability to make things incrementally bigger. For example, production or computing capacity can often be added only in large chunks.
Some constraints are physical or technical in nature and may be surmounted, if at all, at great expense. For example, the Silver Spirit cruise ship, a 642-foot-long vessel in Silversea’s fleet, was recently cut in half to insert a new forty-nine-foot midsection that will add about 12 percent to its passenger capacity.4 This ship- splicing represents a rare engineering feat—one that will consume roughly 450,000 worker- hours—and its difficulty and cost attest to the inherent lumpiness involved.5 Evolving technology is making rapid inroads on other kinds of indivisibility, however, as we see with new platforms for dividing access to houses, cars, clothing, and more. Many other forms of lumpiness are intentionally constructed by government or private actors—minimum lot sizes or product bundles, for example—and thus represent potentially malleable features of social, legal, and transactional settings.
Despite the evident centrality of lumpiness and divisibility to law and policy, these concepts have received only scattered attention from legal scholars. This might seem surprising, especially given the prominence that the economic analysis of law enjoys. But economics itself also tends to neglect these matters.6 This is partly for reasons of mathematical simplicity—models are more tractable if a linear relationship between inputs and outputs is assumed.7 And in the large- number settings that much economic analysis focuses on, indivisibility is not especially consequential: for a factory making hundreds of widgets per day, it hardly matters that producing each widget is an all- or- nothing proposition.8 Moreover, economists have long recognized that although individual decisions may be lumpy—a stable owner cannot reduce his team by a fraction of a horse when oat prices rise slightly— markets as a whole exhibit what Andreu Mas-Colell calls “the regularizing effects of aggregation.”9 At a large enough scale, lumps come out in the wash.
START><<<< Yet for individuals— workers, consumers, household members, risk bearers, taxpayers, and citizens— lumps matter profoundly. As Hagan Bob zin observes, making one more car “is of little signifi cance for an automobile company, whereas a household faces considerable consequences depending on whether it has got a car or not.”10 People cannot successfully navigate the interactions that are most important to their lives without at least an intuitive understanding of the signifi cance of slicing and lumping. For related reasons, law and policy cannot afford to ignore matters of confi guration. Not only is legal analysis frequently concerned with the structure of individual decisions, but social policy regularly addresses unique, indivisible goods and large- scale goals that are not amenable to the marketplace’s alchemy of averaging.
Take conservation, a context in which recognizing lumps of value can upend established ways of pursuing goals. Mary Ellen Hannibal recently observed: “For more than one hundred years, conservation has functioned by drawing a boundary around a special area and limiting human impacts there . . . . But science today tells us this approach is failing. Nature doesn’t work without connection.”11 In other words, the world is lumpy, and some of the most signifi cant lumps of value may not correspond to the ways in which resources like land have traditionally been sliced up. This reality is now being recognized through efforts to create migratory pathways and wildlife corridors. Here, as in other contexts, it is impossible to devise meaningful solutions without appreciating the lumpiness lurking in natural and social phenomena.
Lumpiness can also produce or explain behavior that seems to defy basic economic principles. For example, the law of diminishing marginal returns suggests that the next unit of a good will add less value than the previous unit. Lumpiness inverts that relationship: at times, one needs more of something to get any return at all. The lumpy or fragmented features of a given situation may also elicit behavior that is mistakenly attributed to behavioral biases. For instance, a person who plays the lottery or elects a lump sum over a larger payment stream may not be irrational or myopic, but rather simply expressing a strong preference for a lumpy consumption experience that is diffi cult or impossible to attain in any other way. Paying attention to confi guration forces us to rethink our assumptions.
This is an especially exciting and crucial time to be studying questions of slicing and lumping. As increasing urbanization and environmental threats raise the stakes for land confi guration choices, a technology- fueled entrepreneurial explosion is underway that is dividing goods, services, and jobs in novel ways, from Airbnb to Zipcar. This book highlights the connections between these and other social and economic developments, and examines the opportunities and concerns they present. It also sheds new light on chronic intrapersonal struggles, from overeating to the management of time and money, as well as persistent legal and policy puzzles, from the best way to deliver benefi ts to the best way to address risky behavior.
A few words about the book’s methods and goals will help to frame what follows. My approach here is primarily analytic. I seek to understand and explain confi guration problems, to get inside them and see how they work, rather than advocate for particular solutions to them. Yet in so doing, I mean to shed light on the ways that confi guration matters to human well- being, and on the potential for better confi gurations to improve our lives. This book emphasizes the signifi cance of the lumps and slices we encounter, and the need for our analyses and habits of thought to account for them. But this does not mean we must accept confi gurations as we fi nd them. Even when indivisibilities arise from ecological or other natural phenomena, human reactions to them are malleable, making confi guration an active enterprise, not a static fact. The words in my title are verbs as well as nouns.
For concreteness, my exposition is intensely example driven. There are large and deep literatures attached to many of the specifi c contexts I touch upon, which I cannot do justice to here. My aim is not to offer a comprehensive analysis of each of these situated examples, but rather to highlight the common structure they share— a forest that has been largely ignored in favor of individual trees. The book thus engages in a type of metalumping by highlighting connections and commonalities among diverse confi guration challenges that have previously been treated in isolation. At the same time, this book distinguishes problems involving lumpy or indivisible goals or goods from the other types of collective action problems that tend to dominate the popular and academic imagination— a form of meta- slicing.
The fi rst four chapters of the book lay the conceptual groundwork, starting with an overview in chapter 1 of the types of indivisibilities that appear in markets, communities, personal life, and law. Chapter 2 shows how lumpiness arises in high- profi le contexts like eminent domain, which involves the forcible assembly of land, as well as in settings where resources that are currently co- owned must be split up among claimants. I show that these two types of problems— assembly and division— are not distinct, as is usually assumed, nor is one inherently harder to solve than the other. Instead, they share a common structure: each type of reconfi guration requires both assembly (of consent by the affected stakeholders, or an overriding of their lack of consent) and division (of the surplus that is thereby created). In both cases, what is really being pieced together— whether voluntarily or through coercion— is cooperation in pursuit of a lumpy goal, the resource’s reconfi guration.
Chapter 3 extends this theme of assembling cooperation to collective action problems more broadly, whether saving a fi shery from collapse or collecting funds to cure a disease. I show how lumpy social goals— ones that are all- or- nothing— present different, and generally more favorable, prospects for success than the standard tragedy- of- the- commons scenario. Also signifi cant are the ways in which the resources to be harvested or the tasks to be contributed are divided up. Chapter 4 then considers how choice menus— whether sizes of sodas or technologies for fi ghting pollution— affect behavior by defi ning the increments in which people can take actions. When alternatives are chunky rather than continuous, people often must produce or consume either less or more than they would prefer— with overlooked and sometimes surprisingly positive implications for behaviors that have spillovers on others.
Chapter 5 turns to the ways in which aggregation and division impact intrapersonal dilemmas. Many of the same considerations that we observe in collective action problems among different people also apply when the players are different versions of oneself. Likewise, the chunkiness of the choices one encounters can edge decisions closer to one’s overall long- term interests or push them further away. Finding ways to strategically engineer and personalize choice menus offers new avenues for addressing selfcontrol problems. Chapter 6 extends these ideas into the realms of personal fi nancial management and public fi nance. Recognizing the signifi - cance of aggregation and division in saving and spending can improve how households manage their budgets and how governments formulate taxes, incentives, and benefi ts.
The next four chapters show how aggregation and division crop up in several important domains: the workplace, the marketplace, the home, and the city. Transformations are underway in all of these settings. Chapter 7 explores how new business models that slice time, effort, attention, and risk in unprecedented ways are changing how people work and play. The gig economy represents one manifestation of this shift, and the ambivalence surrounding it can be understood in terms of lumpiness: delumping the working experience has also meant decoupling work from many of its standard accompaniments, including health insurance. Chapter 8 examines the developing slicing economy in the marketplace for products and services. Here I explore the prospects and limits of swapping full- strength ownership for on- demand access. I also show how indivisibilities crop up in product bundling, sizing, pricing, and standardization, with implications for consumer choice.
Chapter 9 turns to housing, where innovative new forms of slicing abound, from platforms like Airbnb to social housing designs that deliver partial homes. At the same time, legal and policy choices often contribute to a discontinuous, chunky menu of housing alternatives that omits or limits options that people might prefer— such as very small units suitable for one- person households. Analyzing this constructed form of lumpiness in housing raises questions about the scope of the home, ones that require examining complementarities between individual dwellings and the surrounding community. Chapter 10 widens the viewfi nder to take in the city, where the questions of land assembly that appear early in the book are reconsidered in connection with agglomeration benefi ts (urban vitality) and costs (congestion). Perhaps the most pressing economic question of our day is how to make the most of our cities, which are themselves a paradigmatic instance of the power— and challenges— of aggregation.
The fi nal pair of chapters extends the analysis of aggregation and lumpiness into legal decisions and doctrines. Chapter 11 begins with the observation that law often constructs cliffs or generates all- or- nothing outcomes. For example, judicial decisions are very often binary in nature (one party wins entirely and the other loses entirely). Messy facts drawn from a continuum of possibilities are rendered into all- or- nothing outcomes. Much turns, then, on the “thresholding” processes that the law uses to generate these on- off results. Questions of aggregation play a decisive role: a momentary lapse of judgment, for example, might fall on one side of a legal line if viewed in isolation and on the other if considered as part of a larger pattern of careful or careless behavior. Chapter 12 shows that many legal and policy debates boil down to disagreements about bundling— whether of precautions, property interests, behavior, regulations, or legislation. Because the power to bundle or unbundle can dramatically change results, battles over bundles are some of the most interesting and consequential disputes in law and policy.
The book concludes with takeaways for policy makers, lawyers, academics, and anyone else who is interested in understanding and leveraging the lessons of lumpiness. Issues of lumpiness and divisibility touch nearly every corner of human experience, and they offer countless opportunities for innovation and entrepreneurship. Although the contexts I cover are necessarily illustrative rather than exhaustive, I hope that this book will spur others to identify additional arenas where the ideas explored here can be applied and extended. There are, of course, many other ways that the terrain I cover could have been broken up and heaped together. But I hope that the current configuration will let through enough light to intrigue you, and to inspire your own efforts at lump building.
Lee Anne Fennell, "Slices and Lumps: Division and Aggregation in Law and Life (Intro + Ch 1)", Public Law and Legal Theory Working Paper Series, No. 727 (2019).