Murray Rothbard’s discussion of the radio spectrum and waterways in Man, Economy, and State was an early and remarkably systematic attempt to drag two supposedly “exceptional” resources back into the ordinary law of property. In 1962, he argued that usable radio frequencies were scarce and therefore ownable, and that fishing areas in oceans could likewise be appropriated, bounded, and exchanged. He even said the relevant water areas could be marked off by latitude and longitude. Rothbard was not inventing these ideas out of thin air; in the footnotes of the text he cited Ronald Coase on spectrum and Jerome Milliman on water, showing that he knew he was entering a real but still small debate. What made Rothbard distinctive was not simply that he liked markets. It was that he insisted on asking the prior question: who has title?
That question mattered because the American legal regime for radio had been built to avoid answering it in property terms. The Radio Act of 1927 placed control over interstate and foreign radio transmission under federal authority, required applicants to waive claims of right against the United States, and declared that licenses created no right beyond their own limited terms. It also tied licensing to the vague standard of “public interest, convenience, or necessity.” The Communications Act of 1934 then created the Federal Communications Commission (FCC) and centralized that administrative framework rather than abandoning it. Rothbard’s proposal, in this context, was a rejection of the architecture of command-and-license broadcasting itself.
On spectrum, Rothbard’s claim was simple and radical: ordinary breathable air is too abundant to be property, but the electromagnetic spectrum used for broadcasting is scarce, so it should be appropriated by first users “just like” land or livestock. He wrote that the first user of a frequency would own it for his relevant wave area, and that a later broadcaster transmitting on that same wavelength would be guilty of invasion in the same way a trespasser invades land. In the same passage he cited Coase’s 1959 article arguing that federal ownership of the airwaves had been justified less by true “chaos” than by the suppression of emerging common-law claims. Rothbard’s great move was to turn what Coase framed largely as an allocation problem into a deeper problem of justice, title, and trespass.
That helps explain both Rothbard’s kinship with and distance from the early market critics of spectrum regulation. Leo Herzel proposed auctioning spectrum in 1951, and Thomas Hazlett’s later history identifies Herzel and Coase as the key early proponents of market allocation. Congress did not give the FCC authority to use competitive bidding until 1993, and the first FCC auctions began in 1994. Yet auctions, for Rothbard, were not the heart of the matter. As B.K. Marcus later stressed in one of the Mises Institute’s Essays in Political Economy, Rothbard’s question was not merely whether markets could price licenses more efficiently, but whether the state had any right to stand between homesteading users and full property title in the first place. That is a more radical question than modern spectrum policy usually permits itself to ask.
His treatment of waterways and fisheries was equally audacious. Rothbard allowed that the high seas, considered merely as shipping lanes, might be too abundant to be appropriated. But he insisted that fishing rights were different because fish are scarce relative to human wants. Hence, the relevant water areas, along with the fishery they contain, are appropriable. He said such areas could be privately owned by first users and marked out by latitude and longitude, and for flowing water, he explicitly favored the appropriation principle over riparianism, the doctrine under which rights to use flowing water are attached to ownership of adjoining land rather than created by first productive use. Here again he cited Milliman’s critiques of water law, signaling that he was pushing beyond conventional doctrine rather than merely ignoring it.
That was a sharp break from the dominant legal context. American water law was and remains regionally split: eastern states developed riparian doctrines tied to land adjoining water, while western states relied more heavily on prior appropriation, the “first in time, first in right” principle for beneficial use. At the same time, navigable waters were commonly placed under a public-trust logic, under which the state held such waters for public uses like navigation and fishing. Rothbard clearly preferred appropriation to riparianism and then went beyond even western prior-appropriation law, arguing that water and marine fisheries should be treated as ordinary alienable property rather than as semi-public resources managed by official discretion.
In retrospect, Rothbard also looks prescient on fisheries. H. Scott Gordon’s classic 1954 article analyzed overfishing as a consequence of the economic organization of a common-property fishery, and later rights-based systems spread internationally. FAO notes that individual transferable quotas emerged in Iceland and New Zealand in the 1960s and 1970s, while NOAA notes that several countries began developing catch-share systems in the 1970s. Rothbard anticipated the general direction of that shift: scarcity in marine resources calls for exclusionary rights rather than open access. But he was more uncompromising than most later reformers, who often settled for quotas, licenses, and hybrid governance rather than fully territorialized private ownership of fishing grounds.
Where later scholarship most clearly departs from Rothbard is not in denying scarcity but in complicating the institutional menu. Elinor Ostrom famously stressed that common property is not the same thing as open access, a distinction often blurred in policy debates. That insight matters. Not every resource dilemma must be solved by atomized, fee-simple ownership. Still, Rothbard’s achievement remains substantial. He forced attention back to boundaries, exclusion, transferability, and liability for interference. He refused the lazy statist habit of declaring a resource “too fluid,” “too invisible,” or “too socially important” for property rights, and then handing it to bureaucrats. On this point he was right to be suspicious: “public interest” has too often meant only administrative discretion without ownership, accountability, or clear limits.
So Rothbard should be remembered as early, radical, and synthesizing. Early, because spectrum and waterways were still largely treated as public-law problems. Radical, because he applied homesteading logic to resources most lawyers treated as exceptional. Synthesizing, because he fused Coase and Milliman’s emerging critiques with a harder Lockean-Austrian theory of first use, alienability, and trespass. He did not merely ask whether markets could outperform regulators. He asked why regulators should own the field at all. That question remains as uncomfortable for the administrative state now as it was in 1962.
