I have just finished reading the terrific book "Property Outlaws: How Squatters, Pirates, and Protestors Improve the Law of ownership" by Cornell law professor Eduardo Moises Penalver and Fordham law professor Sonia K. Katyal. Even though it's early in the year, I believe this book stands to be one of the more important law books published in 2010, for basically advancing and elaborating on an extremely important argument that has wide applications for all areas of law and not just property law.
The book is of course rich and nuanced, and I cannot do it justice here, so I just want to lay down the basic argument in the hope that it piques your interest. Penalver's and Katyal's main argument is that property disobedience, such as piracy, squatting, trespassing and the like, can actually be beneficial for the improvement and development of property law. In fact, they argue that disobedients serve an important function, and therefore society and the legal regime should be more receptive to legal violations, under certain conditions which they expound upon. I won't go into the details of when and how disobedience might be justified, but the major argument is important enough to develop here.
Often, we look down on law violators. We believe they pose a threat to the rule of law and law and order more generally. This is especially true for those trained in the law, who view violations as deviations which must be dealt with, lest the entire enterprise go down the tubes. And yet, it is hard to argue with the claim that disobedience has its virtues, above and beyond any moral considerations in its favor. Penalver and Katyal elaborate on two such virtues: redistribution and information. For example, they argue that some violations, such as music piracy, copyright infringment of books, or violating pharmaceutical patents, can serve useful purposes by taking from the haves and giving to the have nots. They demonstrate this by discussing, among others, the provision of AIDS medication to the developing world. Informational values can also be enhanced through legal violations. For example, they discuss the alleged copyright infringement of publishing the code behind the "Diebold" vote tabulating machines, and how publishing the code on the internet helped raise awarness to flaws in computerized voting machines prior to the 2004 U.S. elections.
The authors provide many more examples and case studies, and also develop some useful distinctions for policymakers contemplating defenses to property violations, such as the defense of necessity, fair use, or expanding the coverage of adverse possession. For me, however, the most valuable argument in the book is the general one: violators can often, paradoxically, contribute to the rule of law. Resistance can indicate instances where some social problem needs addressing. Violators, in their acts of disobedience, point to such problems and draw the attention of legislators, judges, and other legal officials. It is a historical fact that laws often change because they met with public resistance. Disobeyers, then, can be important catalysts when it comes to legal and social change.
The book is of course rich and nuanced, and I cannot do it justice here, so I just want to lay down the basic argument in the hope that it piques your interest. Penalver's and Katyal's main argument is that property disobedience, such as piracy, squatting, trespassing and the like, can actually be beneficial for the improvement and development of property law. In fact, they argue that disobedients serve an important function, and therefore society and the legal regime should be more receptive to legal violations, under certain conditions which they expound upon. I won't go into the details of when and how disobedience might be justified, but the major argument is important enough to develop here.
Often, we look down on law violators. We believe they pose a threat to the rule of law and law and order more generally. This is especially true for those trained in the law, who view violations as deviations which must be dealt with, lest the entire enterprise go down the tubes. And yet, it is hard to argue with the claim that disobedience has its virtues, above and beyond any moral considerations in its favor. Penalver and Katyal elaborate on two such virtues: redistribution and information. For example, they argue that some violations, such as music piracy, copyright infringment of books, or violating pharmaceutical patents, can serve useful purposes by taking from the haves and giving to the have nots. They demonstrate this by discussing, among others, the provision of AIDS medication to the developing world. Informational values can also be enhanced through legal violations. For example, they discuss the alleged copyright infringement of publishing the code behind the "Diebold" vote tabulating machines, and how publishing the code on the internet helped raise awarness to flaws in computerized voting machines prior to the 2004 U.S. elections.
The authors provide many more examples and case studies, and also develop some useful distinctions for policymakers contemplating defenses to property violations, such as the defense of necessity, fair use, or expanding the coverage of adverse possession. For me, however, the most valuable argument in the book is the general one: violators can often, paradoxically, contribute to the rule of law. Resistance can indicate instances where some social problem needs addressing. Violators, in their acts of disobedience, point to such problems and draw the attention of legislators, judges, and other legal officials. It is a historical fact that laws often change because they met with public resistance. Disobeyers, then, can be important catalysts when it comes to legal and social change.
Thanks Adam! I had heard of the book and your review makes me even more curious about it. It seems mandatory reading for a property course.
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ReplyDeleteyes, thanks for the tip, this looks fascinating. I'm familiar with Katyal's past work on copyright, in particular her stuff on copyright regimes, surveillance, and privacy, which figured largely in my own piece on privacy in the Yale Journal of Law and Technology (http://www.yjolt.org/10/spring/-194).
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