Friday, January 15, 2010

Property Outlaws

By Mike Dorf

Here's a plug for a new book co-authored by my colleague Eduardo Penalver and Fordham law professor Sonia Katyal.  The book is Property Outlaws and its core thesis is that people who violate property rights end up reshaping the law of property, and not just simply by inducing the right-holders to seek enforcement of those rights.  Rather, the argument is that property outlaws change the very nature of property law, often in ways that end up being beneficial to the initial property holders in the first place and society at large.  Here's the official promo:
Property Outlaws puts forth the intriguingly counterintuitive proposition that, in the case of both tangible and intellectual property law, disobedience can often lead to an improvement in legal regulation. The authors argue that in property law there is a tension between the competing demands of stability and dynamism, but its tendency is to become static and fall out of step with the needs of society.

The authors employ wide-ranging examples of the behaviors of “property outlaws”—the trespasser, squatter, pirate, or file-sharer—to show how specific behaviors have induced legal innovation. They also delineate the similarities between the actions of property outlaws in the spheres of tangible and intellectual property. An important conclusion of the book is that a dynamic between the activities of “property outlaws” and legal innovation should be cultivated in order to maintain this avenue of legal reform.
We might expect the Penalver/Katyal thesis to hold true across all areas of legal regulation.  In other words, "outlaws" in general, not just "property outlaws," should shape and improve the law: Disobedience, whether civil or not, can expose gaps between social norms and legal regulation, leading those responsible for the latter to adjust.  But not invariably.  For example, in most U.S. jurisdictions, there is an an unwritten rule that drivers can exceed the speed limit by 5-10 mph without expecting to be ticketed.  Yet that doesn't lead to any change in the law, partly because of the Spinal Tap phenomenon.  ("11 is 1 louder.")  If lawmakers simply raised the speed limit by 5 or 10 mph, drivers would then take that as the new baseline.  In other contexts, widespread lawbreaking signals officials to change enforcement strategies rather than the substantive law itself.  E.g., during gang wars, no one proposes making murder legal.

I would also observe what we might think of as a complementary point: People who exploit loopholes in, but do not break the letter of the law, do not necessarily induce improved legal regulation.  Here I have in mind campaign finance regulation and the taxation of complicated financial transactions (setting aside First Amendment limits on the former).  In both areas, we see a recurring pattern: 1) Congress addresses a problem with a general rule; 2) For a short time, the regulated entities are stymied but then they figure out how to comply with the letter of the rule while still achieving the result they want (and that Congress wishes to forbid)--such as funneling money from influence seekers to politicians or avoiding taxation.  (Tax law has a "substance over form" doctrine to address this phenomenon in general but very good tax lawyers can often game that too); 3) So Congress writes a new law that directly addresses the circumventing transactions, whereupon we go back to step 2).  Lather, rinse, repeat.

In these cases of rule testers rather than rule breakers, regulation does not really get better over time.  In fact, the whole game generates a great deal of wasted activity in the form of evasion and responses to evasion.  Does this mean that evaders never lead to improvements in the law?  No.  There are undoubtedly situations in which it is possible to write an optimal rule but for some reason the lawmaker wrote a sub-optimal one.  In these situations, an evader can highlight the law's flaw and thereby inspire change.  But that strikes me as a less interesting phenomenon than the dynamic Penalver and Katyal identify.


Patrick S. O'Donnell said...

At the PropertyProf Blog I made the following comment:

I have yet to read this provocative sounding book but permit me to proffer two observations:

If the salutary legal effect described by Peñalver and Katyal is best described as a "by-product," in which case one is making an ex post assessment, this is of a different order from an ex ante justification (thereby allowing, fostering or promoting illegal behavior). Jon Elster explores this issue in Sour Grapes: studies in the subversion of rationality (1983: see the discussion of 'self-defeating political theories,' pp. 91-100), wherein he explores "certain arguments for political constitutions and institutions [that] are self-defeating, since they justify the arrangements in question by effects that are essentially by-products:"

"Here an initial and important distinction must be drawn between the task of justifiying a constitution ex ante and that of evaluating it ex post. ...Tocqueville, when assessing the democratic system in America, praised it for effects that are essentially by-products. As an analytical attitude after the fact, and at some distance, this makes perfectly good sense. The difficulty arises when one invokes the same arguments before the fact, in public discussion. Although the constitution-makers may secretly have such side effects in mind, they cannot coherently invoke them in public."

This would appear to be an issue worthy of address in any conclusion aiming to "cultivate" a "dynamic between the activities of 'property outlaws' and legal innovation.

Secondly, their thesis appears to bear comparison (by analogy) with a recent argument in international legal theory made by Allen Buchanan in Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law (2004). Buchanan contends that "the most promising strategy for reform [of the existing international legal system] may require violating existing international law," and that such violations are nonetheless "morally justifiable." Here, Buchanan envisions something like principled civil disobedience in international law and relations toward reforming the current global legal regime. This international civil disobedience is principled inasmuch as it envisions a "rule-governed and treaty-based regime for humanitarian armed intervention," but is civilly disobedient with regard to UN Charter-based law regarding the use of force ('aggression and crimes against peace'). Again, the civil disobedience strategy is principled (hence 'responsible') because, in Buchanan's words,

"Violations of fundamental rules of existing international law, such as the prohibition against preventive war and against any use of force that does not qualify as self-defense and lacks Security Council authorization, are irresponsible, unless they are accompanied by a sincere effort to construct international legal structures to replace those they damage or render obsolete."

If only for these reasons, I look forward to reading their book.

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