Property outlaws can improve the system, Peñalver argues

Despite the cliché, most rules are not actually made to be broken. But sometimes, said Cornell law professor Eduardo Peñalver, breaking property laws can be a vital step toward changing a legal system -- and a society -- for the better.

Peñalver spoke at an April 28 panel in Myron Taylor Hall celebrating the release of his new book, "Property Outlaws: How Squatters, Pirates and Protesters Improve the Law of Ownership" (Yale University Press). The book was co-authored with Sonia Katyal of Fordham University School of Law.

It begins with one of the most notable cases of potential property lawbreaking in recent history: the first lunch counter sit-in, staged quietly by four African-American freshmen at North Carolina Agricultural and Technical University in Greensboro, N.C.

"We look back on these sit-ins, and we canonize them now," Peñalver said. "But at the time they were very controversial. These were college students who sort of stepped into the breach on their own. To me they are heroes."

The students' action helped launch similar protests across the South, ultimately leading to the prohibition of racial discrimination in privately owned places of public accommodation under Title II of the Civil Rights Act of 1964.

And there have been many other similar episodes throughout history. "The book is wonderful, because it's filled with compelling stories about admirable outlaws -- people breaking property laws for noble purposes and defensible reasons," said Greg Lastowka, law professor at Rutgers School of Law-Camden and one of three speakers at the event.

While the authors emphasize that they don't endorse indiscriminate lawbreaking, Lastowka said, Peñalver and Katyal illustrate cases in which property outlaws -- individuals or groups who break laws of physical property (i.e., squatters or trespassers) or of intellectual property (i.e., pirates and copyright violators) -- drive valuable reforms.

"When people break a law, they can provide a signal to the public and to lawmakers that the property rules being broken are illegitimate or in some way not worth the cost," Lastowka said. They can also lead to more equitable distribution of goods, as in the case of Robin Hood, who steals from the rich to give to the poor.

The authors also make a case for considering physical and intellectual property outlaws together, said Laura Underkuffler, Cornell professor of law. "We really have these two normative systems. One of the most interesting aspects of the book is its refusal to accept this divide, and rather to engage in a dialogue about shared norms."

The book "is everything I anticipated," she added; "a very rich, brilliantly intuitive and always provocative work ... turning all our pre-existing ideas about property and human life upside down."

Peñalver noted that in general, he and Katyal support private property rights.

"We're guilty of being bourgeois apologists for private property. But we think that this sort of play around the edges is a vital part of what keeps that system running," he said.

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Joe Schwartz