Friday, December 11, 2009

Peñalver and Katyal's Property Outlaws

Yale University has just published Property Outlaws, by Eduardo M. Peñalver (Cornell) and Sonia K. Katyal (Fordham).  Here's the burb from the YUP website:

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.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Eduardo Moisés Peñalver is a professor at the Cornell Law School.

Sonia K. Katyal is a professor of law at Fordham Law School.

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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.

Posted by: Patrick S. O'Donnell | Jan 2, 2010 5:40:29 PM

This book will be the subject of discussion at an upcoming event, on Feb. 4, 2010, at Fordham Law School. Here are the details:
The spring 2010 Natural Law Colloquium will take place on Thursday, February 4, at 6:00 pm in the McNally Amphitheatre of Fordham Law School. Our speakers will be Professor Eduardo Penalver (Cornell Law School) and Sonia Katyal (Fordham Law School), and our topic will be: "Property Outlaws: On Ownership, Law, Morality, and Disobedience". This event will celebrate the recent release of a new book by Professors Penalver and Katyal ("Property Outlaws: How Squatters, Pirates, and Protesters Improve the Law of Ownership"), and will provide a venue for discussing a host of issues raised in that book (e.g., the nature and limits of private property ownership, the imperatives of social justice, the possible justifications for civil disobedience and stealing, etc.). This event is free and open to the public. Attorneys may earn CLE credit.

For more information on the Natural Law Colloquium, please visit:

Posted by: Michael Baur | Jan 28, 2010 1:13:27 PM

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