Tuesday, April 19, 2016
Casey Faucon (Denver) has posted The Suspension Theory: Hurricane Katrina Looting, Property Rights, and Personhood (Louisiana Law Review) on SSRN. Here's the abstract:
In anticipation of Hurricane Gustav, Mayor C. Ray Nagin announced, “Anyone caught looting in New Orleans will go directly to the Big House...You will go directly to Angola Prison, and God bless you if you go there.” In making that announcement, Mayor Nagin undoubtedly had the events following Hurricane Katrina in mind. Three years earlier, Hurricane Katrina engulfed the city of New Orleans. When the storm passed and the waters rose, New Orleans was in chaos. Media reports of people vandalizing and looting stores portrayed the image that the city had disintegrated into a state of anarchy. Such reports depicted the looters as heartless criminals who wrongfully took advantage of the disaster-stricken city. But this negative mentality against looting in the aftermath of natural disasters is not reflected in the Louisiana criminal legislation. The penal code establishes a less harsh punishment for looting that occurs after a state of emergency, as opposed to looting that occurs in any other circumstance.
These are just two examples of the broad spectrum of how the law and society view the actual criminality of looting after natural disasters. Although some people regard the looting of “luxury goods” as unconscionable, others sympathize with and excuse looters who take only “necessity goods.” Perhaps the conscious distinction has less to do with society’s moral perceptions of looting and more to do with society’s perceptions of ownership. Professors Eduardo M. Penalver and Sonia Katyal argue that society negatively views “property outlaws” because such individuals undermine the stability that property laws strive to produce. Looters, as a particular type of property outlaw, contribute to the fracturing of that stable foundation. Instead of dismissing property outlaws as rebellious, subversive characters, Penalver and Katyal suggest that society should embrace the property outlaw as an enabler of the “reevaluation of, and, at times, productive shifts in the distribution or content of property entitlements.”
This Article demonstrates how, after natural disasters like Hurricane Katrina, society’s reaction to looters depends upon the extent to which the looter disrupts the pre-existing property rights under Louisiana property law. To facilitate this discussion, this Article uses a theory first articulated by renowned sociologists and group behavioral theorists Enrico Quarantelli and Russell Dynes — what this Article terms the “Suspension Theory.” This theory illuminates the causal relationship between property rights and societal reactions to looting in different situations.