Publication Date

2007

Publication Title

University of Pennsylvania Law Review

Abstract

Most people do not hold those who intentionally flout property laws in particularly high regard. The overridingly negative view of the property lawbreaker as a "wrongdoer" comports with the status of property rights within our characteristically individualist, capitalist, political culture. This reflexively dim view of property lawbreakers is also shared, to a large degree, by property theorists, many of whom regard property rights as a relatively fixed constellation of entitlements that collectively produce stability and efficiency through an orderly system of ownership. In this Article, Professors Peihalver and Katyal seek partially to rehabilitate the reviled character of the intentional property lawbreaker, and to show how property outlaws have played an important role in the evolution and transfer of property entitlements. The authors develop a typology of the property outlaw by distinguishing between "acquisitive" and "expressive" outlaws. They show that both types of property outlaw have enabled the reevaluation of and, at times, productive shifts in, the distribution or content of property entitlements. What emerges from this study is a vision of property law that looks beyond its capacity for fostering order and stability, focusing instead on its dynamic function as a site for the resolution of conflict between owners and nonowners. The authors argue that, if property is to perform this function, the law should be careful not to overdeter nonviolent refusals to abide by existing property arrangements.

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