Property outlaws.

• Author: Penalver, Eduardo Moises

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 Penalver 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.

INTRODUCTION I. PROPERTY OUTLAWS A. Acquisitive Outlaws: Squatters and Adverse Possessors in the American West 1. Land for Revenue Versus Land for Settlers 2. Legal Responses B. Expressive Outlaws: The Civil Rights Movement 1. The Lunch Counter Sit-in Movement 2. Legal Responses C. Intersectional Outlaws: Contemporary Urban Squatters 1. Urban Squatters 2. Legal Responses II. WHY PROPERTY OUTLAWS? A. Important Role of Property in People's Lives B. Property 's Conservatism and Stability C. Nonviolent Property Crimes as Less Serious Than Other Sorts of Crimes D. The Communicative Abilities of Property Lawbreaking III. RESPONDING TO PROPERTY OUTLAWS A. Property Outlaws in Deterrent and Retributive Perspectives 1. Deterrent Theories of Punishment 2. Retributive Theories of Punishment B. The Types of Outlaws Revisited 1. Acquisitive Outlaws a. Acquisitive Outlaws in Deterrent Perspective b. Acquisitive Outlaws in Retributive Perspective 2. Expressive Outlaws a. Expressive Outlaws in Deterrent Perspective b. Expressive Outlaws in Retributive Perspective 3. Intersectional Outlaws a. Intersectional Outlaws in Deterrent Perspective b. Intersectional Lawbreakers in Retributive Perspective C. Legal Responses to Property Outlaws 1. Responding to Property Outlaws' Redistributive Value a. Ratifying Certain Forced Transfers i. Adverse Possession ii. Necessity b. Increasing Government-Sponsored Redistribution 2. Responding to Property Outlaws' Informational Value a. Engaging Property Outlaws i. Expressive Necessity ii. Discretionary Relief b. Subsidizing Alternatives to Outlaw Behavior CONCLUSION INTRODUCTION

The image most of us have of the person who intentionally flouts property laws is not particularly favorable. The Oxford English Dictionary, for example, defines a trespasser as a "transgressor, a law-breaker; a wrong-doer, sinner, offender." (1) In early modern England, landowners frequently left "man traps" and "spring guns" along boundary lines to discourage trespass on their lands. (2) Such violent measures were not prohibited by law until the nineteenth century. (3) And in rural areas of the United States, it is not uncommon to come across signs warning that "Trespassers Will Be Shot." (4) The overridingly negative view of property lawbreakers in popular consciousness comports with the centrality of property rights within our characteristically individualist, capitalist, political culture. (5)

The dim view of property lawbreakers is shared to a large degree by property theorists, many of whom tend to focus on the stabilizing role of property law. The importance attached to exclusivity within contemporary theories of property underscores the apparent threat to order and stability posed by property lawbreakers. Many courts and commentators have placed this right at the center of their concept of private ownership. (6) And for those who conceive of "property as exit," the right to exclude plays a crucial role in safeguarding individual liberty, the security of which is a vital function of private ownership. (7)

As Abraham Bell and Gideon Parchomovsky have correctly argued, one key purpose of property law is to provide stability, both for owners and for those who would engage in transactions with them. (8) Property law achieves this stability in a variety of ways. One crucial way is through the criminal enforcement of existing property entitlements. Laws of criminal trespass protect the boundaries around real property established through market transactions. Laws prohibiting larceny, fraud, robbery, and burglary similarly wrap privately determined entitlements within the safety of the publicly enforced criminal law.

In this Article, we supplement the focus on the importance of property's stability by highlighting the powerful, and at times ironic, role of the lawbreaker in the process of fostering the evolution of property. Put another way, the apparent stability and order that property law provides owe much to the destabilizing role of the law-breaker, who occasionally forces shifts of entitlements and laws. A more balanced portrayal of the lawbreaker offers us a richer and much more accurate picture of the dynamics behind the evolution of property entitlements and the forces that generate them. Our goal in this Article is therefore to rehabilitate, at least to a certain extent, the image of the intentional property outlaw, and to show how these lawbreakers have played integral roles in producing a system of property that is characterized by a complex and subtle contradiction: it is at once stable, perhaps even essentially so, and yet this seemingly ordered system at the same time masks a pervasive, but constructive, instability that is necessary to prevent the entire edifice from becoming outdated. (9)

This dialogic vision of property law parallels in many ways recent discussions within constitutional theory that have privileged a popular, bottom-up conception of lawmaking over the more traditional focus on official organs of lawmaking. Larry Kramer, for example, describes the important role played by lawbreaking and mob action in the early Republic's popular constitutional legal culture. (10) The use of such tactics, however, extends far beyond the realm of constitutional law.

Our task is made easier by the fact that, despite the broadly negative view of property lawbreakers that prevails among lawyers and laypeople alike, property outlaws have repeatedly played a powerful and visible role as catalysts for needed legal change. Time and again, groups of people have intentionally violated property laws, and in a number of important instances, property law has responded by shifting to accommodate their demands, bringing them back within the fold of the law-abiding community. From the squatters and adverse possessors of the nineteenth-century American frontier, to the Native American and civil rights protesters of the 1960s, to the urban squatters of the 1970s and 1980s, those disenfranchised by the existing property system have frequently flouted the law in hopes of achieving their goals. Whatever one thinks about the merits of their positions, there can be no doubt that the activities of these property outlaws have been important engines for legal change.

Yet the useful role repeatedly played by lawbreakers in forcing needed reform within the property system has been mostly ignored by property theorists. The failure is attributable, at least in part, to a larger tendency among scholars to focus most of their attention on questions about the conditions conducive to the initial emergence of private ownership regimes, either from systems of commons property or from open-access systems. (11) In addition, a number of scholars have explored the roles of norms and private ordering in the informal adjustment of formal property entitlements. (12)

Property theorists have paid less attention, however, to the equally interesting question of how formal regimes of private ownership evolve from one particular bundle of ownership rights to another. (13) And yet there can be no doubt that, once a robust system of private property has been established, the precise content of that standard bundle of property rights shifts over time in response to varying pressures and incentives, both internal and external to the institution of ownership. Indeed, a focus on the mechanisms of legal evolution within existing private property regimes is all the more important and interesting in an advanced capitalist society like ours, where, for large swaths of resources, the nearly complete "enclosure" of the commons and of open-access resources already has been accomplished. (14)

Some scholars discussing the question of evolution within common law regimes more generally have, quite reasonably, focused on incentives to litigate as an explanation for patterns of change within the law. (15) Others have focused on the means by which interest groups band together to influence legislative legal change, both in the arena of property and elsewhere. (16) But these officially sanctioned mechanisms of legal change offer us only part of the picture, particularly within the law of property.

Certain categories of nonowners are likely to be reluctant, or simply financially unable, to initiate costly civil litigation or to assert effective political pressure to clarify their entitlements. Intentional lawbreaking as a mechanism for legal change is...