The right to destroy.

• Author: Strahilevitz, Lior Jacob

CONTENTS INTRODUCTION I. FUNDAMENTALS OF THE RIGHT TO DESTROY A. The Jus Abutendi B. What Is Destruction? C. The Nature of the Right II. PROPERTY DESTRUCTION AND WASTED RESOURCES A. Justifications for Preventing Destruction: Waste and Other Externalities 1. The Destruction of Buildings 2. Destruction by Burial: Laws and Customs B. Contexts in Which We Tolerate Substantial Waste C. Houses Versus Organs: An Exploration D. Justifying Destruction: When Destruction Is Creation 1. Patent Suppression 2. Presidential Papers 3. Historic Preservation E. Our Distaste for Waste: An Assessment III. DESTRUCTION, DISCOURSE, AND VALUES A. The Expressive Value of Destruction B. If I Made It, Can I Destroy It? C. Biological Exceptionalism? IV. DISFAVORED TREATMENT FOR TESTAMENTARY DESTRUCTION A. Why a Testator Has a Stake in Destroyed Property B. State Action and Transaction Costs C. Publicity and Social Norms D. Testamentary Capacity E. A Sui Generis Solution: A Safe Harbor for Testamentary Destroyers CONCLUSION INTRODUCTION

In 1999, Black's Law Dictionary seems to have erased a long-recognized right of property owners. The revision went mostly unnoticed, which is perhaps unsurprising given its placement on page 1130 of the newly revised text. A comparison of the sixth and seventh editions' texts illustrates the nature of the revision:

Owner. The person in whom is vested the ownership, dominion, or title of property; proprietor. He who has dominion of a thing, real or personal, corporeal or incorporeal, which he has a right to enjoy and do with as he pleases, even to spoil or destroy it, as far as the law permits, unless he be prevented by some agreement or covenant which restrains his right. (1) Owner. One who has the right to possess, use, and convey something; a proprietor. (2) The earlier definition had been remarkably stable, with virtually identical definitions appearing in legal dictionaries from the mid-nineteenth century. (3) And yet, as part of an extensive revision, the seventh edition's editors decided to exclude what many would perceive to be the most extreme feature of property ownership--the right to destroy.

This revision is in many ways surprising. As a matter of everyday experience, the right to destroy one's own property seems firmly entrenched. Rational people discard old clothes, furniture, albums, and unsent letters every day. Most of this "junk" is worth little or nothing, so its destruction proves entirely uncontroversial. Indeed, it is difficult to imagine how a modern capitalist economy would function if owners were barred from destroying obsolete refrigerators, unfashionable clothes, or rough drafts of written work. Even in the context of valuable property, popular sentiment seems to tolerate substantial property destruction. For example, American cadavers are frequently buried wearing wedding rings, other jewelry, and expensive clothing. (4) And no one took seriously historic preservationists' protests when a Chicago restaurant chain spent $113,824 to purchase and destroy the infamous "cursed" baseball that Steve Bartman deflected during game six of the 2003 National League Championship Series. (5)

That said, Black's Law Dictionary's apparent abrogation of the right to destroy is neither an accident nor an outlier. Indeed, the seventh edition's implicit rejection of the right to destroy mostly tracks current trends in American law. When asked to resolve cases where one party seeks to destroy her property, courts have reacted with great hostility toward the owner's destructive plans. Despite the existence of a norm that tolerates the burial of wedding rings, courts might well refuse a decedent's humble request to wear such jewelry for eternity. (6) If a testator orders her executor to destroy her home upon her death, the law probably will render the executor unable to carry out her wishes. (7) And if a landlord requests the city's permission to demolish a venerable but badly burned building that has become an eyesore, a teetering hazard, and a financial burden, the government can thwart her wishes. (8) Confronted with arguably hard cases and high stakes, many American courts have rejected the notion that an owner has the right to destroy that which is hers, particularly in the testamentary context.

This trend of substantially curtailing property owners' destruction rights was given further momentum recently by two of the nation's most capable property scholars. Joseph Sax's book Playing Darts with a Rembrandt argues that American law is far too deferential to the wishes of those who seek to destroy property that might have cultural significance. (9) Sax advocates depriving owners of the right to destroy works of art; literary works; items of antiquity; correspondence with public officials; and newly built, architecturally important buildings. (10) Indeed, the logic of Sax's approach even seems applicable to famous, cursed baseballs. Similarly, Edward McCaffery has argued that there is no place for a right to destroy or waste one's own property in a modern economy, (11) at one point referring to the right as "an embarrassment in Anglo-American law." (12) To McCaffery, the only good reason for retaining the right to destroy is the rarity with which owners intentionally destroy permanent assets. (13)

In advocating further substantial limitations on the owner's right to destroy, Sax and McCaffery are not picking a fight with anyone in particular. The right to destroy presently lacks a constituency within the American legal academy. (14) This Article responds to Sax, McCaffery, and the various judicial antidestruction rulings by presenting a qualified defense of an owner's right to destroy valuable resources. (15) On my account, empowering owners to destroy their property can promote important expressive interests, spur creative activity, and enhance social welfare. Moreover, a relatively laissez-faire attitude toward property destruction avoids the enormous transaction costs that would be incurred in a Saxist world. That is not to say that the right to destroy should be absolute. Indeed, I will identify a few contexts and considerations in which restrictions on the destruction of property are highly desirable.

The ambition of this Article, then, is to consider two questions: (1) What interests are furthered by permitting an owner to destroy his property? and (2) When should those interests give way to societal concerns about wasted resources and negative externalities?

Part I of the Article sets forth the historical treatment of the right to destroy and explores some conceptual difficulties inherent in any discussion of property destruction. Under Roman law, the right to destroy or abuse--the jus abutendi--served the important function of demarcating the boundaries of an owner's rights in property. Under this conception, destruction functioned as the most extreme recognized property right, so the owner who could destroy his property necessarily had the right to use it in less extreme fashions. Blackstone's characterization of the English common law echoed similar themes, limiting the owner's right to destroy only in those cases where destruction occurred in a manner that threatened the property rights of third parties. In this sense, we shall see that Blackstone rejected John Locke's arguably narrower notion of ownership. In the twentieth century, the right to destroy fell out of favor, and the most recent literature has argued that such a right, if it exists at all, should be substantially circumscribed on public policy grounds. Part I then offers a definition of property destruction that steers the reader toward the interesting, contested cases of destruction that affect future generations.

Part II examines the major argument courts have put forth to justify limitations on the right to destroy one's own property--the fear that valuable resources will be wasted. Most of the case law that limits the right to destroy does so on this basis. While waste prevention is a valid basis for restricting one's right to destroy, an analysis of the case law suggests that courts often fail to appreciate the ways in which protecting the right to destroy can enhance social welfare by protecting privacy, creating open spaces, encouraging innovation and creation, or promoting candor and risk taking. A critical reading of the cases suggests the various antiwaste rules that courts have promulgated might well have resulted in diminished social welfare by discouraging the creation of the valuable property courts are so keen on protecting. Part II also considers contexts in which the law tolerates substantial waste, focusing on organ transplantation policy and patent suppression. These examples can help develop the broader case for destruction generally. Indeed, society's unfortunate willingness to tolerate substantial organ destruction renders the law's hostility to less harmful destruction somewhat perplexing.

Part III explores the intangible benefits associated with property destruction. When rational people destroy valuable property, they often do so because of deeply held expressive interests. History provides many examples in which valuable pieces of property have been destroyed by owners who used destruction to gain attention for a cause or message. The Article argues that under certain circumstances, these expressive interests ought to trump the social waste that results from the destruction of valuable property. It then suggests that the antidestruction provisions of the United States's Visual Artists Rights Act provide a useful model for reconciling society's interest in preserving irreplaceable works of art with the expressive interests of property owners and the general public. Finally, Part III concludes by exploring whether those who create property, particularly intellectual property, ought to have expanded destruction rights.

Part IV examines testamentary destruction, a thread that runs through...