Celebrating Trespassers

Property Outlaws
How Squatters, Pirates and Protesters Improve the Law of Ownership
Sonia Katyal & Eduardo M. Peñalver
March 11, 2010

By Sonia Katyal, Professor of Law, Fordham University School of Law & Eduardo M. Peñalver, Professor of Law, Cornell University Law School

Fifty years ago, on Monday, February 1, 1960, Ezell Blair, Jr., Franklin McCain, Joe McNeil, and David Richmond, all freshmen at the North Carolina Agricultural and Technical University, walked into the cafeteria at the Woolworth's Store in downtown Greensboro, North Carolina. They sat down at the counter and quietly waited for service. They received none. Blair, McCain, McNeil, and Richmond were black, and Woolworth's, although not required to do so by law, followed the local "custom" of refusing to allow its black patrons to eat at its lunch counter. Though they received no service, the four men sat quietly and without incident. When the store closed at 5:30, they left. The next morning, the four young men returned, along with sixteen other students from North Carolina A&T. By Thursday morning, the ranks of the sit-in participants had swelled to over sixty. Within a month, similar sit-in protests were occurring at department stores throughout the South. The fight for civil rights would never be the same.

What had been, as one contemporary put it, a civil rights movement dominated by lawyers working quietly in courtrooms had become a mass phenomenon. The student-led sit-ins thrust the civil rights question to the forefront of the 1960 presidential elections, and there is a direct line between the students' activism and the passage of Title II of the Civil Rights Act of 1964. That landmark law, which prohibits racial discrimination in most privately-owned businesses, radically transformed rights of private ownership in the United States and has become one of our most successful civil rights statutes.

It's easy, in hindsight, to downplay the controversy that surrounded the students' tactics, but, at the time, the Greensboro protesters were maligned from all sides as threatening sacred rights of private property and the rule of law in pursuit of what many commentators considered to be a trivial interest in access to lunch counter service. Such criticism did not come just from conservatives and segregationists. According to one account, when Thurgood Marshall heard about the sit-ins, he proclaimed that "he was not going to represent a bunch of crazy colored students who violated the sacred property rights of white folks by going into their stores or lunch counters and refusing to leave when ordered to do so."

Whether the Greensboro students knew it or not, in violating property rights as they did, they tapped into a long tradition within the history of Anglo-American property law. For as long as there has been private ownership, it seems, there have been groups who have sought to challenge the prerogatives of ownership in search of a more just social order. Sometimes these movements have succeeded. More often, they have not. But the pervasive influence of these property outlaw tactics on the development of American property doctrine cannot be denied. In Property Outlaws, we explore the sit-in episode (along with scores of other examples of property lawbreaking) to try to extract broader lessons about the interaction between disobedience and ownership.

Today, forty years after the civil rights movement, we see this dialectic emerge time and time again in contemporary urban and rural environments, with respect to both tangible and intangible forms of property. The bike collective Critical Mass takes over the streets of metropolitan cities in order to reinvent the concept of public space; urban community gardeners take over vacant lots to beautify the city and create a sense of shared ecological responsibility; pirate microradio stations in the Bay Area and mashup artists interrupt everyday sonic worlds; cyberactivists like the Electronic Disturbance Theatre and others mount international electronic civil disobedience campaigns. The debates that frequently accompany these movements continue to unfold.

Drawing, in part upon the historical and contemporary context, our aim is to broaden the focus of property and intellectual property discussions beyond the common recognition of property's need for stability to include its need for dynamism, an ability to change and to fluctuate according to shifting norms, values, and social realities. We hope to rehabilitate, at least to a certain extent, the image of the intentional property outlaw, and to show how she has repeatedly played an integral role in producing our system of property and intellectual property. In doing so, we also hope to shed light on a complex and subtle tension: at the same time that property seems to be so stable and orderly, it also masks a latent instability that stems from the persistence of transgression. Far from universally undermining the value of property, however, this underlying instability is frequently constructive and indeed, necessary to prevent the entire edifice from becoming outdated.

The value of at least certain instances of disobedience is twofold. First, there may in certain situations be value in the outlaw's directly redistributive conduct. That is, there may be circumstances under which we assess that the lawbreaker's decision to take someone else's property, either for himself or to give to another, is itself valuable. We refer to this phenomenon as the lawbreaker's creation of "redistributive value." Second, in cases of persistent, widespread lawbreaking, citizen behavior may communicate useful information to property owners and to the state, indicating that some element of a property law, or some dimension of the owners' use of property, may be out of date or unjust in some respect. We refer to this signaling function provided by outlaw conduct as its "informational value." If property and intellectual property rights were perfectly enforced, either through draconian penalties or certain enforcement, each of these categories of potential value would be eliminated.

The implications of this insight differ somewhat for tangible and intellectual property. In the area of tangible property, our proposals are relatively modest, largely because the law of tangible property already contains within it a number of venerable doctrines that, in our view, acknowledge the value of a significant amount of lawbreaking. Doctrines such as adverse possession (often referred to as "squatters rights") and necessity (which permits people in emergency situations to take what they need in order to survive), provide mechanisms for nonconsensual transfers of property under certain constrained conditions. Although there have been some efforts in recent years to roll these doctrines back or limit their application, we favor preserving them and perhaps even expanding them in a number of respects. In the context of intellectual property, pervasive uncertainty as to the scope of the actual entitlement generates space for disobedience but also causes a great deal of productive behavior to labor under the threat of crippling statutory penalties.

Our aim, therefore, is to broaden the focus so that the discussion of disobedience is not just about property's need for stability, but also its need for dynamism, its ability to change and to fluctuate according to shifting norms, values, and social realities. In other words, we hope to rehabilitate, at least to a certain extent, the image of the property outlaw, and to show how she has repeatedly played an integral role in producing our system of property and intellectual property. Time and again, groups of people have intentionally violated property laws, and in a number of important cases, the law of property has responded by shifting to accommodate their demands, in the process bringing those groups back within the fold of the law-abiding community.