July 15, 2004
Vol. 23 No. 19

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    Right to destroy property, or lack of it, has implications for broad range of legal, public policy issues

    By Peter Schuler
    News Office

    Lior Strahilevitz’s research in the law of property, and specifically, the right to destroy, led to his discovery that the long-recognized right of property owners to destroy what they own appears to have been erased from the definition of the term tucked away on page 1,130 of the latest edition of the authoritative Black’s Law Dictionary.

    The right, or lack of it, has important implications for a broad range of legal and public policy issues, which includes an artist’s control over the intellectual property he or she creates and an individual’s disposition of organs and embryos.

    Strahilevitz, an Assistant Professor in the Law School who teaches a course in property law, presented his research at an interdisciplinary gathering of faculty members hosted by the Harris School’s Cultural Policy Center.

    “As a matter of everyday experience, the right to destroy one’s own property seems firmly entrenched,” Strahilevitz said. “A definition of property, which includes its most extreme incidence of ownership, has been virtually unchanged since the mid-19th century. As far back as Roman law, the prevailing attitude has been to give an owner the right to use, or to misuse, his private property, without the state’s interference: jus utendi et abutendi.

    “Rational people discard old clothes, furniture, albums and unsent letters every day,” said Strahilevitz. “And even in the context of valuable property, popular sentiment seems to tolerate substantial property destruction, as is the case when cadavers are buried wearing wedding rings, other jewelry and attractive clothing.”

    Strahilevitz also pointed to the purchase by restaurant owners of the infamous baseball deflected by a Cubs fan in Game 6 of the last National League Championship.

    “No one took seriously the objections of historic preservationists when the restaurant owners immediately announced plans to destroy the ball,” he said. (The goal was to exorcise a supposed curse that the original proprietor of the Billy Goat Tavern placed on the Cubs after his goat was refused entrance to a 1945 game at Wrigley Field).

    Strahilevitz explained that the change in definition is a reflection of trends in American law since the 20th century, with court decisions that reflect growing hostility toward owners’ destructive plans, based on a fear that valuable resources will be wasted.

    “This view was recently given further momentum by the noted property scholar Joseph Sax of the University of California at Berkeley,” Strahilevitz said. “Sax has argued that the American law is far too deferential to the wishes of those who want to destroy property that might have cultural significance, which he defines very broadly and which might even seem applicable to cursed baseballs.”

    Strahilevitz took issue with this approach and believes, with some exceptions, that “protecting the right to destroy can enhance social welfare by protecting privacy, creating open spaces, encouraging innovation and creation, facilitating expression, and promoting candor and risk-tasking.” He noted that the “anti-waste” rules promulgated by courts might have ironically resulted in diminished social welfare “by discouraging the creation of the valuable properties that the courts are so keen on protecting.”

    Most cases that involve destruction of property arise from an owner’s apparently sincere wishes expressed in a will. Strahilevitz proposed a “safe harbor” rule in which the law would provide that destructive instructions contained in a will would be honored if the owner had notified the public of the possibility that the post-mortem interest in the property might be purchased before it was destroyed.

    Among other benefits, Strahilevitz said “marketing the future interests in the property would alert community members and heirs apparent to the owner’s intentions while they were still in a position to exert influence and perhaps change the owner’s mind.”

    Strahilevitz believes that Congress’ Visual Artists Rights Act is an example of a balanced, sophisticated approach to destruction cases where significant interests exist on both sides. “As I read the act, the law privileges the creation of art over the destruction of art, while recognizing that both creative and destructive acts have expressive value,” he said.

    Strahilevitz cited organ donation and embryo transfer as particularly difficult contexts, especially where an owner’s destructive act of forbidding donation and transfer further his or her expressive or religious objectives, which may or may not trump fundamental legal concerns about wasted resources and other legal and public policy concerns.

    In these settings, he noted, “laws and customs may be too deferential to owners’ destructive wishes, given the enormous social value of the resources being destroyed.”