Property Outlaws

Thanks for the post, Rick.  This paper is actually the first salvo in a larger project that we hope to turn into a book.  It will focus on the role of lawbreaking in the evolution of both traditional property and intellectual property.  Our focus in this paper is on traditional property.  You raise very important questions that we try to address in the paper through our typology of lawbreaking.  The sort of person you're referring to would fall within our "acquisitive" category.  We contrast that sort of lawbreaking with "expressive" lawbreaking (such as the 1960 lunch counter sit-in protesters, who intentionally violated laws against criminal trespass) and "intersectional" lawbreaking (we use the example of the 1980s urban squatters), both of whom are seeking to express their desire for substantive legal change, rather than (or, in the case of intersectional outlaws, in addition to) reallocation of property entitlements. 

We give the shortest leash to acquisitive outlaws because of (among other things) the problems you raise.  By saying that the law should not overdeter, we mean that, at a minimum, the law should not aim at complete deterrence.  That is, we think there is some value to some property law-breaking, even of the acquisitive sort.  We point towards doctrines like necessity and adverse possession as evidence that the law already recognizes such value.  Deterrence that aimed at zero property crime would sweep up valuable as well as value-less sorts of property lawbreaking.

The changes we suggest for existing law are fairly modest, I think.  We talk about reducing the time period for adverse possession (in light of technological change making it easier to monitor and enforce property rights) and increasing the scope of the necessity defense to cover things like economic necessity (which is currently excluded in many jurisdictions), drawing on Aquinas and others for support.  We expect a bigger doctrinal payoff in the IP area. 

I tend to post things on SSRN fairly early in the revision process, because that seems to me to be the purpose of sharing unpublished work.  So I apologize for the roughness in the paper, which we are continuing to rework on a daily basis.  And comments are most welcome.