Strahilevitz Defends the Right to Trash Your Own Stuff
The Red Sox Curse may be old news, but the Chicago Cubs are still working on theirs. And so far, nobody in Chicago has topped the curse-busting efforts of Harry Caray's Restaurant. In December 2003, for the sum of $113,000 and change, the chain's executives bought the infamous "Bartman ball" - the ball involved in that unfortunate incident of fan interference that may or may not have cost the Cubs a trip to the 2003 World Series - and two months later they blew it up on MSNBC. In other words, for a publicity stunt, some wealthy Cubs fans bought a piece of baseball history and - boom! - turned it into so many burnt niblets of cowhide, twine, and rubber. In so doing, argues Lior Jacob Strahilevitz, a young University of Chicago law professor, in the latest issue of the Yale Law Review, those Cubs fans exercised a glorious old Anglo-American legal right that may be endangered in our benighted modern era: The right to destroy your own property.
"The Right to Destroy" - that's also the title of Strahilevitz's article - is the extreme example of your right to use your property in any way you wish, short of harming someone else (or their property). You can spend your earnings on your child's education or on a $25,000 wedding dress for your third wife; and you can paint your '55 Bugatti pink and let it rust, if the mood strikes. (Sadly, you're not supposed to light cigars with $100 bills, since rendering currency unfit for circulation is a crime.)
Yet Strahilevitz notes dozens of ways in which courts have chipped away at the once-respected right to destroy in recent years. This is true both for the living and the dead. In Missouri, a state court case in 1975 set the pattern for many others involving wills: A woman named Louise Johnson called in her will for her St. Louis house to be razed, the land under it sold, and the money given to her children. The children were fine with that, but the neighbors objected that this seemingly irrational gesture would harm property values - and the Missouri courts agreed. Courts today are unwilling to let dead people waste their property.
But Strahilevitz says razing one's house can be an important act of expression: Think of the naturalist who wants his homestead to revert to nature.
In the cultural arena, Strahilevitz suggests that if, say, Philip Roth instructed his heirs to destroy an unpublished manuscript, today's courts would probably side with the heirs. While he's alive, the court might reason, Roth might be persuaded to change his mind. Once deceased, given the extraordinary artistic and monetary value of the manuscript, the interests of the living should trump those of the dead.
The living, too, face new constraints on their right to destroy. It used to be that presidents owned their own working and personal papers; since 1978, however, following disputes over the Nixon papers, a president can't throw away a doodle, or hold onto it after leaving office, without getting permission from the National Archivist. And increasingly, historic-preservation laws applying to buildings limit the destruction even of shutters or paint schemes.
Everyone sees the upside to these policies, but not always the downside. "Empowering owners to destroy their property," Strahilevitz writes, "can promote important expressive interests, spur creative activity, and enhance social welfare."
Even the worst cases of nihilistic destruction - a decadent aristocrat who draws mustaches on an Old Master painting - can be seen as the price you pay for a smoothly efficient system of property ownership.
Strahilevitz's argument cuts against contemporary trends - and utterly contradicts the views expressed by Joseph L. Sax, a well-known Berkeley law professor and author of the 1999 book "Playing Darts with a Rembrandt." Collectors of art and other cultural artifacts, Sax argued, should be seen not as owners but as stewards. Congress, he said, should be able to decree not only that you can't desecrate great art works, but that you have to lend them to public museums on occasion. (Since 1990, living artists in America do have limited rights to protect their own works: You must get their permission before you destroy them.)
How seriously does Strahilevitz take his own views? Well, he believes Kafka's friend and executor, Max Brod, should have obeyed the writer's orders that the manuscripts of his novels "The Trial" and "The Castle" be burned. If writers can't trust that those who survive them will destroy unwanted works, they might not embark on risky projects that could hurt their reputations if they don't pan out, he says. (Would Ralph Ellison's reputation be even greater if "Juneteenth," published posthumously to mixed reviews, had gone up in smoke?)
So for Kafka's sake, and that of all artists, Strahilevitz says, Kafka's masterpieces should have gone into the fireplace. "And I say that with a heavy heart," he adds, "because 'The Castle' happens to be my favorite novel."