74 Pages Posted: 19 Jan 2004 Last revised: 16 Nov 2011
Date Written: January 1, 2004
Do you have the right to destroy that which is yours? This paper addresses that fundamental question. In contested cases, courts are becoming increasingly hostile to owners' efforts to destroy their own valuable property. This sentiment has been echoed in the legal academy, with recent scholarship calling for further restrictions on an owner's right to destroy cultural property. Yet this property right has received little systematic attention. The paper therefore examines owners' rights to destroy various forms of property, including buildings, jewelry, transplantable organs, frozen human embryos, patents, personal papers, and works of art.
A systematic treatment of the subject helps support a qualified defense of the right to destroy one's own property. For example, an examination of American laws and customs regarding the disposition of cadaveric organs helps one understand and weigh the expressive interests that prompt people to try to destroy jewelry via will. Similarly, an examination of patent suppression case law points toward a form of ex ante analysis that has been de-emphasized in opinions involving the destruction of buildings and other structures. An analysis of cases involving the destruction of frozen human embryos may shed light on creators' rights to burn unpublished manuscripts or works of art. And collectivist theories of free speech may help explain why the Visual Artists Rights Act sensibly prohibits the destruction of paintings by living artists, but not Old Masters. In advocating a more unified treatment of destruction rights, the paper argues that greater deference to owners' destructive wishes often serves important welfare and expressive interests.
The paper also critiques existing case law that calls for particular hostility toward will provisions that direct the destruction of a testator's valuable property. Courts and commentators have not given particularly persuasive justifications for restricting testamentary destruction, and the paper proposes a safe-harbor provision whereby sincere testators who jump through certain hoops during their lifetimes can have their destructive wishes enforced.
Keywords: property, destruction, cultural property, art law, historic perservation, wills, estates, organ donation, intellectual property, waste
Suggested Citation: Suggested Citation
Strahilevitz, Lior, The Right to Destroy (January 1, 2004). Yale Law Journal, Vol. 114, p. 781, 2005; U of Chicago, Public Law Working Paper No. 53; University of Chicago Institute for Law & Economics Olin Research Paper No. 205. Available at SSRN: https://ssrn.com/abstract=488847 or http://dx.doi.org/10.2139/ssrn.488847