Steve Sachs Duke


Tuesday, February 14, 2006


Of Rabbits and Hunger Strikes: Lior Strahilevitz, whose article on The Right to Destroy partly inspired my Saving Toby piece noted below, responds to the piece on the U. Chicago Faculty Blog. He writes:

Animal cruelty laws ought to govern threats like the one faced by Toby. And the appropriate response to a child who threatens to hold her breath until she turns blue is probably to call the bluff, though I will admit to a lack of expertise on that score. Where there is reason to think that calling the bluff will force the owner to destroy the property in question so as to maintain the credibility of future threats, the state can always exercise its eminent domain power to take property from the person who is threatening to destroy it. Indeed, I think that using the eminent domain power to save Toby is analogous in some ways to what the government was attempting to do in Kelo, and someone who believes that Kelo was wrongly decided should ask herself whether she would object to using eminent domain to take a Picasso away from someone who credibly pledges to burn it.

Sachs says that “extortionate” destruction of one’s own property does not typically implicate constitutionally protected expressive interests. But we should be familiar with one very effective form of “threatening to kill Toby.” Hunger strikes have been used with great effectiveness by political dissidents, so I guess I wonder about Sachs’s determination that prohibiting the “hunger strike” variety of blackmail will not implicate the expressive and autonomy interests that often arise when people decide to destroy their own valuable property. The fact that a hunger striker will eat if his demands are satisfied hardly removes the expressive content from his act.

I'd be the first to admit that the Comment was written with tongue at least partly in cheek--and that the proposed statutory language would need a good deal more refinement. However, I'm not sure that Strahilevitz's critique is sound.

Starting with the question of hunger strikes, I think it's not difficult to distinguish the expressive value they embody from the threat to Toby's life. Expressive hunger strikes generally don't involve destruction of property, as we typically understand the term, nor are they often done for money. (If the average person received a note from a desperate acquaintance that read, "Pay me $50,000 immediately or I'll kill myself--and the blood will be on your hands!," she might have a very different attitude toward the expressive value of such an act.)

Regardless, hunger strikes and other forms of self-immolation would be outside the textual reach of my proposal. Most people are willing to accord a certain measure of control over one's own body, and without trying to advance a "general theory of acceptable coercion," as I wrote in the Comment, it's worthwhile to ask whether the extortionate destruction of property falls within that range.

Additionally, I'm not sure why Strahilevitz considers eminent domain to be a more appropriate approach to Toby's plight. Let's change the example away from rabbits--though I doubt that animal cruelty laws would ever prevent slaughter by a licensed butcher. Suppose the evil Dr. Black threatens to toss a priceless Picasso in the flames, unless his millionaire neighbor pays its ransom. Would eminent domain be the right response? For one thing, the state might never find out about the threat until it's too late--perhaps by Dr. Black's own efforts. ("I'll burn the painting, unless you (a) pay me $5 million and (b) keep this whole thing secret.") For another, even if the state found out, its preferences for risk (or for paintings) might be different from those of the neighbor; perhaps the state would choose to save its money and call Dr. Black's bluff, and the neighbor isn't willing to take that chance. And in any case, if one accepts that threats like these aren't legitimate commercial offers, and deseve some kind of state intervention, why should we prefer the cumbersome and unpredictable processes of eminent domain over a more general deterrent? Why not, at the very least, let the victim seek an injunction against the threatened harm?



And Another: I've also published a brief, light-hearted piece in the Yale Law & Policy Review, on the legal questions posed by the bunny-threatening website The Comment, Saving Toby: Extortion, Blackmail, and the Right to Destroy, 24 Yale L. & Pol'y Rev. 251 (2006), is available on Westlaw as well as on SSRN. The abstract is as follows:

On the website, one may find many endearing pictures of Toby, the cutest little bunny on the planet. Unfortunately, on June 30, 2005, the lovable Toby was scheduled to be butchered and eaten - unless the website's readers sent $50,000 to save his life.

Though Toby's owner has since granted him a temporary reprieve - until Nov. 6, 2006 - the threat raises a fascinating issue of law. Extortion statutes prohibiting threats to destroy property generally do not prohibit threats to destroy one's own property. The law thus provides insufficient protection to a variety of resources on which others place value, including historic buildings, treasured paintings, and adorable bunny rabbits.

This Comment proposes that legislatures protect Toby under a new criminal offense of extortionate destruction. It presents the moral case for the offense by analogy to blackmail. Although destruction of property, like telling others' secrets, is normally lawful, both can be rendered wrongful by the unjustified use of a coercive threat. Such a threat specifically aims at causing unpleasantness to the offeree; the owner commits to killing Toby only because he hopes someone else will pay him not to. Such threats cannot be defended by the economic or expressive values inherent in the traditional right to destroy, and shed light on the ongoing debate over the nature and wrongness of blackmail. The Comment concludes by suggesting model statutory language designed to safeguard property owners' legitimate interests, while appropriately protecting future artworks, antiquities, and bunny rabbits from Toby's sad fate.



Another Form of Writing: Well, although I haven't posted for nine months, I've been keeping myself busy with other writing. My long-revised article, From St. Ives to Cyberspace: The Modern Distortion of the Medieval Law Merchant, is now forthcoming in the American University International Law Review. (A draft has also been posted at SSRN.)

For those interested, here's an abstract:

Modern advocates of corporate self-regulation have drawn unlikely inspiration from the Middle Ages. On the traditional view of history, medieval merchants who wandered from fair to fair were not governed by domestic laws, but by their own lex mercatoria, or law merchant. This law, which uniformly regulated commerce across Europe, was supposedly produced by an autonomous merchant class, interpreted in private courts, and enforced through private sanctions rather than state coercion. Contemporary writers have treated global corporations as descendants of these itinerant traders, urging them to replace conflicting national laws with a law of their own creation. The standard history has been accepted by legal scholars across the ideological spectrum, by economists and political scientists, and by those drafting new regimes to govern Internet commerce.

This Article argues that the traditional view is deeply flawed. Returning to the original sources - especially the court rolls of the fair of St. Ives, the most extensive surviving records of the period - it demonstrates that merchants in medieval England were substantially subject to local control. Commercial customs and substantive laws varied significantly across towns and fairs, and did not constitute a coherent legal order. The traditional interpretation has been retained, not for its accuracy, but for ideological reasons and for its long and self-reinforcing pedigree. This Article takes no position on the merits of shielding multinational actors from domestic law; it merely denies that the Middle Ages provide a model for such policies.

As Legal Theory Blog says, download it while it's hot!




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