The Yale Law Journal

January 2005

The Right To Destroy

Lior Jacob Strahilevitz
114 Yale L.J. 781 (2005)

Do you have the right to destroy that which is yours? This Article 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 owners' rights to destroy cultural property. Yet this property right has received little systematic attention. The Article 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 deemphasized in opinions involving the destruction of buildings and other structures. And an analysis of cases involving the destruction of frozen human embryos may shed light on creators' rights to burn unpublished manuscripts or works of art. In advocating a more unified treatment of destruction rights, the Article argues that greater deference to owners' destructive wishes often serves important welfare and expressive interests.

The Article also critiques existing case law that calls for particular hostility toward will provisions that direct the destruction of testators' valuable property. Courts and commentators have not given persuasive justifications for restricting testamentary destruction. The Article proposes a safe harbor provision whereby sincere testators who market future interests in their property during their lifetimes and forgo the market prices for those future interests can have their destructive wishes enforced.