Professor Underkuffler agrees with Peñalver and Katyal that, in a system which disfavors property violations, it is critical to “distinguish positive or desirable property lawbreaking from that which is not.” However, Professor Underkuffler does not believe that relying on efficiency and rectification analyses always provides the correct answer. She wonders whether the true reason for our tolerance of property outlaws is “because the lawbreakers are the losers under the existing regime of property and entitlements, while the targeted owners are winners under the same regime.”
Volume 156 2007 Response