Thirteen Ways to Steal a Bicycle

Theft Law in the Information Age

Stuart P. Green

• Publisher: Harvard University Press
• Year: 2012
• Print ISBN: 9780674047310
• eBook ISBN: 9780674069985
• Topic: Law
• Subtopic: Criminal Law
• Index: Law

Theft claims more victims and causes greater economic injury than any other criminal offense. Yet theft law is enigmatic, and fundamental questions about what should count as stealing remain unresolved—especially misappropriations of intellectual property, information, ideas, identities, and virtual property.

In Thirteen Ways to Steal a Bicycle, Stuart Green assesses our current legal framework at a time when our economy increasingly commodifies intangibles and when the means of committing theft and fraud grow ever more sophisticated. Was it theft for the editor of a technology blog to buy a prototype iPhone he allegedly knew had been lost by an Apple engineer in a Silicon Valley bar? Was it theft for doctors to use a patient's tissue without permission in order to harvest a valuable cell line? For an Internet activist to publish tens of thousands of State Department documents on his Web site?

In this full-scale critique, Green reveals that the last major reforms in Anglophone theft law, which took place almost fifty years ago, flattened moral distinctions, so that the same punishments are now assigned to vastly different offenses. Unreflective of community attitudes toward theft, which favor gradations in blameworthiness according to what is stolen and under what circumstances, and uninfluenced by advancements in criminal law theory, theft law cries out for another reformation—and soon.

Notes

INTRODUCTION

1. Regarding the number of victims and dollar loss, see Federal Bureau Investigation, U.S. Dept. of Justice, Crime in the United States: Uniform Crime Reports, at 6 (2010), http://www2.fbi.gov/ucr/cius2009/offenses/property_crime/larceny-theft.html. (During 2009, there were approximately 6.3 million “larceny-thefts” committed in the United States, accounting for some $5.5 billion in losses, excluding robberies, frauds, and so-called thefts of intellectual property). Regarding the number of offenders, studies suggest that as many as 60 percent of American consumers have shoplifted at some point in their lives. Dena Cox et al., “When Consumer Behavior Goes Bad: An Investigation of Adolescent Shoplifting,” 17 J. Consumer Research 149 (1990). By way of comparison, between 30 and 60 percent of adult Americans (depending on age) say that at some point in their lives they have used illegal drugs. Office of National Drug Control Policy, “Drug Use Trends (October 2009),” http://www.oas.samhsa.gov/NSDUH/2k9NSDUH/2k9ResultsP.pdf, at pp. 95–96.

1. THEFT LAW ADRIFT

1. Quoting, respectively: Rollin M. Perkins and Ronald N. Boyce, Criminal Law (Mineola, NY: Foundation Press, 3d ed. 1982) 389; Herbert Wechsler, “The Challenge of the Model Penal Code,” 65 Harvard L. Rev. 1097, 1112–1113 (1952); James Fitzjames Stephen, History of the Criminal Law of England (Buffalo: William S. Hein, reprint ed. 1883), vol. 3, at 143; Dale E. Bennett, “The Louisiana Criminal Code: A Comparison with Prior Louisiana Law,” 5 Louisiana L. Rev. 6, 37 (1942); Commonwealth v. Ryan, 30 N. E. 364, 365 (Mass. 1892) (Holmes, J.).

2. One exception is the Australian scholar Alex Steel, whose work is discussed below.

3. See, e.g., Robert S. Jackson, “Some Comparative Legal History: Robbery and Brigandage,” 1 Georgia International & Comparative L. J. 45, 87 (1970). The other common law offenses were Murder, Rape, Manslaughter, Sodomy, Arson, Mayhem, and Burglary.

4. William Blackstone, Commentaries on the Law of England (Chicago: University of Chicago Press, reprint ed. 1979), vol. 4, at *230; Perkins and Boyce, Criminal Law, at 343.

5. Perkins and Boyce, Criminal Law, at 343.

6. George Fletcher, “The Metamorphosis of Larceny,” 89 Harvard L. Rev. 469, 474 (1976).

7. Id. at 498.

8. David Ormerod and David Huw Williams, Smith’s Law of Theft (Oxford: Oxford University Press, 9th ed. 2007), at 1.

9. Wayne LaFave, Criminal Law (St. Paul: Thomson West, 4th ed. 2003), at 919–20.

10. Undoubtedly, the victim of such acts, discovering that he had been duped or betrayed into parting with his property, would be angry at the wrongdoer. Yet, as Wayne LaFave puts it, “the malefactor in these two cases is generally less available for retaliatory measures than when the owner discovers him in the process of taking the property out of his possession.” Id. at 920.

11. Anon. v. The Sheriff of London (The Carrier’s Case), Year Book 3 Edw. IV pl. 5 (Ex. Ch. 1473), reprinted in 64 Selden Society 30 (1945) (creating legal fiction of “breaking bulk” where carrier had been given lawful possession of goods which he subsequently converted to his own use).

12. There are generally said to be two kinds of extortion: extortion under color of official right and extortion by means of coercion. The former offense, which was made a crime as early as 1275, is essentially indistinguishable from the crime of receiving or soliciting a bribe. Extortion of this type is not properly viewed as a form of theft and is therefore not directly relevant here. See generally James Lindgren, “The Elusive Distinction between Bribery and Extortion: From the Common Law to the Hobbs Act,” 35 UCLA L. Rev. 815, 838 et seq. (1988).

13. 9 Geo. I, ch. 22, § 1 (1722) (repealed). See generally E. P. Thompson, Whigs and Hunters: The Origin of the Black Act (New York: Pantheon, 1975). Earlier, in 1567, Scotland had made it a crime to obtain property by certain written threats of physical harm to the person or property. 1567 Scot. Parl. Acts, ch. 27.

14. R. v. Pear, 1 Leach 212, 168 Eng. Rep. 208 (1779). The defendant hired a horse from a stable, intending from the outset to steal it. Once again, there seemed to be no trespass in the taking, since the owner of the horse had consented to Pear’s possession of it. This time, the court held that a new species of larceny, which it called “larceny by trick,” had been committed, a majority of the judges reasoning that the owner of the horse retained possession until the time of its conversion by the defendant.

15. 30 Geo. II, c. 24, § 1 (1757); R. v. Young [1789] 100 E. R. 475; Jerome Hall, Theft, Law and Society (Indianapolis: Bobbs-Merrill, 1935; rev. ed. 1952), at 45–52.

16. LaFave, Criminal Law, at 957.

17. Joshua Dressler, Understanding Criminal Law (Newark: LexisNexis, 5th ed. 2009) at 611–612. Another way to think about the distinction is in terms of using deception to buy property (false pretenses) and using deception to borrow or rent it (larceny by trick). LaFave, Criminal Law, at 928.

18. Even as late as the early nineteenth century, some judges questioned whether lost property could be the subject of larceny. E.g., State v. Roper, 14 N.C. 473 (1832).

19. See, e.g., F. David Reisman, Jr., “Possession and the Law of Finders,” 52 Harvard L. Rev. 1105, 1130 (1939); Fowler V. Harper, Fleming James, Jr., and Oscar S. Gray, Harper, James and Gray on Torts, vol. 1, at 113–115 (3d ed. Wolters Kluwer, 2006); William L. Prosser, “The Nature of Conversion,” 42 Cornell L. Rev. 168, 169 (1957).

20. Wynne’s Case, 2 East P. C. 664 (K. B. 1786) (hackney-coachman convicted of larceny for keeping article left in cab).

21. Embezzlement Act 1799, 39 and 40 Geo. III, c. 89; R. v. Bazeley, 2 East P.c. 571 (Cr. Cas. Res. 1799) (acquitting defendant bank clerk who pocketed money given him by customer for deposit in the customer’s account on the grounds that the bank never had “possession” of the money since defendant had put it in his pocket without first putting it in the cash drawer). This statute was part of a broader movement during the eighteenth century in which the expansion of theft law ceased to be a matter primarily for the courts and became instead largely the concern of Parliament. Model Penal Code § 223.1, Comment at 128.

22. LaFave, Criminal Law, at 947; see also Hall, Theft, Law and Society, at 35–40.

23. 7 & 8 Geo. IV, c. 29, § 54 (1827); 3 Will. & M. c. 9, § 4 (1691).

24. LaFave, Criminal Law, at 985.

25. See Gerald H. Gordon, The Criminal Law of Scotland (Edinburgh: W. Green & Son, 2d ed. 1978) 515 (citing Scottish cases).

26. 12 Anne c.7 (1713).

27. 6 & 7 Vict., ch. 96, @ 3 (1843) (repealed).

28. Comment, “Criminal Law—A Study of Statutory Blackmail and Extortion in the Several States,” 44 Michigan L. Rev. 461 (1945).

29. Perkins and Boyce, Criminal Law, at 335.

30. Stephen, History of the Criminal Law of England, vol. 3, at 128; Joel Prentiss Bishop, New Commentaries on the Criminal Law c.X (Chicago: T. H. Flood, 8th ed. 1892).

31. Stephen, History of the Criminal Law of England, vol. 3, at 153. American statutes treated it either as a misdemeanor or as a felony. Perkins and Boyce, Criminal Law, at 351 n.1.

32. Larceny Act 1916 (repealed).

33. Gordon, The Criminal Law of Scotland, at 515 (citing Baron Hume, Commentaries on the Law of Scotland Respecting Crimes).

34. 4 Geo. 4, c. 54. See generally Stephen, History of the Criminal Law of England, vol.3, at 149–150.

35. Reisman, “Possession and the Law of Finders,” at 1132–1133.

36. Hall, Theft, Law and Society, at 56.

37. For a helpful overview, see Alex Steel, “Problematic and Unnecessary? Issues with the Use of the Theft Offence to Protect Intangible Property,” 30 Sydney L. Rev. 575 (2008). See also Sir William Holdsworth, A History of English Law (London: Methuen, 1938), vol. XI, at 530–31.

38. Geraldine Szott Moohr, “Federal Criminal Fraud and the Development of Intangible Property Rights in Information,” 2000 University of Illinois L. Rev. 683, 687; A. T. H. Smith, Property Offences (London: Sweet and Maxwell, 1994), at 45.

39. Blackstone, Commentaries on the Law of England, at *232.

40. Dressler, Understanding Criminal Law, at 601.

41. LaFave, Criminal Law, at 934; Hall, Theft, Law and Society, at 84. 42. Perkins and Boyce, Criminal Law, at 293. 43. See generally Sir John Baker, The Oxford History of the Laws of England (Oxford: Oxford University Press, 2003), vol. VI, at 564–566.

44. Hall, Theft, ...

Table of contents

• Cover
• Title Page
• Copyright
• Dedication
• Contents
• Preface
• Acknowledgments
• Introduction
• ONE Theft Law Adrift
• TWO The Gist of Theft
• THREE Theft as a Crime
• FOUR Property in Theft Law
• Conclusion
• Reference
• Notes
• Index