Interview with Law Professor Eduardo M. Peñalver, on Art, Law and Property

This interview took place over email exchanges between December 20, 2005 and January 3, 2006. In this interview, Law Professor Eduardo M. Peñalver talks in part about property law, the legal differences between real and intellectual property, and the relationship of these discourses to art and cultural production.

In trying to ascertain the relationship between law and cultural production, I decided to approach scholars and practitioners who had practical, theoretical, and philosophical experience with the impact of law on art. Although there are many art theorists, art historians, and art practitioners who have a wealth of experience in their respective fields, I have chosen to approach this investigation from the viewpoint of a field traditionally excluded from studies of visual culture, art, and art history. I can only hope that this experiment proves me right. — Sergio Muñoz-Sarmiento


Eduardo M. Peñalver is Associate Professor of Law at Cornell Law School, and in the spring of 2006 was a Visiting Associate Professor of Law at Yale Law School. Professor Peñalver taught at Fordham Law School from 2003-05, and received his B.A. from Cornell University in 1994, an M.A. from Oriel College, University of Oxford in 1996, and Juris Doctor from Yale Law School in 1999. After graduating law school, Professor Peñalver was a law clerk to Hon. Guido Calabresi of the U.S. Court of Appeals for the Second Circuit, and law clerk to Hon. John Paul Stevens of the United States Supreme Court.

Professor Peñalver’s focus is primarily in property, land use, and Catholic social thought. He has published widely in law journals and periodicals, including The Concept of Religion, Yale Law Journal; Is Land Special?, Ecology Law Quarterly; Regulatory Takings, Columbia Law Review; and Property as Entrance, Virginia Law Review. He co-wrote Property Outlaws with Fordham Law Professor Sonia Katyal.

Professor Peñalver may be reached at:


Sergio Muñoz-Sarmiento (SMS): Professor Peñalver, thank you for taking the time from your busy schedule, and during this time of year, to answer some questions regarding property, social relations, art, and culture. Let me begin by asking a general and broad question: What is property, and has this definition/concept changed in the last 100 years?

Eduardo Peñalver (EP): That’s a very tough question, and one that continues to vex property scholars. But I’ll side-step a great deal of complexity by falling back on the standard definition of property that law school students are taught in the first year. Property law is the area of law concerned with the way in which we allocate among people the rights that they enjoy with respect to things in the world. I would point to two big changes in the property area over the past 100 years, though I’m not sure they are really changes in the law. One is the (continuing) decline of property in land as a source of economic power. As our country has moved from an agricultural economy to an industrial economy to an information economy, land ownership’s role as a source of wealth and power has steadily eroded. The second, related, development is the rise of intellectual property.


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