Spite and extortion: A jurisdictional principle of abuse of property right

Yale Law Journal

Volumn 122, Issue 6, 2013, Pages 1444-1482

  Katz, Larissa ^a  

^a QUEEN S UNIVERSITY   (Canada)

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EID: 84876399081     PISSN: 00440094     EISSN: None     Source Type: Journal    
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References (198)

1. William Neuman, Rivals Rumble in Dumbo, N.Y. TIMES, Jan. 22, 2006, http://www.nytimes.com/2006/01/22/realestate/22deal.html.
2. This is not to suggest that Boymelgreen was personally deserving of our sympathy. Indeed, Boymelgreen, after he was made aware that he lacked the required easement, continued with his plans to unload the condos on unsuspecting buyers. Walentas alerted the Attorney General to the problem, and Boymelgreen was forced to give buyers the option to abandon the deals. Id. But the moral deserts of the "victim" are quite beside the point, as my analysis will demonstrate. The owner's reasons are what we scrutinize, not the "all-things-considered" deserts of the person harmed.
3. Theo Emery, A Landlord's Revenge Divides the Neighbors, N.Y. TIMES, Mar. 21, 2009, http://www.nytimes.com/2009/03/22/us/22sexshop.html.
4. Few property theorists in the Anglo-American world have put their minds to the matter of abuse of property right in any systematic way. There are some important exceptions. Ernest Weinrib has recently considered how a principle of abuse of property right concerned just with spite might fit within a Kantian idea of property: we cannot claim property rights, on the grounds that this extends our capacity to set and pursue our own ends, just in order to block the purposiveness of others.
5. Ernest J. Weinrib, Private Law and Public Right, 61 U. TORONTO L.J. 191 (2011).
6. Dan Kelly has recently published a paper on the law and economics of leverage cases, in which he argues that there are good economic reasons for curtailing strategic maneuvering.
7. Daniel B. Kelly, Strategic Spillovers, 111 COLUM. L. REV. 1641 (2011).
8. While these are all valuable perspectives on the problems of spite and extortion, they assume a certain normative framework that in my view incompletely accounts for the internal limits of ownership authority. See discussion infra note 101 and accompanying text. For reasons that I articulate in this Essay, I think that it is important to consider abuse of property right specifically in light of the idea of ownership and so apart from its analogues in other areas of the law. Others have written on a general doctrine of abuse of right, notably.
9. Joseph Perillo, Abuse of Rights: A Pervasive Legal Concept, 27 PAC. L.J. 37 (1995).
10. Henry Smith has argued that equity is a general device in private law for curtailing opportunism. He provides a cost-based explanation for why it is left to equity to deal with opportunism case by case. The simple in rem structure of property rights is left intact, on this story, supplemented by equity's in personam approach to curtailing opportunistic behavior.
11. Henry E. Smith, An Economic Analysis of Law Versus Equity (Oct. 22, 2010) (unpublished manuscript), http://www.law.yale.edu/documents/pdf/LEO/HSmith_LawVersusEquity7.pdf.
12. This Essay ventures a new account of abuse of property right that takes a very different view of the moral underpinnings of ownership and its limits: rather than an external and ad hoc reflection of a simple moralist distaste for opportunism (as Smith's account might suggest), there are weighty jurisdictional concerns that limit this kind of abuse, even when the ultimate social goal served by a decision is valuable.
13. RICHARD A. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN 232 (1985) [hereinafter EPSTEIN, TAKINGS].
14. Richard A. Epstein, Rights and "Rights Talk," 105 HARV. L. REV. 1106, 1112 (1992).
15. Reviewing MARY ANN GLENDON, RIGHTS TALK: THE IMPOVERISHMENT OF POLITICAL DISCOURSE (1991)) ("It would be a mistake, however, to assume that all disputes over property rights, even in land, should be resolved by turning to Blackstone's regime of absolute rights.... If the law held that any physical invasion, however trivial, constituted a nuisance that could subject its creator to actions for damages and injunctions, who would prove the winner from so grotesque a scheme? Everyone would violate the rules in question and would be faced by a host of demands for damages or injunctions brought by disgruntled or vengeful neighbors.").
16. Thomas W. Merrill, Property and the Right to Exclude, 77 NEB. L. REV. 730, 753 (1998).
17. Noting that while the right to exclude is integral to the concept of property, it is not necessarily an unqualified right).
18. There are deep disagreements about the conception of ownership that is at work in the law. In the twentieth century, a consensus seemed to take hold that ownership is a bundle of rights.
19. Thomas W. Merrill & Henry E. Smith, What Happened to Property in Law and Economics?, 111 YALE L.J. 357, 357 (2001).
20. Recently, however, there has been a resurgence of exclusion-based accounts of ownership.
21. J.E. PENNER, THE IDEA OF PROPERTY IN LAW 68-104 (1997).
22. Merrill, supra note 6.
23. Henry E. Smith, Property and Property Rules, 79 N.Y.U. L. REV. 1719, 1754-1755 (2004).
24. There are other views. Hanoch Dagan, for instance, has developed a neorealist account of property rights that emphasizes the close relationship between the structure of property rights and the different values these rights promote in different contexts.
25. HANOCH DAGAN, PROPERTY: VALUES AND INSTITUTIONS 3-5 (2011).
26. Bundle-of-rights approaches may simply seek to treat abuses of right as occasions to "balance" the interests of the parties. Exclusion theorists, like Henry Smith, are forced outside of their exclusion framework to ad hoc restrictions on the right to exclude. See supra note 5 (discussing Smith's argument that there is an external source, located in equity, restricting opportunistic behavior more generally); infra note 101 and accompanying text (suggesting that a jurisdictional account of property provides a better explanation).
27. The examples from the case law are drawn from across the Anglo-American world. I could not possibly (and do not aim to) give the reader a jurisdiction-by-jurisdiction overview of the case law. My use of case law is primarily illustrative: I aim to show that a principle of abuse of property right serves an important explanatory role with respect to cases where owners act just to harm others by revealing the internal limits on the idea of ownership in law.
28. See infra notes 28-30.
29. See infra Section I.B.
30. There may be other areas of the law that have worked out clear-cut tortious liability for abuse of rights. I have found no grounds for that conclusion with respect to abuse of property right.
31. For an analysis of the use of damages instead of injunctions to rein in abuse in the context of easements.
32. Lee J. Strang, Damages as the Appropriate Remedy for "Abuse" of an Easement: Moving Toward Consistency, Efficiency, and Fairness in Property Law, 15 GEO. MASON L. REV. 933 (2008).
33. The importance of reasons to private jurisdiction is not entirely foreign to the law. For arguments to the effect that consent is the exercise of authority that is subject to jurisdictional limits.
34. ARTHUR RIPSTEIN, EQUALITY, RESPONSIBILITY, AND THE LAW (1999).
35. Malcolm Thorburn, Justifications, Powers, and Authority, 117 YALE L.J. 1070 (2008).
36. A person cannot give someone the power to hurt her for any reason at all. Rather, she has the power, through consent, to engage in a shared or cooperative enterprise. This explains why it is possible to consent to being tackled in a football game (as part of a cooperative enterprise), but not to have someone do the same thing to you for the wrong reasons (e.g., tackling you just to inflict bodily harm).
37. Ian Urbina, Despite Red Flags About Judges, a Kickback Scheme Flourished, N.Y. TIMES, Mar. 27, 2009, http://www.nytimes.com/2009/03/28/us/28judges.html.
38. Note that these judges have since been tried: one pleaded guilty and the other was convicted.
39. Craig R. McCoy, Ex-Judge Mark A. Ciaverella Jr. Guilty in "Cash for Kids" Case, PHILA. INQUIRER, Feb. 19, 2011, http://articles.philly.com/2011-02-19/news/28611757_1_worst-judicial-scandals-juvenile-law-center-ciavarella.
40. See infra Section I.B, where I distinguish between legitimate and illegitimate leverage and develop the metaphor of ownership as a clearinghouse for ideas.
41. Larissa Katz, Exclusion and Exclusivity in Property Law, 58 U. TORONTO L.J. 275 (2008)
42. Hereinafter Katz, Exclusion] (developing the idea of ownership as an office of agendasetting authority).
43. Larissa Katz, Governing Through Owners: How and Why Formal Private Property Rights Enhance State Power, 160 U. PA. L. REV. 2029 (2012).
44. Hereinafter Katz, Governing] (analyzing this mode of governance). This Essay delves into the normative inquiry, unpacking the political foundations of ownership and connecting them to a broad-ranging principle of abuse of property right. For a good conceptual overview of the idea of offices as they apply to ownership.
45. Chris Essert, The Office of Ownership, 62 U. TORONTO L.J. (forthcoming 2013).
46. Which distinguishes his view from mine on the grounds that his is a purely formal claim about the structure of the right.
47. Private ownership is one strategy for regulating our conduct with respect to our collective resources, but it is not the only one.
48. Larissa Katz, The Regulative Function of Property Rights, 8 ECON J. WATCH 236 (2011).
49. I assume in this Essay that it is a good thing to have private actors making some or most of the decisions about things if only because there are strong empirical arguments for pursuing this strategy over (say) widespread state ownership of things. On the coordination function of ownership, see infra Section II.B. 18. By autonomy, I mean freedom from domination in the sense that Philip Pettit and Kantians like Arthur Ripstein use that term.
50. PHILIP PETTIT, REPUBLICANISM: A THEORY OF FREEDOM AND GOVERNMENT (1997)
51. Developing Republican ideas of nondomination as freedom from the arbitrary exercise of power.
52. ARTHUR RIPSTEIN, FORCE AND FREEDOM: KANT'S LEGAL AND POLITICAL THEORY 33-34, 42-43 (2009).
53. Understanding domination to mean that "[o]ne person is subject to another person's choice".
54. But see infra Subsection I.B.1 (discussing the special power of owners to substitute their judgment for what is worthwhile for the judgment of others-to act, in other words, as a clearinghouse for ideas about the use of the thing).
55. Every legal system prohibits certain uses of things outright, on public policy grounds (e.g., I cannot build a factory on a tract of land that is zoned for residential use). But this is consistent with the wide deference given to an owner to decide for herself what agenda to set from among those that are permitted.
56. There is a large literature in civilian jurisdictions on abus de droit, a general, stand-alone tort, particularly important in the context of contract law. See, e.g., CODE CIVIL [C. CIV.] art. 1382 (Fr.) (declaring that any loss that a person suffers must be repaired by the person whose fault it was that the loss occurred, a limit on CODE CIVIL [C. CIV.] art. 544 (Fr.), which allows for the absolute right to use property rights as one sees fit, provided it is not prohibited by law). For a treatment of French abuse-of-right doctrine.
57. L. CAMPION, DE L'EXERCISE ANTISOCIAL DES DROITS SUBJECTIFS: LA THÉORIE DE L'ABUS DES DROITS (1925).
58. LOUIS JOSSERAND, DE L'ESPRIT DES DROITS ET DE LEUR RELATIVITÉ: THÉORIE DITE DE L'ABUS DES DROITS (1927).
59. ANDRÉ NADEAU & RICHARD NADEAU, TRAITÉ PRATIQUE DE LA RESPONSABILITÉ CIVILE DÉLICTUELLE (1971).
60. John H. Crabb, The French Concept of Abuse of Rights, 6 INTER-AM. L. REV. 1 (1964).
61. D.J. Devine, Some Comparative Aspects of the Doctrine of Abuse of Rights, 1964 ACTA JURIDICA 148.
62. Antonio Gambaro, Abuse of Rights in Civil Law Tradition, in AEQUITAS AND EQUITY: EQUITY IN CIVIL LAW AND MIXED JURISDICTIONS 632 (Alfredo Mordechai Rabello ed., 1997).
63. Frédéric Pollaud-Dulian, Abus de Droit et Droit Moral, 21 RECUEIL DALLOZ SIREY CHRONIQUE 97 (1993).
64. A.N. Yiannopoulos, Civil Liability for Abuse of Right: Something Old, Something New..., 54 LA. L. REV. 1173 (1994).
65. Emmanuelle Lévy, Preuve par Titre du Droit de Propriété Immobilière (Mar. 24, 1896)
66. Unpublished Ph.D. dissertation, Faculté de Droit de Paris) (on file with the Bibliothèque Nationale de France). For a particularly good comparative treatment of civilian abus de droit.
67. MICHAEL TAGGART, PRIVATE PROPERTY AND ABUSE OF RIGHTS IN VICTORIAN ENGLAND: THE STORY OF EDWARD PICKLES AND THE BRADFORD WATER SUPPLY (2002).
68. Taggart provides an excellent history of the famous House of Lords case Mayor of Bradford v. Pickles, [1895] A.C. 587 (H.L.) (appeal taken from Eng.), tracking the reluctance of common law courts to consider reasons or motives at all and comparing this approach with civil law jurisdictions. This Essay will not undertake a comparison of civilian and common law traditions. My aim here is to establish the contours of a principle of abuse of property right that emerges, as I see it, from the idea of ownership in the common law.
69. John Finnis, Intention in Tort Law, in PHILOSOPHICAL FOUNDATIONS OF TORT LAW 229 (David G. Owen ed., 1995).
70. John Murphy, The Merits of Rylands v. Fletcher, 24 O.J.L.S. 643, 658-659 (2004).
71. Lionel Smith, The Motive, Not the Deed, in RATIONALIZING PROPERTY, EQUITY AND TRUSTS: ESSAYS IN HONOUR OF EDWARD BURN 53, 66 (Joshua Getzler ed., 2003).
72. Noting the common law's tendency to shrug off the relevance of motive but arguing that a classification of obligations solely in terms of results in the world is incomplete). In American law, there appears to be less reluctance to accept the significance of motive. The closest thing to a systematic recognition of abuse of right is the prima facie tort doctrine. But that does not explain abuse of ownership right. Oliver Wendell Holmes, who was largely responsible for developing prima facie tort doctrine, takes care to distinguish between the use of a property right, which by public policy we have decided is absolute, from activity that inflicts harm that is justified (or not) by reference to its ends. See Aikens v. Wisconsin, 195 U.S. 194, 204 (1904) ("If this is the correct mode of approach it is obvious that justifications may vary in extent according to the principle of policy upon which they are founded, and that while some, for instance, those affecting the use of land, are absolute, others may depend upon the end for which the act is done." (citation omitted) (citing Pickles, [1895] A.C. 587)). For further discussion of American courts' recognition of motive.
73. J.B. Ames, How Far an Act May Be a Tort Because of the Wrongful Motive of the Actor, 18 HARV. L. REV. 411 (1905).
74. [1895] A.C. 587.
75. For a particularly egregious rejection of the relevance of reasons, see Chapman v. Honig, [1963] 2 Q.B. 502 (Eng.). In that case, a tenant gave evidence under subpoena in a case against his landlord. The next day the landlord presented him with a notice to quit the premises. The landlord admitted in court that he had a vindictive motive. The court cited Pickles for the proposition that motive is irrelevant (with Lord Denning dissenting). Id. At 510; accord Allen v. Flood, [1898] A.C. 1 (H.L.) (appeal taken from Eng.). Some American courts adopted this view of the irrelevance of motive. See Holke v. Herman, 87 Mo. App. 125, 141 (Ct. App. 1901) (collating the leading authorities in support of the general doctrine that a person's motives in making use of her property are immaterial where the act is lawful); Letts v. Kessler, 42 N.E. 765 (Ohio 1896); Metzger v. Hochrein, 83 N.W. 308, 309 (Wis. 1900) (holding that whatever a person "may do lawfully on his own property under any circumstances," he may do regardless of motive).
76. Greenleaf v. Francis, 35 Mass. (18 Pick.) 117, 122 (1836) (holding that the owner of land has an absolute right to appropriate the water underneath it but noting that these rights "should not be exercised from mere malice"); see also Katz v. Walkinshaw, 74 P. 766 (Cal. 1903) (requiring that percolating water be diverted only for some "useful purpose in connection with the land from which it is taken"); Bartlett v. O'Connor, 36 P. 513 (Cal. 1894) (holding the same); 3 HERBERT T. TIFFANY & BASIL JONES, TIFFANY REAL PROPERTY § 747 (2008) (discussing malicious interference). There are a few cases in the United States that took the English approach with respect to percolating water, e.g., Chatfield v. Wilson, 28 Vt. 49 (1855) (holding that correlative rights do take malice into account because the limit of the right is reasonable use, but that there are no correlative rights in percolating as opposed to surface streams).
77. Ames, supra note 22 (giving examples of situations where a person was putting an end to another's tort). The examples Ames discusses include removing an encroaching force, turning a trespassing horse out into the highway where it was lost or stolen, or suing a trespasser "in a spirit of malevolence." Id. at 412-13. But these may also be explained as cases of mixed motive, where the vindication of spite was a desired side effect but not the reason for action. See infra Section I.C.
78. Even the state, with a public mandate that includes responsibility for punishing, regulating the character of a neighborhood, etc., cannot make ownership decisions that are themselves calculated just to cause harm to others. A state has the public authority to build prisons, for instance. But it seems to me that a state would abuse its right were it to build prisons not because it genuinely wants prisons but just out of spite or (say) to put pressure on local politicians to achieve some ulterior purpose.
79. Panton v. Holland, 17 Johns. 92 (N.Y. Sup. Ct. 1819) (holding that malice might render an otherwise lawful act-digging up soil that supported the foundation of a contiguous house-actionable, but finding that malice was not proved under these circumstances).
80. Dumont v. Kellogg, 29 Mich. 420, 423-24 (1874) ("It is a fair participation and a reasonable use by each that the law seeks to protect."); see also RESTATEMENT (SECOND) OF TORTS § 833 (1979) (stating that nuisance rules are applicable to surface water invasions); id. § 826 (assessing liability by asking whether the gravity of the harm caused by the invasion exceeds the utility of the activity causing the invasion).
81. Hornsby v. Smith, 13 S.E.2d 20 (Ga. 1941); Burke v. Smith, 37 N.W. 838, 838 (Mich. 1888) (holding that a fence erected maliciously and with no other purpose than "to shut out light and air" is a nuisance); Ibottson v. Peat, (1865) 159 Eng. Rep. 684 (Ex.); Hollywood Silver Fox Farm v. Emmett, [1936] 2 K.B. 468 (Eng.); Christie v. Davey, [1893] 1 Ch. 316 (Eng.).
82. See, e.g., EPSTEIN, TAKINGS, supra note 6, at 232 (noting that the prohibition on suing for low-level interferences (the "live and let live rule") does not protect malicious interferences).
83. And, indeed, the abuse-of-right doctrine in civilian jurisdictions has sometimes been interpreted in a way that looks quite like the prima facie tort doctrine.
84. Paul A. Crépeau, Abuse of Rights in the Civil Law of Quebec, in AEQUITAS AND EQUITY: EQUITY IN CIVIL LAW AND MIXED JURISDICTIONS, supra note 21, at 583, 631.
85. "The doctrine of abuse of rights serves to ensure that, in the promotion of personal interests, rights are not exercised in a manner which unjustifiably deprives others of the enjoyment of their own rights.".
86. Note, The Prima Facie Torts Doctrine, 52 COLUM. L. REV. 503, 503 (1952).
87. ("In its emphasis on liability stemming from principle rather than precedent, the doctrine reflected an attitude which had long been incorporated in the civil law."). This assumes the correlativity of rights, as is also the case in Scottish Law's aemulatio vicini. More v. Boyle, (1966) 1967 S.L.T. 38 (Sh. Ct.) (Scot.) (confirming that the doctrine of aemulatio vicini is a part of Scots law).
88. Elspeth Reid, Abuse of Rights in Scots Law, 2 EDIN. L.R. 129, 153 (1998).
89. (arguing that while aemulatio vicini exists in Scottish law, Scottish courts have been heavily influenced by the English rule laid down in Mayor of Bradford v. Pickles, [1895] A.C. 587 (H.L.) (appeal taken from Eng.), and have largely ignored the doctrine); id. at 155 (arguing that the doctrine is largely unavailable outside the domain of "neighborhood relations").
90. Elspeth Reid, The Doctrine of Abuse of Rights: Perspective from a Mixed Jurisdiction, 8.3 ELECTRONIC J. COMP. L. (2004), http://www.ejcl.org/83/art83-2.html.
91. ("The doctrine... encompasses the general principle that no one should exercise what is otherwise a legitimate right in a way which is solely motivated by the desire to cause annoyance to his or her neighbour.").
92. The prima facie tort doctrine is not usually applied to the exercise of property rights in any case. See supra note 22.
93. This jurisdictional approach avoids the paradox often associated with the idea of abuse of right. On the debate over whether rights can be abused, see, for example.
94. Frederick Schauer, Can Rights Be Abused?, 31 PHIL. Q. 225 (1981).
95. See also Hornsby v. Smith, 13 S.E.2d at 23 ("No court could correctly hold that the law would prevent an individual from doing the identical thing that the law authorizes him to do."); 2 MARCEL PLANIOL & GEORGE RIPERT, TRAITÉ ÉLÉMENTAIRE DE DROIT CIVIL 298 (10th ed. 1926) (suggesting that a right leaves off where abuse begins: either the act is in excess of the right or it is legitimate-it cannot be legitimate and yet abused).
96. 415 N.E.2d 20 (Ill. App. Ct. 1980); see also Pickering v. Rudd, (1815) 171 Eng. Rep. 70 (K.B.) (Eng.) (refusing to treat a permanent encroachment of a nail and board into the airspace above the plaintiff's garden as trespass, in the absence of any interference with the plaintiff's ordinary use).
97. Geller, 415 N.E.2d at 22.
98. A whole genre of spite cases involve the spite fence. See, e.g., Woolley v. Baier, No. 224168, 2002 WL 265902, at *2 (Mich. Ct. App. Feb. 19, 2002) (explaining that the "purported benefit or advantage to themselves" does not immunize defendants from an injunction where the motive is spite); see also Flaherty v. Moran, 45 N.W. 381 (Mich. 1890) (holdin gthat a spite fence erected purely for malice is a nuisance); Burke v. Smith, 37 N.W. 838 (Mich. 1888) (same). In many jurisdictions there is regulation limiting the erection of spite fences. See, e.g., CAL. CIV. CODE § 841.4 (West 2012); IND. CODE ANN. § 32-26-10-1 (2012); MINN. STAT. ANN. § 561.02 (2011); N.Y. REAL PROP. ACTS. LAW § 843 (McKinney 2012); 53 PA. CONS. STAT. § 15171 (2012). See generally Wilson v. Handley, 119 Cal. Rptr. 2d 263, 267-68 (Ct. App. 2002) (briefly discussing the history of spite-fence laws).
99. [1994] 1 W.L.R. 269 (C.A.) (Eng.).
100. The judge of first instance stated, in denying the injunction: "I find that the reason which weighs with Mrs. Jaggard is that Mr. Sawyer should not be permitted to behave as she thinks that he has," rather than any reason to do with the defendant's use of the lanew ay. Id. at 275; accord RESTATEMENT (SECOND) OF TORTS § 941 cmts. a, c (1979) (noting that courts will consider the parties' motives and the potential for extortion in deciding whether to grant an injunction).
101. [1994] 1 W.L.R. at 288. An interlocutory injunction, sought before the house was built, would not have had the same punitive effect. Had the plaintiff sought such an injunction earlier, she might have prevailed.
102. The court noted that, while it could not grant the defendant an easement over the private road, its award of damages calculated to match the costs of such a right of way would rule out future actions for continuing trespass. A plaintiff "could not complain of thatfor which he had already been compensated." Id. at 280-81. thinks that he has," rather than any reason to do with the defendant's use of the laneway. Id. at 275; accord RESTATEMENT (SECOND) OF TORTS § 941 cmts. a, c (1979) (noting that courts will consider the parties' motives and the potential for extortion in deciding whether to grant an injunction).
103. [1994] 1 W.L.R. at 288. An interlocutory injunction, sought before the house was built, would not have had the same punitive effect. Had the plaintiff sought such an injunction earlier, she might have prevailed.
104. The court noted that, while it could not grant the defendant an easement over the private road, its award of damages calculated to match the costs of such a right of way would rule out future actions for continuing trespass. A plaintiff "could not complain of that for which he had already been compensated.".
105. [1895] A.C. 587 (H.L.) 600-01 (appeal taken from Eng.).
106. Shaheen Borna & James Lowry, Gambling and Speculation, 6 J. BUS. ETHICS 219, 222 (1987).
107. Arguing that "speculative actions can lead to price destabilization with a negative influence on economic stability"); id. at 223 (likening speculation to gambling, and surveying authors who maintain that gambling is immoral.
108. Richard T. Ely, Land Speculation, 2 J. FARM ECON. 121 (1920).
109. providing a limited defense of speculation to promote orderly growth and development). For discussion of the deadweight loss of gift giving.
110. Joel Waldfogel, The Deadweight Loss of Christmas, 83 AM. ECON. REV. 1328 (1993).
111. Estimating that holiday gift giving leads to a deadweight loss that is as large as one-tenth that of income taxation.
112. Delegation is another matter altogether. Thus, states or provinces delegate decisionmaking authority to municipalities, with the result that municipalities come up with answers that the state legislature might disapprove of. And owners of course may delegate some decisions to lessees, bailees, etc. My concern here is substitution of judgment, not the delegation of authority.
113. However, this has not always been the case, and indeed many societies have held certain kinds of people to be unworthy of occupying the office of owner, e.g., women, noncitizens, etc.
114. Cf. infra Section II.C (explaining why we do not have a more restrictive principle of abuse of right that requires us actually to track the interests of others rather than simply to do what we genuinely think is worthwhile).
115. [1936] 2 K.B. 468 (Eng.).
116. [1893] 1 Ch. 316 (Eng.).
117. For example, the court found that the noise the Christies inflicted on Davey during the day was perfectly reasonable, notwithstanding its effects on Davey's work. See id. at 327-28. The defendant in this case, like the plaintiff in Rogers v. Elliott, 15 N.E. 768 (Mass. 1888), had a particular sensitivity to noise that was not taken into account when determining what his neighbor could reasonably inflict.
118. Smith, supra note 7, at 1785-1790.
119. Summarizing the literature on the inefficiency of other means of self-help.
120. Henry E. Smith, Self-Help and the Nature of Property, 1 J.L. ECON. & POL'Y 69 (2005)
121. Ibottson v. Peat, (1865) 159 Eng. Rep. 684 (Ex.).
122. ("[T]he defendant, by his plea, says, 'You have done me some wrong and I have been endeavoring to redress that wrong by doing some wrong to you.' As a general proposition it may be laid down, that cannot be done.").
123. The court disagreed with Peat (and his employer, the duke) that the plaintiff had committed a wrong in luring the grouse. In so finding, the court distinguished Keeble v. Hickeringill, (1707) 88 Eng. Rep. 1127 (Q.B.): the plaintiff in Ibottson was not acting out of spite but genuinely in order to attract and hunt the grouse himself. In so doing he committed no wrong.
124. There are, amazingly, no American cases, at least none that I was able to find, that deal with the special problems of nuisance or trespass posed by overhanging cranes. The nearest thing appears to be scaffolding cases. See, e.g., Slotoroff v. Nassau Assocs., 428 A.2d 956 (N.J. Super. Ct. Ch. Div. 1980) (refusing to grant an injunction where the scaffolding over the plaintiff's property was (1) temporary and (2) not interfering with a present use).
125. Lewvest, Ltd. v. Scotia Towers, Ltd. (1981), 126 D.L.R. 3d 239 (Can. Nfld. S.C. (Trial Div.)).
126. The famous American cave cases, Edwards v. Sims, 24 S.W.2d 619 (Ky. 1929), and Edwards v. Lee's Administrator, 96 S.W.2d 1028 (Ky. 1936), illustrate a similar power to extort but just with respect to subsurface rights. In these cases, Lee sought to enjoin Edwards from bringing tours through the portion of the cave that (he thought) lay beneath the surface of his land. Although Lee's reason for seeking the injunction was clearly just to put pressure on Edwards to share the profits from operating the tours, Lee won on the grounds that even a harmless trespass is a trespass.
127. Lewvest, 126 D.L.R. 3d at 241.
128. ("[A] a person is entitled to protect his property rights even though his motives in doing so may have other goals.").
129. [1970] 1 W.L.R. 411 (Eng.); see also Messina v. Arena Devs., Ltd., [1985] B.C.W.L.D. 3851 (Can. B.C. Sup. Ct.) (awarding exemplary damages because the plaintiff had a right to refuse access to their property, but limiting the amount to avoid rewarding the plaintiff's unreasonable attempts at leverage); Kingsbridge Dev., Inc. v. Hanson Needler Corp. (1990), 71 O.R. 2d 636 (Can. Ont. H.C.J.) (denying an injunction because the defendant's use of the plaintiff's airspace was a nuisance, rather than a trespass, and damages were an adequate remedy). Note that not all crane cases involve the use of air rights just to gain leverage. See, e.g., Anchor Brewhouse Devs., Ltd. v. Berkeley House (Docklands) Devs., Ltd., (1987) 2 E.G.L.R. 173 (Ch. Div.) (U.K.) (granting an injunction to prohibit the defendant's trespass). The overhanging crane in that case interfered with the plaintiff's actual agenda-its plans to redevelop its land.
130. The court also said that the construction project caused congestion in the street, which annoyed the owner of the factory. Woollerton, [1970] 1 W.L.R. at 412-13.
131. Cf. Kelsen v. Imperial Tobacco Co., [1957] 2 Q.B. 334, 343-47 (Eng.) (finding trespass where the plaintiff could have rented the airspace out to someone else had the defendant not been trespassing).
132. Woollerton, [1970] 1 W.L.R. at 416 (noting that the defendant "got [itself] into the position of being... held up to ransom").
133. RESTATEMENT (SECOND) OF TORTS § 941 cmt. c (1979) (discussing reasons to deny an injunction, including that it "might make the court a party to extortion"); see also Kratze v. Indep. Order of Oddfellows, Garden City Lodge No. 11, 500 N.W.2d 115, 120 (Mich. 1993) (discussing two considerations in awarding an injunction for encroachment: "[a]n interest in avoiding judicial approval of private eminent domain by the encroacher, and an interest in preventing extortion by the encroachee, who may use the injunction to 'compromise' the claim"); Didow v. Alberta Power, Ltd. (1987), 45 Alta. L.R. 2d 116 (Can. Alta. Q.B.); Kingsbridge, [1990] 72 O.R. 2d at 159.
134. Ely, supra note 45.
135. (arguing that speculators provide some value when they hold property for a future more valuable use).
136. See, e.g., Kuzniak v. Kozminksi, 65 N.W. 275, 276 (Mich. 1895) (holding that a building erected "for a useful purpose" was not a nuisance, despite "some malice displayed in putting it so near the complainant's house"); see also Beardsley v. Kilmer 140 N.E. 203, 205 (N.Y. 1923) ("[W]hen... there were also legitimate purposes the rule seems to be perfectly well established that there is no liability.").
137. Peter Cane, Mens Rea in Tort Law, 20 O.J.L.S. 533, 539 (2000).
138. ("[T]ort law uses the concept of 'predominant motive' to measure, in a vague way, the relative strengths of mixed motives."). For treatment of an analogous problem.
139. John Gardner, Justification Under Authority, 23 CAN. J.L. & JURISPRUDENCE 71 (2010).
140. Which discusses mixed motives for consented-to action.
141. Finnis, supra note 22, at 236.
142. 35 Mass. (18 Pick.) 117 (1836).
143. Thanks to Henry Smith for pressing me to discuss this issue further.
144. This is similar to the French approach in which a right is not abused where the dominant purpose is a legitimate one. See 1 HENRI MAZEAUD, LÉON MAZEAUD & ANDRÉ TUNC, TRAITÉ THÉORIQUE ET PRATIQUE DE LA RESPONSABILITÉ CIVILE DÉLICTUELLE ET CONTRACTUELLE 635 (5th ed. 1957).
145. 65 N.W. 275 (Mich. 1895).
146. H.C. Gutteridge, Abuse of Rights, 5 CAMBRIDGE L.J. 22, 25-27 (1933).
147. Discussing the evidentiary problems inherent in interrogating litigants' motives, on either subjective or objective standards.
148. Abuse of property right often comes to light because of public declarations by owners or a public course of dealing, as in the Geller case, that unambiguously points to a direct intent to harm. See Brownstone Condo. Ass'n v. Geller, 415 N.E.2d 20, 21 (Ill. App. Ct. 1980).
149. I have previously begun developing this conceptual and functional account of the nature and structure of ownership as an office of agenda-setting authority. See Katz, Exclusion, supra note 16 (arguing that ownership takes the form of an exclusive office dedicated to the task of agenda setting); Katz, Governing, supra note 16 (showing how and why states commandeer the office of ownership for the purposes of government). This Essay discusses the political foundations of ownership from a normative perspective, offering a principle to explain abuse-of-right cases.
150. Recall here the possibility of substituting someone else's judgment of what is worthwhile for one's own. See supra Subsection I.B.1.
151. State-of-nature models are useful devices for understanding the difference that a state-or civil society-makes to the kinds of claims we can legitimately make vis-à-vis one another. Thus, a state-of-nature story illustrates not just the limits of the state's authority but also the limits of what we can do without civil society. See, e.g., RIPSTEIN, supra note 18, at 87; cf.
152. James Penner, Ownership, Co-Ownership, and the Justification of Property Rights, in PROPERTIES OF LAW: ESSAYS IN HONOUR OF JIM HARRIS 166, 171 (Timothy Endicott et al. eds., 2006).
153. ("The general point of state-of-nature models is to determine those rights which individuals bring with them when they enter civil society, rights which therefore cannot be stripped of individuals by the social contract... [without] their own fully-informed consent.").
154. JOHN LOCKE, The Second Treatise of Government § 27, in TWO TREATISES OF GOVERNMENT 265, 288 (Peter Laslett ed., Cambridge Univ. Press 2008) (1690).
155. ("For this Labour being the unquestionable Property of the Labourer, no Man but he can have a right to what that is once joyned to, at least where there is enough, and as good left in common for others.").
156. This view is captured in the idea of "positive community" that some have associated with a Grotian take on the state of nature.
157. RICHARD SCHLATTER, PRIVATE PROPERTY: THE HISTORY OF AN IDEA 126-31, 145-150 (1951).
158. John Salter, Hugo Grotius: Property and Consent, 29 POL. THEORY 537 (2001).
159. J.W. HARRIS, PROPERTY AND JUSTICE 184 (1996).
160. Which suggests that natural equality does not commit one to the view that anyone owns any particular resource but, rather, that everyone has an equal natural right to everything.
161. On my view of the state of nature, people have only their autonomous faculties of moral (practical) reasoning. We would undermine the point of looking to state-of-nature models if we imported institutional structures into them.
162. 26 F. Cas. 360 (C.C.E.D. Pa. 1842) (No. 15,383).
163. In fact, two threads emerge in the court's discussion of the defense of necessity claimed by Holmes. The first is that the preexisting relations that govern the conduct of seamen toward passengers do not dissolve in the case of emergency. Seamen continue to have an obligation to put the lives of passengers first, which in effect amounts to saying that they were not in a state of nature. Id. at 363. The second thread of the discussion is more relevant to my account.
164. For another approach rejecting the idea of a prepolitical liberty.
165. LIAM MURPHY & THOMAS NAGEL, THE MYTH OF OWNERSHIP: TAXES AND JUSTICE 8 (2002).
166. They suggest that owners have no entitlement that preexists the state. As a result, the state's attention to societal needs is not a constraint on liberty but rather just an articulation of the proper, limited scope of these rights. This stands in strong contrast to the Lockean view that though we may run into organizational problems in a state of nature, we have the basic tools to construct a full-fledged property system without the state. See LOCKE, supra note 87, §§ 6-13, at 270-76; see also supra discussion accompanying note 87 (noting that there is no obstacle in a Lockean state of nature other than actual conditions of scarcity, where the Lockean proviso does not obtain).
167. At least in its conclusions, my account has something in common with Kantian accounts. Kantians, too, insist that property rights are not fully enforceable in a state of nature because of problems about standing or unilaterality. See RIPSTEIN, supra note 18, for a full exposition of Kant's arguments about private and public right.
168. Larissa Katz, Ownership and Social Solidarity: A Kantian Alternative, 17 LEGAL THEORY 119 (2011).
169. Whereas I have argued here that there is a moral duty to forbear from making decisions about our collective resources in a state of nature, Kantians recognize no such moral quandary. On the contrary, the imperative of rightful honor requires us to avoid putting ourselves in the position of being means to another's end. Where others are not bound to respect our interests, we can have no moral duty of forbearance ourselves. The differences between Kantian accounts and my own are in fact much deeper than this. The most crucial difference concerns the role of the state: while I see the state as helping us to overcome a moral problem we confront in a state of nature, Kantians see the state as constitutive of freedom.
170. JOSEPH RAZ, THE MORALITY OF FREEDOM 210-213 (1986).
171. Discussing intrinsic duties in the context of friendship.
172. PENNER, supra note 7, at 55
173. Describing a duty we owe ourselves to live ethically.
174. RAZ, supra note 95, at 313-320.
175. Discussing the convergence of acting morally and acting to further one's well-being.
176. JOSEPH RAZ, ETHICS IN THE PUBLIC DOMAIN: ESSAYS IN THE MORALITY OF LAW AND POLITICS 40 (1995).
177. Raz discusses the duty we owe to ourselves to honor the conditions for self-respect. This duty, even if not other-regarding, is nonetheless an exclusionary reason for action. See also RIPSTEIN, supra note 18, at 18, 161 (describing Kant's notion of an "internal duty" of "rightful honor," an obligation to "assert[] one's worth as a human being in relation to others").
178. Joseph Raz, Liberalism, Skepticism, and Democracy, 74 IOWA L. REV. 761, 762 (1989).
179. Even if one could establish that one has the morally weightiest interest, this would at best establish what Harris calls "mere property," and not "full-blooded ownership," HARRIS, supra note 88, at 28-29, as a strong personal interest in a thing would not necessarily justify a power to transmit it to another.
180. There is a lot of controversy about when and if the state is in a better position than individuals to direct the use of resources. Owners may well be experts about the asset itself and its potential uses. Many assume that they have relatively greater ability in this regard than officials. See, e.g., Smith, supra note 7, at 1754 ("Plausible and widely accepted assumptions about the relative abilities of owners, takers, and officials to generate information about assets-and, as I emphasize, assign them to actuarial classes-provide a clear rationale for protecting owners with property rules."). But this is not to say that individuals are in the best position to generate and act on information about our collective interests. See also infra note 106 and accompanying text (discussing epistemic obstacles that individuals face in making distributively just decisions).
181. Jeremy Waldron, Kant's Theory of the State, in TOWARD PERPETUAL PEACE AND OTHER WRITINGS ON POLITICS, PEACE, AND HISTORY 179, 188-194 (Pauline Kleingeld ed., David L. Colclasure trans., 2006).
182. On Kant's view, most of the "moral difference" that a state makes is to tell us when we subordinate our own opinions to the state's decisions: we put aside the outcomes of our practical reasoning. Ownership achieves just the opposite. Ownership releases us to act on our opinions about what is a worthwhile use of resources, in light of our interests.
183. This distinguishes my account from the utilitarian view of Dan Kelly or the equity-based view of Henry Smith about why sometimes we refuse to tolerate antisocial behavior by owners. See Kelly, supra note 5; Smith, supra note 5 (arguing that equity is a targeted moralistic device that operates in personam to constrain opportunistic behavior).
184. While some restrictions on the distributive effects of ownership decisions may be necessary for justice, it is well beyond the scope of this Essay to consider the threshold condition that a just system of property must meet. This would entail some kind of an overall evaluation of the property system as a whole and its place in our larger "justice agenda." See HARRIS, supra note 88, at 368 (arguing that a just system of property is only part of the "justice agenda" of a society).
185. Gregory S. Alexander, The Social-Obligation Norm in American Property Law, 94 CORNELL L. REV. 745 (2009).
186. Eduardo M. Peñalver, Land Virtues, 94 CORNELL L. REV. 821 (2009).
187. JOSSERAND, supra note 21.
188. Of course, one might say, if individuals are so limited in their capacity to attend to the interests of others, we might do well to avoid charging them with making decisions about our common resources and to look instead to public officials or the state to do the morally strenuous work of making decisions about things that track the interests of everyone. To be sure, this is one possible response. But we live in a time when problems of state ownership and overall benefits of private ownership are so widely acknowledged that I need spend very little time here considering the merits of this position in principle.
189. ROBERT NOZICK, ANARCHY, STATE AND UTOPIA 158 (1974).
190. Discussing Hayek's view that we can never know enough to distribute to each according to his moral merits and questioning whether justice would require us to do so if we did have that knowledge.
191. F.A. HAYEK, THE CONSTITUTION OF LIBERTY 97 (1960).
192. Noting that a society in which distributive shares were proportioned according to merit "would... be the exact opposite of a free society. It would be a society... in which the individual was... relieved of the responsibility and the risk of decision. But if nobody's knowledge is sufficient to guide all human action, there is also no human being who is competent to reward all efforts according to merit.".
193. The law protects owners in their ability to make bets on the future value of their assets, in light of their special information and their own interests, while leaving responsibility for public welfare in public hands. See Smith, supra note 7, at 1754 (arguing that the advantages of property owners in gathering information about their assets provides strong reasons to protect owners with property rules). Something like a principle of abuse of property right follows from this: a system of property cannot be expected to have this wealth-maximizing effect if owners do not make the kinds of choices that have been delegated to them-if they do not set out to choose what they think, from their special vantage point, is a worthwhile use in light of their own interests.
194. JEREMY WALDRON, THE RIGHT TO PRIVATE PROPERTY 295 (1988).
195. ("[S]uch complete answerability would be morally exhausting and individually debilitating.").
196. Henry E. Smith, Exclusion Versus Governance: Two Strategies for Delineating Property Rights, 31 J. LEGAL STUD. 453, 468 (2002).
197. Arguing that in a transaction-cost-free world, we might indeed have a system of "governance rules" in which all uses of a thing could be defined and distributed ex ante, but that the costs of doing so in the real world would be prohibitively high.
198. Jeremy Waldron, Kant's Legal Positivism, 109 HARV. L. REV. 1535, 1540 (1996).