Spite and Extortion: A Jurisdictional Principle of Abuse of Property Right
122 Yale L.J. 1444 (2013).
This Essay puts forward the conceptual and normative underpinnings of a principle of abuse of property right. Owners abuse their right, I argue, when their decisions about a thing are designed just to produce harm. This is so whether that harm is an end in itself (spite) or a means to achieving some ulterior and possibly even valuable end (extortion). Theorists have tried to explain those limits concerned with spite in terms of maximizing utility or enforcing virtue. But these theories posit significant external limits on owners’ freedom and still do not explain those limits concerned with extortion.
I argue that ownership’s political foundations account for its internal limits. Ownership confers the authority to answer what I call the Basic Question—what constitutes a worthwhile use of a thing. This authority is required to overcome twin problems of standing and coordination in a state of nature. We all have an interest in coordinating our uses of things (to avoid waste and conflict), but each of us faces a moral duty to forbear from imposing his answer to the Basic Question on others. A system of private property overcomes this dilemma, but its political foundations also give rise to constraints of legitimacy. Owners are charged with making decisions about things, but this authority does not extend to using a resource to gratify spite or gain leverage for some further end. These are not answers to the Basic Question, but rather efforts to use the position of ownership just in order to dominate others. When owners exceed their authority in this way, they abuse their right.