ESSAY CONTENTS INTRODUCTION I. ABUSE OF RIGHT IN PROPERTY LAW A. Animus B. Leverage 1. Legitimate Leverage 2. Illegitimate Leverage C. Mixed Motives II. THE POLITICAL FOUNDATIONS OF OWNERSHIP AND ITS LIMITS A. A Problem About Standing B. The Proper Role of Coordination C. Principled and Pragmatic Constraints CONCLUSION INTRODUCTION
Consider the following two stories. Boymelgreen, a developer in Brooklyn, converted a seven-story building into condominiums with windows on the property line overlooking a parking lot. (1) After he finished the building, he realized that he did not have an easement for air and light over the neighboring land, which he needed in order to ensure that the units conformed to city rules. Walentas, the owner of the parking lot and a rival developer in Brooklyn, was willing to grant the easement-but only if Boymelgreen would agree to sell him a (third) lot elsewhere in Brooklyn. Boymelgreen refused. Walentas then drew up plans and obtained a building permit for a sculpture that he described to the New York Times thus: "It's steel columns in front of the windows with plates strategically placed where the windows are, just as a little negotiation. ... It frankly was designed to block those windows. ... So we torture him a little bit." (2) Walentas's decision to place a steel structure in front of his neighbor's windows was made with a direct intent to harm, where harm was not only foreseen but was indeed the desired outcome of the decision. (3) His plan was designed to create leverage to extract a benefit from Boymelgreen- the sale of the other Brooklyn lot.
Now consider a second story. Zarlenga is the owner of a heritage building in Old Town Alexandria, Virginia, known for its upscale businesses and restaurants and its historic sites. City planners rejected Zarlenga's proposal to renovate the building to accommodate his expanding hunting and fishing business. Frustrated, Zarlenga deliberately "sought a tenant that would be a poke in the eye for Alexandria," initially approaching fast food chains and ultimately leasing the building to a sex shop. (4) Zarlenga both foresaw and desired to harm the city of Alexandria as an end in itself. The reason for Zarlenga's choice of tenant was to cause harm in order to gratify spite.
Many of us are likely to find Walentas's and Zarlenga's actions troubling. Neither owner was setting an agenda for the property that he genuinely thought was worthwhile in itself. Their decisions-the choice of sculpture and the choice of tenant--were clearly designed just to cause harm. But as troubling as this sort of behavior might be, property theorists have surprisingly little to say about it. (5) Those who concede that an owner's reasons sometimes matter in property law offer only the barest of concessions: in correlative rights cases (e.g., concerning the rights of riparians or neighbors), they acknowledge that courts may sometimes refuse to protect an owner who acts purely out of spite or may even treat her actions as a nuisance. (6) They are unwilling to go any further because they are committed to an idea of ownership that fits poorly with the regulation of an owner's reasons. (7) While the law might prohibit certain uses of property, the story goes, it has no business scrutinizing an owner's reasons for choosing among otherwise permitted uses.
But the law does sometimes care about owners' reasons for deciding, and this fact, I argue, provides a crucial insight into the nature of ownership and its political foundations. (8) This Essay aims to show that a principle of abuse of right is a crucial component of the idea of ownership, providing a powerful rationale for a set of otherwise puzzling cases in Anglo-American property law. Some but not all of these cases are concerned with the correlative rights of neighbors. (9) And some but not all are concerned with animus, or decisions made just to gratify spite. A small but revealing subset of these cases concern decisions about things that are designed just to cause harm in order to gain leverage over others. (10) In leverage cases, the decision is made just for the reason that it will produce harm. Harm is desirable in leverage cases not as an end in itself, but as a means of achieving something else that the owner does value (e.g., greater wealth, the punishment of a wrongdoer, control over the character of a neighborhood). What spite and leverage cases have in common is that the owners do not just foresee that harm may result from their decisions; they actually set out to achieve this harm through the office of ownership. In these cases, the value to the owner of an abusive decision is indirect, derived just from the harm it will cause to another. None of these property law cases go so far as to establish a freestanding tort of abuse of right (familiar to us from civilian systems). (11) What we see instead is a role for a principle of abuse of property right that makes sense of a range of judicial responses to spiteful or extortionate uses of ownership. This single principle can illuminate remedial tinkering (e.g., substituting damages for injunctions), (12) denying the right to exclude, and even treating the abusive behavior as itself a nuisance.
The kind of jurisdictional limits on reasons that I propose here is more familiar to us in the context of public offices. (13) We readily recognize that a judge abuses her authority when she chooses a sentence within the sentencing guidelines but for the wrong reasons (e.g., to generate kickbacks from a juvenile detention center rather than for reasons relating to the accused or the crime). (14) The reasons that she has relied on in making her decision--the kickbacks she will receive for each child sent to a detention center--make it impossible to characterize her decision as an answer to the question that she has been entrusted to answer. There is a related (although not identical) structure to a principle of abuse of property right in the context of the office of ownership. (15) Ownership, I argue, is an office dedicated to a specific task--setting the agenda for a thing. (16) Owners have the standing to resolve what I will call the Basic Question: what (in their view) constitutes a worthwhile use of a thing. A principle of abuse of property right simply marks the limits of that jurisdiction.
But why should this be the nature of the jurisdiction that owners are given? Why should an owner not be free to make decisions about things just in order to harm others if that helps her to accomplish her broader life goals? The reason, I argue, lies in the political foundations of the office of ownership itself. On the one hand, it is in everyone's interest that someone determine the agenda for each thing. Having someone in charge of a thing is one way to solve the problem of coordinating our uses of our collective resources in the face of genuine and good faith disagreement about what those uses should be. (17) On the other hand, however, granting the authority to determine the agenda for things to others raises an important autonomy worry. (18) When someone is granted ownership authority to determine the agenda for her property, she is then in a position to make decisions that bind us all. The thing was available to us all until it was privately appropriated, but now we are constrained by the owner's decisions with respect to that thing. This points to a problem about standing: What entitles a private actor to make those decisions, no matter how expertly or altruistically, for the rest of us? Claims of ownership are thus claims of authority to perform precisely this task in the name of all.
Because owners' authority to set the agenda for things always threatens the autonomy of others in this way, we should constrain owners' jurisdiction to no more than is necessary to solve our coordination problem. If we allow owners to set agendas that they themselves do not take to be worthwhile for the thing, just in order to harm others, authority that was conferred only to solve the coordination problem is now being exercised for reasons that go beyond their charge. (19) We limit the extent to which we subject ourselves to others' decisions through a principle of abuse of right.
For both pragmatic and principled reasons, the law takes a coarse-grained approach to regulating owners' decisions. We defer to an owner's judgment of what constitutes a valuable agenda for a thing. (20) But an owner necessarily exceeds her jurisdiction when she makes an otherwise permitted decision about a thing just for the reason that it will harm others. She has in that case used her power qua owner not to determine a worthwhile use of the thing but to address some other question: how she might use her position just in order to harm someone else, out of spite or to gain leverage. When an owner's decision about her thing is designed just to cause harm to another-whether as an end in itself or even as a means to some further valuable end-she abuses her right. (21)
This Essay is in two parts. In Part I, I argue that a principle of abuse of property right makes sense of a set of cases that might otherwise be treated as marginal in the law of property. I argue that despite a few clear statements in the law to the contrary, there is significant evidence in the case law that owners' reasons do matter in the common law tradition. A principle of abuse of property right is not limited to correlative rights cases, where the owner and victim are asserting reciprocal rights. This principle also applies, for instance, where an owner claims a right to exclude outsiders or to contain a benefit that otherwise would flow to an outsider. It constrains owners' authority both where harm is an end in itself, in spite cases, and where the harm constitutes a form of leverage. In this Part, I also distinguish between legitimate leverage, where an owner acts as a clearinghouse for ideas by legitimately substituting...