Abuse of Property Right Without Political Foundations: A Response to Katz

Yale Law Journal Forum, Vol. 124, pp. 42, 2014

U of Penn Law School, Public Law Research Paper No. 14-33

15 Pages Posted: 17 Oct 2014

See all articles by Mitchell N. Berman

Mitchell N. Berman

University of Pennsylvania Law School

Date Written: August 13, 2014

Abstract

In an article recently published in the Yale Law Journal, Larissa Katz defends a heterodox principle of abuse of property right pursuant to which an owner abuses her rights with respect to a thing she owns if she makes an otherwise permitted decision about how to use that thing just in order to harm others, either out of spite, or for leverage. Katz grounds that principle in a novel theory of the political foundations of the institution of property ownership. This essay argues that Katz’s political theory is implausible, but that this should not doom her preferred principle of abuse of property right. Further, the essay bolsters Katz’s abuse principle by showing how it, or close analogues, helps resolve both the paradox of blackmail and the puzzle of unconstitutional conditions.

Keywords: property, ownership, principle of abuse of property right, no-intent-to-harm principle, worthwhile-uses-only principle, spite, malice, nuisance, trespass, blackmail, Larissa Katz

Suggested Citation

Berman, Mitchell N., Abuse of Property Right Without Political Foundations: A Response to Katz (August 13, 2014). Yale Law Journal Forum, Vol. 124, pp. 42, 2014; U of Penn Law School, Public Law Research Paper No. 14-33. Available at SSRN: https://ssrn.com/abstract=2510541

Mitchell N. Berman (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

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