Owning Bad

Abstract

This chapter examines whether and how malign motives can convert the otherwise innocent exercise of a property right into a civil wrong. As a doctrinal matter, courts have been willing to grant that motives do indeed matter in certain cases. Tracking a distinction drawn within the theory of rights proper between specificationism and generalism, this chapter imagines two ways of making sense of this phenomenon: one might liken property rights to a lattice wherein they are defined permanently at the outset to exclude badly motivated conduct, or one might instead analogize them to a blanket in which holes can be cut around badly motivated acts piecemeal. The chapter opts for the second conceptualization because it meshes better with property’s in rem aspect—they “cover” all cases, one might say—and the organic way property rights evolve. Motives rarely alter property rights, but by factoring in the owner’s incivility as well as victims’ interests and broader social interests, exceptional cases come into focus that illuminate the structure of property rights.