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Civil Wrongs and Justice in Private Law$
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Paul B. Miller and John Oberdiek

Print publication date: 2020

Print ISBN-13: 9780190865269

Published to Oxford Scholarship Online: July 2020

DOI: 10.1093/oso/9780190865269.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 20 June 2021

Owning Bad

Owning Bad

Leverage and Spite in Property Law

(p.415) 19 Owning Bad
Civil Wrongs and Justice in Private Law

Lee Anne Fennell

Oxford University Press

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.

Keywords:   property rights, civil wrongs, motives, badly motivated conduct, badly motivated acts, social interests

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