Berman on the Political Foundations of the Institution of Property

Mitchell Berman (Penn) has posted Abuse of Property Right Without Political Foundations: A Response to Katz (Yale Law Journal Forum) on SSRN.  Here's the 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.