Lee Anne Fennell (University of Chicago Law School) has posted Thwartings (68 Boston College Law Review, forthcoming 2027) on SSRN. Here is the abstract:
Property law routinely manages conflicts that arise when owners with earnest but incompatible goals exercise property prerogatives like exclusion, disposition, use, and acquisition. But what if a party exercises one of these rights for the express purpose of disrupting another party’s plans? This piece examines such intentional frustrations—“thwartings”—in both public and private law contexts. Recent litigation has spotlighted the possibility that governments could use eminent domain to maliciously target disfavored uses or users. These cases raise takings-specific questions, but they also connect to larger property theory puzzles about the interaction between motives and the incidents of ownership, and how authority over resources should be cabined. Because the power to thwart is a baked-in attribute of both property and sovereignty, an act’s oppositional nature is a poor proxy for its invalidity. Many thwartings lie too near the core of discretionary authority to be excised or, conversely, signal the need for larger reforms based on harmful effects. For categories of thwartings for which intent should carry decisive weight, motive-sensitive constraints such as antidiscrimination law, equal protection, and due process are better suited to the task than broad-gauge property doctrines or constraints unique to takings jurisprudence.
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