Issue 5

The Constitution in Two Dimensions: A Transaction Cost Analysis of Constitutional Remedies

This Article reveals the underappreciated role of liability rules in constitutional law. Conventional constitutional theory insists that constitutional entitlements require, by their nature, property rule protection. That is, they can only be taken with the owner’s consent; nonconsensual takings can be enjoined. This Article shows that many constitutional values are in fact protected by liability rules, which allow for forced transfers followed by payment of compensation. Substantive entitlements form one dimension of constitutional law. The various ways in which they are protected against transfers form the second dimension. The full picture of constitutional law only emerges from looking at both.

The Article locates liability rules in diverse areas such as the First Amendment prior restraint doctrine, the Third Amendment, Fourth Amendment search and seizure rules, the Due Process Clauses, the Takings Clause of the Fifth Amendment, the Self-Incrimination Clause of the Fifth Amendment, and the Excessive Bail Clause of the Eighth Amendment. Thus constitutional theory’s insistence on property rule protection fails account for how some constitutional values are actually protected. This Article develops a richer understanding of the relationship between constitutional remedies and constitutional entitlements. The transaction cost perspective on constitutional law reveals previously unnoticed connections between various doctrines, and provides a new criterion for evaluating their strengths and weakness.

This Article also presents new evidence that the Constitution does not require property rule protection and can be satisfied with liability rules. It shows that the oft-overlooked Third Amendment explicitly mandates property rule protection for the entitlement it defines. This property rule, together with the Takings Clause’s explicit liability rule, shows that for other entitlements the Constitution does not require any particular form of protection. The explicit property rule and the explicit liability rule define the second dimension in constitutional law.

Relocating Disorder

Judicial challenges to order-maintenance policing apparently are leading some city officials to adapt the tools of property regulation to a task traditionally reserved for the police—the control of disorderly people. Examples of efforts to regulate disorder, ex ante, through land-management strategies include homeless campuses that centralize housing and social services, neighborhood exclusion zone policies that empower local officials to exclude disorderly individuals from struggling communities, and the selective targeting of inner-city neighborhoods for aggressive property inspections. These tactics employ different management techniques—some concentrate disorder and others disperse it—but they have same goal: to relocate urban disorder from one place (where it is perceived to be harmful) to another (where it hopefully will be more benign). These developments are not surprising. Urban policymakers long assumed that regulations ordering land uses effectively curb disorder (an assumption that I have questioned). And, moreover, the broad deference granted to the government-qua-regulator makes disorder-relocation policies particularly attractive. Unfortunately, these new disorder-relocation policies may create what Dan Kahan has called a cost of rights problem: In an effort to avoid constitutional challenges, local governments may adopt policies that impose costs at least as significant as their order-maintenance-policing substitutes. This Article seeks to understand what those costs might be.

The Chicken and the Egg: Kenneth S. Abraham’s “The Liability Century”

Books about the tort system tend to be polemics relentlessly drained of nuance. Either the tort system is awful—an unmitigated hindrance to the national economy and progress—or the tort system is the only thing standing between the welfare of the American public and the abyss: its principal flaw is that there is not more of it. The Liability Century is, by contrast, a largely anthropological exercise. Peering over the ridge separating the old century from the new, Professor Abraham examines what might be labeled “The Ages of American Liability Law.” Through these ages, he elucidates the appealing metaphor with which he opens his study:

Astronomers have discovered a solar formation they call a “binary star.” This formation consists of two suns, each in orbit around the other. Their center of gravity lies at a point in between them, and they revolve around that center of gravity. Neither star could remain where it is, or as it is, without the other. They are two separate bodies, but each is dependent on the other for its place in the universe.

In this Essay, I provide an overview of Abraham’s major themes, comment on their persuasiveness, and offer some direction to other sources readers might wish to consider. 

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