Volume 98

Atrocity, Entitlement, and Personhood

For a generation since Margaret Jane Radin’s classic article

Property and Personhood

, scholars have viewed personhood as a conception of property that affirms autonomy, dignity, and basic civil rights, a progressive alternative to traditional, more economically focused property theories. This Article presents a fundamental challenge to personhood as a progressive approach to property. It shows that personhood claims often derive from violent and other harmful acts committed in the course of acquiring and owning property. This persistent and pervasive connection between personhood and violence—the “atrocity value” in property—upends core assumptions about the American property tradition and complicates the progressive social function of property law. This Article explains why atrocity creates entitlement, drawing from social psychology and accounts of law and violence to show how violence can foster personhood. The Article then explores the deep historical roots of atrocity within the American property tradition, which helped establish an abiding cultural value that encouraged personal identification with property. Finally, the Article surveys how atrocity continues to foster personhood in an array of contexts involving common ownership, exclusion, and use. Ultimately, personhood emerges less as a progressive value in property than as a challenge that the law has had to negotiate. Property law is often successful in promoting progressive and cooperative goals because courts do not attempt to decide cases on the basis of a personhood value in property.

Regulation, Unemployment, and Cost-Benefit Analysis

Regulatory agencies take account of the potential unemployment effects of proposed regulations in an ad hoc, theoretically incorrect way. Current practice is to conduct feasibility analysis, under which the agency predicts the unemployment effects of a proposed regulation, and then declines to regulate (or weakens the proposed regulation) if the unemployment effects exceed an unarticulated threshold, that is, seem “too high.” Agencies do not reveal the threshold, do not explain why certain unemployment effects are excessive, and do not explain how they compare unemployment effects and the net benefits of the regulation. Many agencies also predict unemployment effects incorrectly. The proper approach is for agencies to incorporate unemployment effects into cost-benefit analysis by predicting the amount of unemployment that a regulation will cause and monetizing that amount. Recent economic studies suggest that monetized cost of unemployment is significant, possibly more than $100,000 per worker. If agencies used this figure, there could be significant consequences for a wide variety of regulations.

Unconstitutional Conditions: The Irrelevance of Consent

The unconstitutional conditions problem is the Gordian Knot of constitutional law. The standard solution is to cut through the knot with consent–to conclude that consent excuses otherwise unconstitutional restrictions. Of course, this leaves open the danger that the government can evade most of its constitutional limitations, and the literature on unconstitutional conditions therefore focuses on when consent has a curative effect and when it does not. In other words, the conventional analysis uses consent to hack half-way through unconstitutional conditions, but not all the way. It thereby creates many loose ends, without fully solving the problem. Indeed, current doctrine on unconstitutional conditions is widely recognized to be as incoherent and inconsistent as it is important.

It therefore is necessary to reconsider the reliance on consent. Rather than a solution that can cut through the problem, consent is the source of confusion.

This Article unravels the different roles of consent to understand what it can do and what it cannot. On this basis, the Article concludes that consent is irrelevant for restrictions that go beyond the government’s power. Undoubtedly, under the Constitution’s enumerated powers, consent often allows the government to impose restrictions it could not impose directly. But this does not mean that consent can justify the government in going beyond its legal limits. The Constitution’s limits on the government’s authority are legal limits imposed with the consent of the people. Therefore, private consent (whether from individuals or institutions) cannot alter these limits or otherwise enlarge the government’s constitutional power.

This is most clear as to the separation of powers and the enumerated rights. Most of these limits, unlike the enumerated powers, do not define government power in terms of consent. As a result, there is no question of whether consent allows the government to impose restrictions it could not impose directly. Instead, the question is merely whether private consent can relieve the government of its constitutional limitations, permitting it to do what the Constitution forbids. Therefore, at least as to the separation of powers and the enumerated rights, the government cannot do by consent what it could not otherwise do by law.

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