Working Paper No. 03-45:
Liability Rules for Constitutional Rights: The Case of Mass Detentions

Author(s):

Eugene Kontorovich

Date Posted: 2003

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Abstract:

Constitutional law assumes that rights should always be protected by property rules — that is, the government can only take them with the individual's consent. This Article extends to constitutional law the insights of Calabresi and Melamed's famous article on property and liability rules. Whether rights should be protected by property rules or liability rules depends on the transaction costs of negotiating a transfer of rights. As transaction costs rise, liability rules become more attractive.

This Article shows that liability rules can have an important role in constitutional law. Using mass detentions in national security emergencies as a case study, it shows that property rule protection of individual rights sometimes leads to perverse and inefficient results. While the government has repeatedly resorted to mass detentions in emergencies, the Court has never blocked such measures. This is a perverse result of constitutional law's insistence on property rule protection even when transaction costs of transferring liberty rights become extraordinarily high. Holding that a policy violates rights would require, under a property rule, enjoining potentially vital security measures. The Court is unwilling to impose such costs on society. Thus it simply avoids finding that mass detentions violate rights. This creates large groups of uncompensated victims, who are often members of vulnerable ethnic minorities. It also stunts and distorts the development of constitutional law.

Switching to liability rules in mass detention situations can, counterintuitively, result in greater redress for detainees, as well deterring detentions and preserving the integrity and predictability of substantive law. Furthermore, the transaction cost analysis developed in this Article has implications that extend beyond mass detentions to a variety of other constitutional contexts.