An end-run around the takings clause? The law and economics of Bivens actions for property rights violations.

• Author: Sura, Arpan A.

TABLE OF CONTENTS INTRODUCTION I. WHAT IS THE "EFFICIENT" RESULT? A. Approach One: The Constitutional Torts Approach B. Approach Two: The Takings Clause Approach C. The Superiority of the Constitutional Torts Approach II. THE COSTS AND BENEFITS OF BIVENS A. Why Not Injunctive Relief? B. The Economics of the Exceptions to Bivens C. The Effect of Qualified Immunity III. BIVENS IN ITERATED AND NON-ITERATED GAMES A. A Game-theoretic Analysis of Federal Land-use Disputes B. Government as a One-time Transactional Actor C. Government as a Repeat Transactional Actor D. A Fourth Amendment Example IV. ANALOGIZING NUISANCE TO HARASSMENT RELATED TO LAND USE A. Advantages of the Nuisance Analogy B. Disadvantages of the Nuisance Analogy V. SLOWING THE END-RUN AROUND THE TAKINGS CLAUSE A. The End-Run Explained B. Righting Unconstitutional Wrongs Without Shackling Federal Agents CONCLUSION INTRODUCTION

Frank Robbins owned a ranch and guest lodge in beautiful northwest Wyoming. (1) Robbins did not have a typical American neighbor, as his ranch neighbored land owned by the State of Wyoming, the federal Bureau of Land Management (BLM), and private ranchers. (2) When the BLM discovered that Robbins's ranch was unencumbered, (3) it demanded an easement from him. Robbins tried to negotiate payment for the easement, but the BLM flatly refused, declaring that "the Federal Government does not negotiate." (4) And negotiate it did not.

The BLM instead warned Robbins that "there would be war, a long war and [the BLM] would outlast him and outspend him." (5) BLM bureaucrats promised to "bury Frank Robbins." (6) And they were right--for over the next seven years, the BLM engaged in a systematic campaign of harassment and intimidation against Robbins. (7) BLM agents trespassed on Robbins's land (8) and broke into his lodge. (9) They tried to provoke violence between Robbins and another neighbor. (10) In addition to denying Robbins's access rights to federal land, the BLM revoked his special use permits, which were the primary source of his ranch's revenue. (11) Agents conducted surveillance on Robbins's guests, at times videotaping women using the restroom. (12) As time progressed, so too did the BLM's tactics, morphing beyond small-scale torts and economic intimidation. BLM bureaucrats tried to persuade other federal agencies to harass Robbins. (13) When that avenue failed, the BLM bureaucrats filed false criminal charges against Robbins. (14) A jury, disgusted by the way the BLM "railroaded" Robbins, acquitted him in less than thirty minutes. (15) The pattern of harassment went on and on, but Robbins never gave away his easement.

Robbins sued BLM supervisor Charles Wilkie, seeking money damages. (16) Conceding that no actual taking of property occurred, Robbins argued that the federal officials should pay damages for trying to extract, through a pattern of retaliatory intimidation, his property without just compensation. (17) According to the Supreme Court, however, the central issue did not concern property rights, remedies, or improper retaliation for the assertion of constitutional rights. It was a matter of jurisdiction--namely, whether Robbins could seek money damages against federal agents under the Fifth Amendment in the absence of congressional authorization. (18) In Wilkie v. Robbins, the Court refused to find a damages remedy under the doctrine of Bivens v. Six Unknown Federal Narcotics Agents. (19) Bivens allows, under certain circumstances, the victim of unconstitutional harm to pursue money damages against a federal official, even when Congress has not authorized a damages remedy. (20)

Robbins illustrates the range of economic incentives in play when federal officials bargain land-use provisions with private landowners. This Note is not a doctrinal criticism of Robbins. (21) Robbins, instead, is used as a timely example of how federal agents can make an end-run around the Takings Clause and extract property rights through nuisance-like behavior. This Note explores whether an economic analysis justifies a Bivens action in these cases. Although it concludes that a Bivens remedy increases optimal deterrence of unconstitutional federal land-use policies, this Note finds that a Bivens action, on its own, cannot achieve optimal deterrence.

Part I discusses the standard for measuring economic efficiency. Constitutional torts and takings doctrine both search for the efficient result. Despite this superficial similarity, the two have completely different efficiency paradigms. Constitutional torts are geared toward the optimal deterrence of unconstitutional conduct. Judicial interpretation of the Takings Clause, on the other hand, focuses on the optimal allocation of social resources. What is economically "efficient" in a Takings Clause case is quite different from the "efficient" outcome in a constitutional torts case. In a case like Robbins, in which the two underlying policies may coincide, an explicit decision must be made between optimal deterrence and wealth-maximization. Part I concludes that optimal deterrence should be the measure of efficiency.

Part II catalogues the costs and benefits of Bivens. Parts II.A and II.B conclude that a Bivens action is likely more efficient if a landowner cannot pursue other monetary remedies. In fact, Bivens authorizes money damages based in part on whether the victim has access to adequate alternative relief. (22) This makes economic sense. If a victim cannot access alternative remedies, federal agents would have little incentive to curb their unconstitutional behavior. Underdeterrence would occur. If adequate alternative remedies already exist, then a Bivens action would be redundant, perhaps subjecting federal agents to more liability than necessary. Overdeterrence would occur. Part II.C considers the related doctrine of qualified immunity. Because qualified immunity already combats the costs related to overdeterrence, an economic analysis of Bivens need not dwell on the costs associated with swamping federal officials with constitutional tort liability. At the same time, qualified immunity imposes significant costs. These costs should lead courts to find more Bivens actions valid.

As Part III explains, a Bivens action has an increased deterrent effect if the landowner and federal agents are playing an "iterated" game. When a federal official violates a particular victim's constitutional rights in a discrete, one-shot deal, a constitutional tort action may not deter the official from harming the victim again, even if it deters the official from harming everybody else. In cases like Robbins, however, the same federal agents repeatedly interact with the same landowner. Because the parties are the same, the game is said to be "iterated." The deterrence effect of a Bivens action may be stronger in preventing the same federal agents from harming the same landowner in an iterated game.

Part IV situates Bivens claims for federal violations of property rights against nuisance common law. Takings literature does not successfully address the harassment in Robbins. As Part IV shows, such harassment is more doctrinally and economically akin to common law nuisance, which focuses on optimizing deterrence and maximizing societal value.

Combining the insights of game theory, nuisance, constitutional torts, and takings, Part V demonstrates that a Bivens action for intentional federal nuisance-like behavior would have a salutary deterrent effect. Bivens is the appropriate mechanism to deter end-runs around the Takings Clause. Part V concludes by proposing a Bivens action that would protect landowners from federal harassment while preventing an explosion of litigation against the federal government. The proposed cause of action is sensitive to the absence of remedial alternatives under tort and takings law. It also accounts for the fact that such harassment, like nuisance, is an iterated game.

1. WHAT IS THE "EFFICIENT" RESULT?

   Before undertaking an economic analysis, it is important to specify the normative standard of comparison. According to the classic law and economics model set forth by Judge Richard Posner, efficiency "denote[s] that allocation of resources in which value is maximized." (23) The value of a good or service is subjective--it is whatever a person is willing to pay, (24) and economists make no judgment whether the preference is good or bad. When most economists proclaim a transaction "efficient," they usually refer to Kaldor-Hicks efficiency, under which the winners could hypothetically compensate the losers such that the result would be Pareto superior, and thus, nobody is worse off. (25) However much other policies--like corrective justice--matter above and beyond economic efficiency, (26) they are not the focus of this Note. The economic analysis here, rather, is positive instead of normative. As a positive inquiry, this Note "accepts the given goal, makes certain assumptions, and then identifies which legal rule would be most efficient within this framework." (27)

   Before concluding that a Bivens remedy maximizes the relevant values, one must ask what the relevant values are. The relevant values depend on the legal doctrines in play, the personal preferences and incentives that drive the relevant actors, and the effects of the actors' behavior. In evaluating the efficiency of money damages, this Note tackles the intersection of takings doctrine and constitutional torts. The first issue, then, is whether the efficient outcome should be dictated by (1) the constitutional torts approach or (2) the takings approach. To simplify, in the constitutional torts approach, courts and scholars try to prevent governmental misconduct just enough to promote legitimate governmental policies. (28) Takings doctrine and scholarship, by contrast, focus on spreading loss, maximizing social wealth, and preserving the physical and economic value of the property. (29) Although not mutually...