Liability rules for constitutional rights: the case of mass detentions.

• Author: Kontorovich, Eugene
• Position: Takings clause approach to nonproperty rights

INTRODUCTION

1. THE CONSTITUTIONAL CATHEDRAL A. Liability and Property Rules 1. Rights and remedies distinguished 2. Centrality of transaction costs 3. Unified framework of analysis B. Pliability Rules C. IS CONSTITUTIONAL LAW OUTSIDE THE CATHEDRAL? 1. Incommensurability 2. Resentment and demoralization costs 3. Government as imperfect agent 4. Rules versus standards II. PLIABILITY RULES FOR MASS DETENTIONS A. Judicial Tolerance of Mass Detentions 1. Deference 2. Delay and abstention B. Extraordinary Transaction Costs C. Introducing the Mass Detention Pliability Rule D. Arguments Against Compensation 1. Deference 2. Can socially efficient violate constitutional rights? III. BENEFITS (AND POSSIBLE COSTS) OF A MASS DETENTION PLIABILITY RULES A. Remedial Continuity 1. Hedging undiversified risks 2. Optimizing on two axes B. Redress of Detainees C. Speed and Certainty E. Deterrence IV. CONSTITUTIONALITY OF LIABILITY RULES A. Constitutional Text B. Equitable Discretion C. Legislative Restrictions and Equitable Relief 1. The obscure origins of injunctive essentialism 2. Tax Injunction Act 3. Summary: A taxonomy of remedial discretion D. Implicit Pliability Rules 1. Quarantines and vaccination 2. Military conscription 3. Transactions costs limits of the conscription analogy CONCLUSION In the wake of a massive attack on U.S. soil, the government quickly detains thousands of people in the hopes of preventing further strikes. The arrestees are not selected on the basis of individualized suspicion but simply because they share ethnic or ideological characteristics with the attackers. (1) As a result, the detention sweeps in many innocent people along with--if successful--the few that are planning havoc.

   A court reviewing the mass detention program faces a stark choice. It can decide that the detentions violate constitutional rights. This conclusion would require enjoining the policy and freeing all the detainees--including, perhaps, the unidentifiable few who plan further violence. On the other hand, the court can uphold the detentions, ruling that the individuals' liberty rights must give way to pressing security concerns. (2) Under this scenario, many innocent people remain in jail on the basis of evidence that would normally not even warrant their arrest. In practice, the Supreme Court tends towards the latter course, placing security interests ahead of liberty interests during actual or perceived national security emergencies. This creates groups of uncompensated victims, often politically vulnerable members of ethnic minorities. Furthermore, the expedients to which courts resort to avoid enjoining mass detentions distort and stunt the development of constitutional law.

   To the extent courts fail to vindicate constitutional liberty interests during national security crises, it is because of an unduly narrow conception of the possible remedies for violations of constitutional rights. This Article draws on the richer understanding of remedies developed in private law scholarship to show that the choice described above need not be binary. There is an unexplored middle option between mass release and mass detention--liability rules. This Article seeks to develop a deeper understanding of the relationship between constitutional rights and remedies, one that can help provide redress for mass detentions without compromising vital security interests.

   The freedoms set out in the first eight amendments of the Constitution are generally regarded as rights that must be protected by property rules. This Article will refer to this dominant view as the "injunctive essentialist" paradigm. (3) In this understanding, people threatened with a prospective or ongoing nonconsensual taking of their constitutional rights are entitled to an injunction against the governmental action. (4) Money damages only play a role when it is too late for an injunction.

   In private law, the situation is quite different. The creation of a legal right leaves open the question of how it will be protected--either with property rules or with liability rules. In their path-breaking article, Property Rules, Liability Rules, and Inalienability Rules: One View of the Cathedral (5) ("The Cathedral"), Guido Calabresi and A. Douglas Melamed ("C&M") show that the choice of protective rule should hinge on the transaction cost structure under which potential transfers of the entitlement occur. Under low transaction costs, property rules--which allow entitlements to be transferred only with the consent of the original owner--achieve the best possible results. However, as transaction costs rise, property rules tend to block socially beneficial transactions. In these circumstances liability rules--which allow entitlements to be transferred against the wishes of their original owners, who then receive the cash value of the entitlements in court-ordered damages--become attractive alternatives.

   Constitutional theory has ignored the possibility of protecting rights with liability rules. (6) However, no constitutional provision or doctrine explicitly mandates property rules. Indeed, the Constitution is sensitive to the inefficiencies that can arise from using property rules in high transaction costs settings. The Takings Clause prescribes liability rules as the exclusive form of rights protection in eminent domain cases because under a property rule, holdout problems (a form of transaction cost) among owners would often block socially beneficial government projects. (7) The Takings Clause deals with the most routine situations where liability rules can be useful for protecting constitutional rights--but not the only such situations.

   This Article challenges injunctive essentialism by extending the insights of The Cathedral to constitutional law. In some unusual but extraordinarily important situations liability rules may be preferable to property rules. The former will be the best way to protect constitutional rights under the same conditions that make them preferable in private law--where high transaction costs prevent efficient rights-transfers under a property rule.

   Applying C&M analysis to constitutional law requires close scrutiny of transaction costs, which vary greatly across different factual contexts. Analyzing one particular scenario allows for a more thorough examination of the relevant transaction costs. Thus this Article uses mass detentions in national security emergencies to illustrate how injunctive essentialism becomes dysfunctional when transaction costs rise significantly, and how a temporary switch to liability rules can result in greater protection of constitutional rights. "Mass detention" is not a precisely defined category. The Civil War, the Second World War, and perhaps the early months of the current campaign against Islamicist terror suggest the nature of the phenomenon. (To be sure, there are many important differences among these particular historical episodes of mass detention.) This Article uses the term "mass detention" not to refer to a particular episode, but to the generic phenomenon characterized by a broad program of preventive arrests and confinement not based on individual suspicion and significantly larger in scale than ordinary criminal sweeps.

   Under a liability rule, courts would not need to choose between mass release or uncompensated mass detention. Rather, upon finding a detention program unconstitutional, courts could refuse to enjoin it and instead award the detainees money damages for the duration of their confinement. This is essentially a Takings Clause approach to nonproperty rights. It may at first glance seem less protective than the traditional property-rule understanding of constitutional rights. However, this objection does not take into account the dynamic and complex relationship between rights and remedies. The Cathedral shows that given high transaction costs, property rules can prevent socially beneficial activities. When foregone social benefits are particularly high, experience and other predictors suggest the Supreme Court will be unwilling to impose such losses on society.

   In particular, the Court has not enjoined mass detentions during security crises. Instead, it has denied the existence of the constitutional right or simply avoided decision--which under a property rule are the only alternatives to an injunction. Thus constitutional law's insistence on the supposedly "stronger" property rule protection has perversely resulted in no protection at all. Money damages could be more protective of individual rights in such situations: Instead of being held without suspicion and without compensation, detainees would at least enjoy some financial recovery. Furthermore, the intermediate option of money damages would make courts more willing to find detentions unconstitutional in the first place, thus giving detainees the benefit of a judicial declaration that they have been wronged.

   This Article does not argue that constitutional rights should at all times be protected by liability rules. (8) Indeed, property rule protection is normally proper because in run-of-the-mill cases transaction costs are sufficiently low. Recognizing that property rules will usually be appropriate for constitutional rights, this Article proposes a remedial structure that would combine the benefits of property rules in the general run of cases with the benefits of liability rules when transaction costs dramatically increase. This remedial structure is a "pliability rule"--it provides property rule protection most of the time but liability rule protection some of the time. (9) The constitutional pliability rule introduced in this Article would temporarily toggle the protection of liberty rights from a property rule to a liability rule during national security crises.

   Constitutional pliability rules have attractive features regardless of whether one evaluates a legal rule by its advancement of individual justice, social efficiency...