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


Eugene Kontorovich


Northwestern University Law School


Virginia Law Review, Vol. 91, 2005

Abstract:     
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 to 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 one explicit property rule and the one explicit liability rule define the second dimension in constitutional law.

Number of Pages in PDF File: 61

Keywords: Constitutional law

JEL Classification: K19

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Date posted: October 4, 2004  

Suggested Citation

Kontorovich, Eugene, The Constitution in Two Dimensions: A Transaction Cost Analysis of Constitutional Remedies. Virginia Law Review, Vol. 91, 2005. Available at SSRN: http://ssrn.com/abstract=599963

Contact Information

Eugene Kontorovich (Contact Author)
Northwestern University Law School ( email )
375 E. Chicago Ave
Unit 1505
Chicago, IL 60611
United States
(212) 503-0429 (Phone)
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