Contracting Away Rights: A Comment on Daniel Farber's 'Another View of the Quagmire'

Abstract

Daniel Farber's contribution to this Symposium suggests that some aspects of constitutional jurisprudence can be best understood by treating constitutional rights as default rules. Specifically, he attempts to use the concept of default rules to clarify the hopelessly confused doctrine of unconstitutional conditions. Professor Farber's starting point is incontestable. Virtually everyone agrees that the unconstitutional conditions doctrine is a mess. To borrow Farber's description, the doctrine is a quagmire: there is no generally accepted explanation for how the doctrine is supposed to work, what limits exist on the application of the doctrine, or even what purpose it is supposed to serve. Various prominent academic commentators have offered different suggestions to clarify these issues, but these commentaries explain the doctrine in very different ways and tend to propose different (and even inconsistent) solutions to reconcile the problems posed by the doctrine.