Completing the Cathedral Taxonomy of Salient Legal Entitlement Forms: With Application of the New Entitlement Forms to Describe Constitutional Rights, Rationalize the Unconstitutional Conditions Doctrine and Better Understand Legal Personhood

Abstract

A first necessary step in developing a sound theory of legal entitlements is completing a taxonomy of salient legal entitlement forms. So far legal theorists have specified the legal entitlement forms that describe certain important legal rights but not others. For example, legal entitlement theory has specified the entitlement form, Calabresi and Melamed’s “property entitlement,” that characterizes in most contexts a person’s legal interest related to a bottle of water she has purchased; but it has not accurately specified the entitlement form that describes a person’s fundamental constitutional rights in most transaction settings. To complete the taxonomy of salient legal entitlement forms, it is necessary to make two distinctions: 1. between a person’s interests that are or are not protected by non-discrimination duties owed by other persons in specified transaction settings and 2. between a person’s interests that are or are not predicated on completing a transaction with another person. Drawing these distinctions yields two new salient entitlement forms. The first, that I refer to as the strong property entitlement form, is a property entitlement that is protected by non-discrimination duties in specified transaction settings in addition to the non-interference duties that effectuate basic property entitlements. In most transaction settings a citizen’s fundamental constitutional rights are strong property entitlements rather than basic property entitlements as they have been most frequently conceived. For example, the state may not forcibly interfere with a citizen’s Sixth Amendment right to jury trial in criminal prosecutions, such as by curtailing the right through legislation. Pursuant to the unconstitutional conditions doctrine, the state also may not discriminate against criminal defendants who are unwilling to waive this Sixth Amendment right when it determines how to award benefits. Thus, the state may not make waiver of jury trial a condition to providing the defendant with better jail conditions. The second new salient legal entitlement form, that I refer to as the contingent strong property entitlement form, describes a person’s interest full realization of which is predicated on a certain type of transaction being completed that is protected by non-discrimination duties of some class of potential transaction counterparties. An example is a person’s right to parental leave benefits in connection with employment. What makes parental leave benefits an entitlement as opposed a lesser legal interest is a duty each potential employer owes to prospective employees not to discriminate on the basis of a person’s unwillingness to waive parental leave benefits in determining whom to hire. For purposes of positive legal theory, what is important is to identify precisely the combinations of legal rules/duties that define the salient recurring legal entitlement forms. The hope is that definition of these new entitlement forms (ignoring the subjective names I have assigned them) constitutes a non-controversial advance in positive legal theory that will help to resolve doctrinal confusion in a number of areas, assist in more effective design of new legal entitlements and contribute to more accurate determination of what legal entitlement form lawmakers intended when a statutory or constitutional provision does not precisely specify such. Separately, in the realm of normative legal theory, I contend that identifying these new entitlement forms enables a more precise understanding of legal personhood and enables rationalization of the unconstitutional conditions doctrine. In addition, the article discusses how interests that are structured as strong property entitlements or contingent strong property entitlements regulate monopoly power even where, as is frequently the case, the primary motivation for structuring the interests in this manner is to effectuate conceptions of personhood.