Common law rules and adjudication are structured around discrete between strangers. The prevailing, classically liberal, model of tort, contract, and property cases features atomistic individuals, otherwise independent from one another, who interact only at the point of a discontinuous event, sharply limited in space and time. In the paradigmatic case of a tortious collision or contract breach, the unit of legal analysis, or transaction, ordinarily seems self-evident: it is simply the self-contained, harm-causing interaction that disrupted the otherwise unrelated lives of the two parties. The focus of adjudication is on the marginal deviation from the position or welfare of the litigants prior to their interaction, which measures the inflicted. This common law model of is familiar and, for the most part, unproblematic. Perhaps because of its familiarity, the model of transactional harm has been applied wholesale to constitutional law. Constitutional violations, too, are predominantly understood as discrete in which government inflicts harm on some individual by making her worse off than she was before relative to some status quo baseline position or, under equality rules, relative to some reference individual or group. In the constitutional context, however, the model of transactional harm becomes immediately and irremediably problematic. The crux of the difficulty is that, in contrast to common law cases where the size and shape of seems intuitive, in constitutional law we have no idea how to think about what counts as a transaction for purposes of identifying harm. Unlike strangers whose lives intersect only at the point of some discontinuous interaction, government and citizens, individually and collectively, are engaged in a continuous relationship - one that plays out over a historical time-frame and over a scope as broad as the public sphere. In the course of this relationship, countless harms and benefits are imposed back and forth. When it borrows the transactional model of private law adjudication, therefore, constitutional law is obligated somehow to slice the elaborate and continuous course of dealings between government and citizens into adjudicative for purposes of evaluating whether government has inflicted a constitutionally-cognizable harm. But without the discrete discontinuity of a common law collision between strangers, there is no intuitive way of demarcating and distinguishing constitutional from the background relationship. In contrast to private law, where the size and shape of are either intuitively self-evident or explicitly justified in instrumental terms, the around constitutional law are always contestable and usually left unacknowledged and unjustified. Most constitutional law regimes ask whether some individual or group has been harmed by government with respect to some qualitative interest, like speech, property, or equality. This type of question cannot be answered without reference to some transactional frame that determines how much of the relationship between government and citizen, which benefits and harms, will be included within the constitutionally relevant transaction. It all depends on how you slice it. Absent any natural joints along which to cut, courts and theorists are guided by normatively arbitrary doctrinal limitations and normatively opaque intuitions in carving out constitutional transactions. Answers to the central questions of constitutional adjudication - questions about neutrality, equality, and injury - are predetermined by decisions about transactional that are seldom even recognized as choices, let alone justified. Cases thus turn on the location, size, and shape of often invisible transactional frames that are fixed prior to any deliberation over the meaning or purposes of constitutional rights. This is the basic problem of framing transactions in constitutional law.
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Jan 22, 2013
Robert H Lande 
Open Access
