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Framing Transactions in Constitutional Law
Daryl J. Levinson
Common-law rules and adjudication are typically structured around discrete interactions between strangers. The unit of legal analysis, or “transaction,” is intuitively defined by the discontinuous event that disrupted the otherwise unrelated lives of the parties; and the focus of adjudication is on the harm to the plaintiff, as measured by the marginal deviation from her baseline welfare just prior to this event.
When applied to constitutional law, however, this model of “transactional harm” becomes immediately and irremediably problematic. The essential problem is that we quickly lose our intuitive grasp on what counts as a transaction for purposes of identifying the harm inflicted by government on a private citizen. Unlike the paradigmatic private parties in common-law cases, government and citizens are not strangers to one another. Instead they are engaged in a continuous relationship—one that plays out over a historical time period and over a scope as broad as the public sphere. Over the course of this relationship, moreover, countless harms and benefits are passed back and forth. When constitutional law borrows the common-law model of transactional harm, it must somehow slice the government-citizen relationship into adjudicative transactions for the purpose of evaluating whether government has inflicted a constitutionally cognizable harm. How the transaction is “framed” will determine which parts of the ongoing government-citizen relationship, which of the myriad benefits and harms, will be counted on the adjudicative ledger.
Lacking any analogue to the common-law collision between strangers, however, constitutional law has no criteria for carving discrete constitutional transactions out of the background relationship between government and citizens. The results of constitutional cases are consequently determined by the location, size, and shape of transactional frames that are virtually never identified, let alone justified. This is the basic problem of “framing transactions” in constitutional law.