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Richard A. Epstein is Laurence A. Tisch Professor of Law at New York University School of Law, Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, and James Parker Hall Distinguished Service Professor Emeritus of Law and Senior Lecturer at the University of Chicago Law School.
This fine book by Prof. Richard Epstein has probably been more influential than the casual reader may be aware.
The heart of Epstein's claim is that _anything_ the government does that imposes any sort of "cost" on anybody amounts to a "taking" for which the Constitution requires just compensation. We all know how this is supposed to work as applied to the usual exercise of eminent domain. But Epstein casts his net wide and argues that the takings clause applies to all sorts of things you never would have thought of -- welfare programs, rent control, jiggery-pokery with the national currency, you name it.
The impact of the book is evident mainly through "negative" evidence. For example, some readers may recall that during the Clarence Thomas hearings, somebody asked Thomas if he believed the stuff in this book (as the Congresscritter in question clearly did not). I think Thomas managed to duck the question, but the point was made. And at any rate, it tells you something that somebody found it important to _ask_ the question in the first place.
Then, too, my own property-law casebook remarks somewhere near the end that Epstein's views on "takings" have not been found convincing by too many people. Interesting that the book still finds it necessary to mention his work, then.
So check it out. Sure, it's radical, and (let's admit it frankly) it's probably not a correct interpretation of the framers' intent. But if you're not a tax-and-spend Congresscritter, maybe you'll find it as pregnant and alluring a suggestion as I do. And it's one of Epstein's best books; I think he wrote it before he had completely converted to utilitarianism. You don't have to agree with it, but you should at least learn why Federalistas are afraid of it.
The human right to own and use property is a bedrock of our basic values and freedoms. Epstein's classic book is a seminal (and accessible) analysis of the complex legal and philosophical issues involved. Its original publication in the mid-1980s was also an important political event; it helped trigger the current movement to reinvigerate the right to property, in the Congress and in the Courts. With the Del Monte Dunes case up in the Supreme Court, the argument is getting even hotter. Takings is essential for anyone who wants to understand the issues. James V. DeLong
The author of takings sorts out some vital issues. This book sorts out eminent domain issues, based on a clearly described economic theory of government. Epstein settles the 'Lockean Proviso' issue, and reasons through many other issues. For example, he makes the case for flat taxes over so called progressive taxes. But above all, this book establishes that anything that the government does constitutes a taking of some kind, and takings are only justified in very limited circumstances.
Takings is the best reasoned critique of modern transfer states that I have seen. This is one of a few books that has really changed the way I think about political economy. Every Law and Public Policy student should read this book, as should David Souter.
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He wrote in the Preface to this 1985 book, "This book is about the conflict between the original constitutional design and the expansion of state power... I argue that the eminent domain clause and parallel clauses in the Constitution render constitutionally infirm or suspect many of the heralded reforms and institutions of the twentieth century: zoning, rent control, workers' compensation laws, transfer payments, progressive taxation." He later adds, "In what follows I shall advocate a level of judicial intervention far greater than we now have, and indeed far greater than we ever have had. But at no point does the argument depend upon a belief in judicial activism in cases of economic liberties... the courses indicated are necessary implications derived from the constitutional text and the underlying theory that it embodies." (Pg. 30-31)
He poses his basic question, "Would the government action be treated as a taking of private property if it had been performed by some private party?Read more ›
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