Takings: Private Property and the Power of Eminent Domain (Paperback)

~ Richard Epstein (Author)
Key Phrases: disproportionate impact test, eminent domain clause, public use limitation, United States, Supreme Court, New York (more...)

Editorial Reviews

Product Description

If legal scholar Richard Epstein is right, then the New Deal is wrong, if not unconstitutional. Epstein reaches this sweeping conclusion after making a detailed analysis of the eminent domain, or takings, clause of the Constitution, which states that private property shall not be taken for public use without just compensation. In contrast to the other guarantees in the Bill of Rights, the eminent domain clause has been interpreted narrowly. It has been invoked to force the government to compensate a citizen when his land is taken to build a post office, but not when its value is diminished by a comprehensive zoning ordinance.

Epstein argues that this narrow interpretation is inconsistent with the language of the takings clause and the political theory that animates it. He develops a coherent normative theory that permits us to distinguish between permissible takings for public use and impermissible ones. He then examines a wide range of government regulations and taxes under a single comprehensive theory. He asks four questions: What constitutes a taking of private property? When is that taking justified without compensation under the police power? When is a taking for public use? And when is a taking compensated, in cash or in kind?

Zoning, rent control, progressive and special taxes, workers' compensation, and bankruptcy are only a few of the programs analyzed within this framework. Epstein's theory casts doubt upon the established view today that the redistribution of wealth is a proper function of government. Throughout the book he uses recent developments in law and economics and the theory of collective choice to find in the eminent domain clause a theory of political obligation that he claims is superior to any of its modern rivals.

About the Author

Richard A. Epstein is the James Parker Hall Distinguished Service Professor of Law at the University of Chicago and an Adjunct Scholar of the Cato Institute.

Product Details

• Paperback: 376 pages
• Publisher: Harvard University Press (January 1, 1985)
• Language: English
• ISBN-10: 0674867297
• ISBN-13: 978-0674867291
• Product Dimensions: 9.2 x 6.1 x 0.9 inches
• Shipping Weight: 1.1 pounds (View shipping rates and policies)
• Average Customer Review: 5.0 out of 5 stars  See all reviews (5 customer reviews)
• Amazon.com Sales Rank: #508,200 in Books (See Bestsellers in Books)

Customer Reviews

Most Helpful Customer Reviews

31 of 33 people found the following review helpful:

5.0 out of 5 stars Well-argued, July 16, 2001

By	John S. Ryan "Scott Ryan" (Silver Lake, OH) - See all my reviews (TOP 500 REVIEWER)    (REAL NAME)

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.

15 of 15 people found the following review helpful:

5.0 out of 5 stars Brilliant, August 14, 2005

By	Scott D. Scheule "Scott Scheule" (Arlington, VA) - See all my reviews (REAL NAME)

The takings clause of the Fifth Amendment of the United States Constitution, which had a brief surge of popularity recently due to the eminent domain case of Kelo v. New London, reads: "Nor shall private property be taken for public use, without just compensation."

Epstein, a law professor at the University of Chicago, begins his book by examining briefly the purpose of the clause and the power of eminent domain, invoking Lockean and Hobbesian theories of the state. After a cursory look at originalist theories of constitutional interpretation, dismissed as unworkable, Epstein has distilled the clause down to its theoretical underpinnings. This is the stepping point, the beginning of a masterful journey through American jurisprudence, which touches upon such varied fields as nuisance, tort, regulation, welfare, taxation, and police power.

His theory is simple in its particulars, essentially reduced to a few theories of representative government: 1. the state stands no better legally than the citizens it represents: its rights are merely the rights of its citizens in summation, and 2. the change in wealth from the primordial state of nature to the civilized body under government must not only increase, but the proportion between the shares of each individual must remain the same: that is to say, the distribution matters as rightly as the sum.

Simple as his premises are, the book is by no means humble in its application, and his conclusions are in no sense lacking for justification. Epstein's logic is buttressed at every turn by law review articles, often complex economic analyses, and veins of political science. His conclusions are not incontrovertible, but they are indeed mighty.

He brings this approach to what seems to be nearly every aspect of common and constitutional law (antitrust law being the one exception I noticed), all through the eye of the clause. Chapters stand on their own: one is barely aware of the arch of the grand overall argument until the final chapters, when the logic calmly leads us down lanes to ends we would dare not consider at the beginning of the book. But even then the approach is characteristically precise, honest, and stark.

The case is made for a society more libertarian, but it is not borne from the insipid koan of "non-aggression," but rather structured upon modern economic analytic techniques, the lessons of the common law, calculus both utilitarian and Kantian. Nevertheless, this is, to be sure, a legal book, despite the invasion of philosophy and social science. Supreme Court cases are introduced and appraised, Latin terms of art are utilized, the earthy grounding of common law precedent and principles will never be far away. It is only in the final and initial chapters that Epstein examines explicitly political philosophy, Nozickian, Rawlsian, and civil republican theories, and the implications his arguments bear when considered by their lights.

The legal center of the book will doubtlessly make it easier for lawyers to digest. The political implications will doubtlessly make it a better meal for libertarians than other political classes. Nevertheless, the layman will find much within to pique his interest (or enrage it), and any one with an appreciation of the excellent would do well to admire Epstein's arguments.

Something must be said for the author's style; it is certainly an academic one. Epstein does not use excess words, and will not waste ink restating a point already made. Superfluous sentences have not been included: every phrase exists as a necessary brick in the overall argument. The author throws no lifelines to his readers if they are confused, does not repeat what you were foolish enough to briskly skim over before, nor does he flash italics or CAPS when his points are particularly important. His manner is confident, never arrogant. If his argument has a weakness, he acknowledges the weakness and moves on without wasting more words. For example, perhaps my favorite passage:


But there is in fact good reason to recognize the practical strengths of the maxim [a common law principle of riparian rights], even if it does not capture an ultimate truth. That the rule bridges the gap between is and ought is hardly a demerit, for every rule of entitlement so functions. Better there be a connection between is and ought than no connection between ought and anything of interest in the external world. For dealing with the eminent domain clause, it is surely preferable to recognize a system of rights already in place than to invent one to replace it.

It is a dense and rewarding style. And it is a dense and rewarding read. Those looking for a comprehensive judicial philosophy may find it here entirely; those who already have one will find much to assimilate into the whole.

The final lines, which trickle by with characteristic understatement, and the final snap of the book's covers, left me in awe. I cannot recommend Takings highly enough.

26 of 29 people found the following review helpful:

5.0 out of 5 stars A classic., August 2, 1998

By	James V. Delong (Washington, DC USA) - See all my reviews (REAL NAME)

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