- Paperback: 376 pages
- Publisher: Harvard University Press; Revised ed. edition (January 1, 1985)
- Language: English
- ISBN-10: 0674867297
- ISBN-13: 978-0674867291
- Product Dimensions: 7 x 0.9 x 10 inches
- Shipping Weight: 1.1 pounds (View shipping rates and policies)
- Average Customer Review: 5.0 out of 5 stars See all reviews (12 customer reviews)
- Amazon Best Sellers Rank: #842,099 in Books (See Top 100 in Books)
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Takings: Private Property and the Power of Eminent Domain Revised ed. Edition
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About the Author
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.
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Top Customer Reviews
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.
James V. DeLong
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.
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? If so, there is a taking of private property, and we must examine further to determine whether compensation must be paid." (Pg. 36) Later, he adds, "In all instances interference with prospective advantage by the use of force is as actionable against the government as it is against all private parties." (Pg. 80) He elaborates, "if no private person may use force to prevent any individual from taking unowned things, then the police power does not place the private parties in any better position. There is no private wrong to control when private parties take unknowned things." (Pg. 219)
He admits, "It will be said that my position invalidates much of the twentieth-century legislation, and so it does. But does that make the position wrong in principle?" (Pg. 281) He argues, "There is no federal power to either grant or withhold the right of inheritance. The federal government is even more plainly required to justify its taking by showing that it falls within one of the permissible categories of public takings. Of this there is not a shadow in the decided cases or the academic literature, given the manifest redistributive purpose." (Pg. 305)
He concedes at the end of his book, however, "The question then arises whether there is a political will to carry out these reforms, either by the courts or the legislature. The short answer is that there is not. And there may never be." (Pg. 329)
Controversial, but also creative and thought-provoking, this book is a definite "must read" for anyone (particularly with a libertarian bent) interested in property rights.
It is refreshing to see this truth in print in a well-reasoned and comprehensive book.
My only warning: the style of this book is highly intellectual and academic. This is not casual reading material.
John Christmas, author of "Democracy Society"