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Global Fifth Amendment

Harry Blutstein

in The Ascent of Globalisation

US legal scholar, Richard Epstein developed a radical legal doctrine of ‘regulatory takings,’ based on the Fifth Amendment of the US Constitution, which revolutionised intergovernmental and ... More

US legal scholar, Richard Epstein developed a radical legal doctrine of ‘regulatory takings,’ based on the Fifth Amendment of the US Constitution, which revolutionised intergovernmental and multilateral investment agreements around the world. First applied to NAFTA, it established a radical precedent that allows corporations legal standing to take governments to independent investment tribunals. As a result, private firms were able to force judgements on nation states guilt of regulatory takings, including substantial damages for lost profits. Unsuccessful attempts were made to include regulatory takings in two international treaties: the Trade Related Investment Measures and the Multilateral Agreement on Investment. They were defeated by opposition from development countries and activists. Undeterred, supporters of the principle of regulatory takings had more success including NAFTA-type clauses into bilateral and multilateral investment agreements. These have provided unprecedented protection of foreign investment.Less

Richard Epstein and the Incredible Shrinking Government

in Desperately Seeking Certainty: The Misguided Quest for Constitutional Foundations

This chapter focuses on the Reagan platform which was constitutionally mandated as studied by Richard Epstein, a brilliant libertarian scholar at the University of Chicago Law School. He argued that ... More

This chapter focuses on the Reagan platform which was constitutionally mandated as studied by Richard Epstein, a brilliant libertarian scholar at the University of Chicago Law School. He argued that most government regulations violate the Constitution's Takings Clause and its companion, the Contracts Clause. Epstein talked about a striking governmental, especially federal, power that is illustrated in his book using as an example employment discrimination. Although Epstein argues that special limits apply to the federal government, he believes the powers of all levels of government should be sharply limited. According to Epstein, most existing regulations are beyond the power of any level of government because they are unconstitutional takings of private property. He also recognizes that people have relied in important ways on current law.Less

Strict Liability

Ernest J. Weinrib

in The Idea of Private Law

This chapter deals with the relation of strict liability to corrective justice. The first half criticizes Richard Epstein's sustained effort to vindicate strict liability as a requirement of justice ... More

This chapter deals with the relation of strict liability to corrective justice. The first half criticizes Richard Epstein's sustained effort to vindicate strict liability as a requirement of justice between the parties. Epstein's position is consistent neither with corrective justice's equality nor with its idea of agency nor with its correlativity of right and duty. As a general tort norm, strict liability is as unsound as the subjective standard rejected in Vaughan v Menlove. The second half of the chapter considers particular common law doctrines often associated with strict liability: respondeat superior, liability for abnormally dangerous activities (Rylands v Fletcher), nuisance, and liability for using another's property to preserve one's own (Vincent v Lake Erie). Examined with regard to their specific contours, these doctrines are either extensions of liability or ways in which the common law regulates the use of property in accordance with corrective justice.Less

The Conservative Case for Regulation

Brian T. Fitzpatrick

in The Conservative Case for Class Actions

Contrary to common misperceptions, conservatives and libertarians believe that markets need some rules. Drawing on the work of Milton Friedman, Friedrich Hayek, Richard Epstein, and others from the ... More

Contrary to common misperceptions, conservatives and libertarians believe that markets need some rules. Drawing on the work of Milton Friedman, Friedrich Hayek, Richard Epstein, and others from the “Chicago School” and “Austrian School” of economics, this chapter shows that most conservatives and libertarians agree markets at the very least need rules against breaching contracts, fraud, and horizontal price fixing. Many if not most class action lawsuits fall into these categories.Less

Property, Speech, and the Politics of Presumptive Power

Laura S. Underkuffler

in The Idea of Property: Its Meaning and Power

This chapter considers the argument made by Richard Epstein regarding property and speech. In his well known article, ‘Property, Speech, and the Politics of Distrust’, Epstein argues that there has ... More

This chapter considers the argument made by Richard Epstein regarding property and speech. In his well known article, ‘Property, Speech, and the Politics of Distrust’, Epstein argues that there has been a mistake in the ‘dominant mode of thinking about property rights during the past 50 years [that] has been… of constitutional dimensions’. This mistake, in Epstein's view is the refusal of the American courts to accord to individual property rights the same kind of protection from government regulation that is accorded to other constitutional rights. He argues that the ‘attitude of distrust’ with which courts approach government regulation of speech should animate their approach to government regulation of property.Less

To the Slaughterhouse

Jefferson Decker

in The Other Rights Revolution: Conservative Lawyers and the Remaking of American Government

Ronald Reagan’s second term in office began with big ambitions but was plagued by scandal and mismanagement. Veterans of conservative legal groups working for the administration experienced these ... More

Ronald Reagan’s second term in office began with big ambitions but was plagued by scandal and mismanagement. Veterans of conservative legal groups working for the administration experienced these disappointments firsthand and learned from them. This chapter describes the efforts of Justice Department environmental lawyers Thomas Hookano and Roger Marzulla to persuade their administration to take a hard stand against “temporary takings”—that is, the notion that the government owes property owners money even if it later rescinds the offending regulation. And it describes how Clint Bolick, a lawyer for the justice department’s civil rights division, decided that conservatives should embrace the expansive view of the Fourteenth Amendment associated with legal liberals—and use it to promote economic freedom. Bolick’s ideas helped to set the agenda of conservative legal groups from the 1990s to the present.Less

Property and Utility

Richard Adelstein

in The Exchange Order: Property and Liability as an Economic System

This chapter shows how government constrains ownership in pursuing its objectives, considers the police power and eminent domain as alternative ways of achieving them in light of the dispute between ... More

This chapter shows how government constrains ownership in pursuing its objectives, considers the police power and eminent domain as alternative ways of achieving them in light of the dispute between Locke and Bentham, and introduces a central concept of the book, involuntary exchange. Exercising its police power, government may destroy the value of property without compensation, but eminent domain takings require that owners be paid full compensation for their loss. Eminent domain thus governs involuntary exchanges, compelled sales of property to government at a price equal to the replacement value of the property taken, and constitutes an organizational midpoint between markets and liability as institutions to govern exchange. The Supreme Court’s problematic attempts to distinguish between the two powers, and determine when a taking has been for public use, are considered, and two modern scholarly attempts to address the takings question, one Benthamite and one Lockean, are compared.Less

The Practice of Corrective Justice

JULES L. COLEMAN

in The Philosophical Foundations of Tort Law

The extent to which this book sees corrective justice in tort law surely depends on its understanding of it; the same is true of any would-be corrective justice account of tort law: Ernest Weinrib’s, ... More

The extent to which this book sees corrective justice in tort law surely depends on its understanding of it; the same is true of any would-be corrective justice account of tort law: Ernest Weinrib’s, George Fletcher’s, and Richard Epstein’s, as well as Jules Coleman’s. So it is only natural to ask whether any of them is right about the content of corrective justice. And that requires an account of what it means to say that a particular conception of a concept like corrective justice is correct, as well as an account of the adequacy conditions of such a judgment. This chapter tackles some of these meta-ethical concerns. Before doing so, however, the chapter outlines the way in which corrective justice figures in the general approach to political philosophy.Less