Classical Liberal Property and the Question of Institutional Choice

Richard Epstein’s property scholarship tracks his classical liberal theory of government. The classical liberal would permit state intervention to overcome collective-action problems but not to engage in redistribution of wealth. With respect to private law, Epstein harbors no clear preference for either the legislature or the courts as a source of limits on owners’ autonomy to overcome collective-action problems. With regard to public law, in contrast, Epstein would elevate the courts to a superior status relative to legislatures and would have courts enforce the classical liberal ideal as a matter of constitutional law. This article questions whether giving such power to courts makes sense, even on classical liberal assumptions

Autonomy · Classical liberalism · Collective action · Constitutional law · Economics · Ideal (ethics) · Law and economics · Legislature · Liberalism · Political science · Politics · Scholarship · American Constitutional Law and Politics · Law · Legal principles and applications · Property Rights and Legal Doctrine

• Takings

  Richard A Epstein•Takings•1985

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• The Logic of Collective Action

  Mancur Olson•Logic of Collective Action•2009

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• Lucas v. South Carolina Coastal Council

  Richard A Epstein•Stanford Law Review•1993

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