Imitations of libertarian thought

Social Philosophy and Policy

Volumn 15, Issue 2, 1998, Pages 412-436

  Epstein, Richard A ^a  

^a NONE

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EID: 0347244358     PISSN: 02650525     EISSN: None     Source Type: Journal    
DOI: 10.1017/s0265052500002053     Document Type: Article

References (67)

1. Lanham Act, 15 U.S.C. §§ 1051 et seq. For an instance of its application, see Warner Bros. Inc. v. Gay Toys, Inc., 658 F.2d 76 (2d Cir. 1981).
2. For a compact statement of the relevant principles, see American Law Institute, Restatement of the Law Third: Unfair Competition (St. Paul, MN: American Law Institute Publishers, 1995). Chapter 3 covers the law of trademarks. For a discussion of remedies, see ch. 3, Topic 6, § 35 (injunctions); § 36 (damages); and § 37 (accounting for defendant's profits).
3. Skinner v. Oklahoma, 316 U.S. 535 (1942).
4. Schenck v. United States, 249 U.S. 47, 52 (1919).
5. Mugler v. Kansas, 123 U.S. 623 (1887).
6. Pennsylvania Coal v. Mahon, 260 U.S. 393 (1922); Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992).
7. See, e.g., The Institutes of Justinian, 5th ed., trans. J. B. Moyle (Oxford: Clarendon Press, 1913), Book I, Title 2, paragraph 3: But the law of nations is common to the whole human race; for nations have settled certain things for themselves as occasion and the necessities of human life required. For instance, wars arose, and then followed captivity and slavery, which are contrary to the law of nature; for by the law of nature all men from the beginning were born free.
8. See William Blackstone, Commentaries on the Law of England (1765; Chicago and London: University of Chicago Press, 1979), vol. 1, p. 121.
9. Ibid., p. 125.
10. Ibid., p. 126.
11. Ibid., p. 130.
12. Ibid.
13. Ibid.
14. Ibid., p. 134.
15. Compare Kaiser Aetna v. United States, 444 U.S. 164 (1979) (right to exclude protected under takings clause), with Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978) (limited protection against land-use restrictions).
16. For discussion, see Richard A. Epstein, "Two Conceptions of Civil Rights," Social Philosophy and Policy, vol. 8, no. 2 (Spring 1991), pp. 38-59.
17. Merriam-Webster's Collegiate Dictionary, 10th ed. (Springfield, MA: Merriam-Webster, Inc., 1995), p. 1056.
18. Thomas Hobbes, Leviathan, ed. Michael Oakeshott (New York: Collier Books, 1962), p. 103.
19. David Hume, A Treatise of Human Nature, ed. L. A. Selby-Bigge (Oxford: Clarendon Press, 1888), Book III, section III.
20. Franklin D. Roosevelt, Nothing to Fear (Freeport, NY: Books for Libraries Press, 1946), p. 387.
21. Ibid., p. 389.
22. Ibid.
23. Ibid., p. 396.
24. Ibid., p. 397.
25. F. A. Hayek, The Road to Serfdom (Chicago: University of Chicago Press, 1994), pp. 132-33.
26. Ibid., p. 133.
27. Ibid., p. 134.
28. For example, Article 6 of the ICESCR provides: 1. The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right. 2. The steps to be taken by a State Party to the present Covenant to achieve the full realization of this right shall include technical and vocational guidance and training programmes, policies and techniques to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedoms to the individual. Article 11(1) provides as follows: The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.
29. See, e.g., Cass R. Sunstein, After the Rights Revolution: Reconceiving the Regulatory State (Cambridge: Harvard University Press, 1990).
30. "For, the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself." Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886). The connection with Locke's Second Treatise should be evident. See, e.g., John Locke, Second Treatise [1690], ch. 2, in Locke, Two Treatises of Government (Cambridge: Cambridge University Press, 1960).
31. "For, the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself." Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886). The connection with Locke's Second Treatise should be evident. See, e.g., John Locke, Second Treatise [1690], ch. 2, in Locke, Two Treatises of Government (Cambridge: Cambridge University Press, 1960).
32. Locke, Second Treatise, section 6: "But though this [a world of free, equal, and independent individuals] be a State of Liberty, yet it is not a State of Licence. . . ."
33. See Aristotle, Politics, trans. Benjamin Jowett (New York: Random House, 1943), 1256b40-1258b8.
34. For discussion and examples, see Bowers v. Hardwick, 478 U.S. 186 (1986); Forrest McDonald, Novus Ordo Seclorum: The Intellectual Origins of the Constitution (Lawrence: University Press of Kansas, 1985). For the continuation of economic and morals regulation in the nineteenth century, see William J. Novak, The People's Welfare: Law and Regulation in Nineteenth- Century America (Chapel Hill: University of North Carolina Press, 1996).
35. For discussion and examples, see Bowers v. Hardwick, 478 U.S. 186 (1986); Forrest McDonald, Novus Ordo Seclorum: The Intellectual Origins of the Constitution (Lawrence: University Press of Kansas, 1985). For the continuation of economic and morals regulation in the nineteenth century, see William J. Novak, The People's Welfare: Law and Regulation in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1996).
36. For a discussion, see Barry Nicholas, An Introduction to Roman Law (Oxford: Clarendon Press, 1962), pp. 153-57.
37. Frederic W. Maitland, The Forms of Action at Common Law, ed. A. H. Chaytor and W. J. Whittaker (Cambridge: Cambridge University Press, 1936), Lecture III.
38. Loretto v. Teleprompter, 458 U.S. 419 (1982).
39. See, e.g., Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992).
40. Hayek, The Road to Serfdom, p. 141. For a similar recognition of the risks of political guarantees, see David Schmidtz, "Guarantees," Social Philosophy and Policy, vol. 14, no. 2 (Summer 1997), pp. 1-19.
41. Hayek, The Road to Serfdom, p. 141. For a similar recognition of the risks of political guarantees, see David Schmidtz, "Guarantees," Social Philosophy and Policy, vol. 14, no. 2 (Summer 1997), pp. 1-19.
42. In finance theory, the meaning of the term "leverage" is analogous to its physical meaning. The use of borrowed money allows an owner to leverage (i.e., extend) his investment beyond what it would otherwise be. A highly leveraged firm is, therefore, one which has a high debt-to-equity ratio. The risk of using a long pole to leverage the force of a large rock is that the pole may break. The financial analogue is bankruptcy.
43. For one among many demonstrations of this point, see Lucian Arye Bebchuk and Jesse M. Fried, "The Uneasy Case for the Priority of Secured Claims in Bankruptcy," Yale Law Journal, vol. 105, no. 4 (January 1996), pp. 873-75.
44. Agricultural Adjustment Act of 1938, Pub. L. No. 75-430, 52 Stat. 31 (1938).
45. For a general account, see Steven Hayward and Erik Peterson, "The Medicare Monster: A Cautionary Tale," Reason, vol. 24, no. 8 (January 1993), pp. 18-25.
46. Age Discrimination in Employment Act, 29 U.S.C. §623(a), first passed in 1967.
47. Ibid., § 623(f)(1).
48. The point was made by Justice Oliver Wendell Holmes in one of his famous aphorisms (in Union Pacific Railway Co. v. Public Service Commission of Missouri, 248 U.S. 67, 70 [1918]): It is always in the interest of a party under duress to choose the lesser of two evils. But the fact that a choice was made according to interest does not exclude duress. It is the characteristic of duress properly so called.
49. Note that these same arguments apply to the risks of special-interest legislation set out above (in Section IIB).
50. In this analysis I ignore the role of transaction costs. Speaking generally, these must be smaller than the potential for gain in order for the transaction to go forward. In the example in the text, the voluntary exchange will not take place if the transaction costs exceed $40. And if they are less than $40, they will still reduce the overall extent of the gain. Either way, we should work to reduce them. For the obligatory discussion, see Ronald H. Coase, "The Problem of Social Cost," Journal of Law and Economics, vol. 3 (1960), pp. 1-44.
51. For my earlier analysis of this issue, see Richard A. Epstein, "Unconscionability: A Critical Reappraisal," Journal of Law and Economics, vol. 18 (1975), pp. 293-315, criticizing John Dalzell, "Duress by Economic Pressure I," North Carolina Law Review, vol. 20 (1942), pp. 237-77, and John P. Dawson, "Economic Duress - An Essay in Perspective," Michigan Law Review, vol. 45 (1947), pp. 253-90.
52. For my earlier analysis of this issue, see Richard A. Epstein, "Unconscionability: A Critical Reappraisal," Journal of Law and Economics, vol. 18 (1975), pp. 293-315, criticizing John Dalzell, "Duress by Economic Pressure I," North Carolina Law Review, vol. 20 (1942), pp. 237-77, and John P. Dawson, "Economic Duress - An Essay in Perspective," Michigan Law Review, vol. 45 (1947), pp. 253-90.
53. For my earlier analysis of this issue, see Richard A. Epstein, "Unconscionability: A Critical Reappraisal," Journal of Law and Economics, vol. 18 (1975), pp. 293-315, criticizing John Dalzell, "Duress by Economic Pressure I," North Carolina Law Review, vol. 20 (1942), pp. 237-77, and John P. Dawson, "Economic Duress - An Essay in Perspective," Michigan Law Review, vol. 45 (1947), pp. 253-90.
54. Robert L. Hale, "Coercion and Distribution in a Supposedly Non-Coercive State," Political Science Quarterly, vol. 38 (1923), pp. 470-94. Hale himself was a distinguished professor of law at Columbia University whose writing frequently dealt with the scope of coercion in constitutional-law and private-law frameworks. See, e.g., Robert L. Hale, "Unconstitutional Conditions and Constitutional Rights," Columbia Law Review, vol. 35 (1935), pp. 321-59. For my critique of this position, see Richard A. Epstein, Bargaining with the State (Princeton: Princeton University Press, 1993), pp. 39-19.
55. Robert L. Hale, "Coercion and Distribution in a Supposedly Non-Coercive State," Political Science Quarterly, vol. 38 (1923), pp. 470-94. Hale himself was a distinguished professor of law at Columbia University whose writing frequently dealt with the scope of coercion in constitutional-law and private-law frameworks. See, e.g., Robert L. Hale, "Unconstitutional Conditions and Constitutional Rights," Columbia Law Review, vol. 35 (1935), pp. 321-59. For my critique of this position, see Richard A. Epstein, Bargaining with the State (Princeton: Princeton University Press, 1993), pp. 39-19.
56. Robert L. Hale, "Coercion and Distribution in a Supposedly Non-Coercive State," Political Science Quarterly, vol. 38 (1923), pp. 470-94. Hale himself was a distinguished professor of law at Columbia University whose writing frequently dealt with the scope of coercion in constitutional-law and private-law frameworks. See, e.g., Robert L. Hale, "Unconstitutional Conditions and Constitutional Rights," Columbia Law Review, vol. 35 (1935), pp. 321-59. For my critique of this position, see Richard A. Epstein, Bargaining with the State (Princeton: Princeton University Press, 1993), pp. 39-19.
57. Thomas Nixon Carver, Principles of National Economy (New York: Ginn and Co., 1921).
58. Hale, "Coercion and Distribution," p. 471.
59. This theme also arises in contract literature. See Grant Gilmore, The Death of Contract (Columbus: Ohio State University Press, 1974); Lawrence Friedman, Contract Law in America (Madison: University of Wisconsin Press, 1965); and Patrick S. Atiyah, The Rise and Fall of Freedom of Contract (Oxford: Oxford University Press, 1979). For my response, see Richard A. Epstein, "Contract Large and Contracts Small: Contract Law Through the Lens of Laissez- Faire," University of Chicago Law and Economics Working Paper Series.
60. This theme also arises in contract literature. See Grant Gilmore, The Death of Contract (Columbus: Ohio State University Press, 1974); Lawrence Friedman, Contract Law in America (Madison: University of Wisconsin Press, 1965); and Patrick S. Atiyah, The Rise and Fall of Freedom of Contract (Oxford: Oxford University Press, 1979). For my response, see Richard A. Epstein, "Contract Large and Contracts Small: Contract Law Through the Lens of Laissez- Faire," University of Chicago Law and Economics Working Paper Series.
61. This theme also arises in contract literature. See Grant Gilmore, The Death of Contract (Columbus: Ohio State University Press, 1974); Lawrence Friedman, Contract Law in America (Madison: University of Wisconsin Press, 1965); and Patrick S. Atiyah, The Rise and Fall of Freedom of Contract (Oxford: Oxford University Press, 1979). For my response, see Richard A. Epstein, "Contract Large and Contracts Small: Contract Law Through the Lens of Laissez- Faire," University of Chicago Law and Economics Working Paper Series.
62. This theme also arises in contract literature. See Grant Gilmore, The Death of Contract (Columbus: Ohio State University Press, 1974); Lawrence Friedman, Contract Law in America (Madison: University of Wisconsin Press, 1965); and Patrick S. Atiyah, The Rise and Fall of Freedom of Contract (Oxford: Oxford University Press, 1979). For my response, see Richard A. Epstein, "Contract Large and Contracts Small: Contract Law Through the Lens of Laissez-Faire," University of Chicago Law and Economics Working Paper Series.
63. Hale, "Coercion and Distribution," pp. 472-73.
64. Ibid., p. 474.
65. Ibid.
66. Allnut v. Inglis, 12 East 525, 104 Eng. Rep. 206 (K.B. 1810). The common law's concern with monopoly most obviously extended to cases of state-created monopolies. But it also carried over to the less frequent cases of natural monopolies that were stable, not because they were propped up by state power, but because they were the initial entrant in a field that was characterized by uniform declining marginal costs of production over the relevant range of output. That low marginal cost of production would block the second entrant into the field unless he could capture all of the market.
67. John Stuart Mill, On Liberty (1859; Oxford: Oxford University Press, 1991).