One step beyond nozick's minimal state: The role of forced exchanges in political theory

Social Philosophy and Policy

Volumn 22, Issue 1, 2005, Pages 286-313

  Epstein, Richard A ^a  

^a UNIVERSITY OF CHICAGO LAW SCHOOL   (United States)

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EID: 12344302162     PISSN: 02650525     EISSN: None     Source Type: Journal    
DOI: 10.1017/S0265052505041117     Document Type: Review

References (47)

1. Robert Nozick, 'Anarchy, State, and Utopia (New York: Basic Books, 1974). Hereinafter, ASU.
2. For a nice summary of the argument, to which I shall revert later, see David Miller, "The Justification of Political Authority," in David Schmidtz, ed., Robert Nozick (Cambridge: Cambridge University Press, 2002), 10.
3. ASU, chap. 7, "Distributive Justice," 149-231.
4. Ibid., 169.
5. For my elaboration of these rules, see Richard A. Epstein, Simple Rules for a Complex World (Cambridge, MA: Harvard University Press, 1995).
6. ASU, 149-82.
7. Ibid., 141 and 182.
8. Ibid., 151.
9. Ibid., 152.
10. Ibid., 79 (italics in original).
11. David Hume, A Treatise of Human Nature (1739), ed. L. A. Selby-Bigge (Oxford: Clarendon Press, 1888), 501-25.
12. Justinian's Institutes, ed. and trans. Peter Birks and Grant McLeod (Ithaca, NY: Cornell University Press, 1987).
13. See Mancur Olson, The Logic of Collective Action (Cambridge, MA: Harvard University Press, 1965).
14. Note that the difficulty in providing public goods cannot be overcome by observing that individuals commonly make charitable contributions to strangers that seem impossible from the perspective of narrow self-interest. With charity, it is possible to target beneficiaries and to achieve one's aims without the cooperation of others. Contributions to public goods do not move in the direction of some preferred beneficiary and thus easily tend to break down.
15. ASU, 80.
16. See Richard A. Epstein, Takings: Private Property and the Power of Eminent Domain (Cambridge, MA: Harvard University Press, 1985): 334-38, criticizing Nozick on just these grounds.
17. For a general discussion, see Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992).
18. ASU, 282.
19. See Richard A. Epstein, "Can Anyone Beat the Flat Tax?" Social Philosophy and Policy 19, no. 1 (2002): 140-71.
20. ASU, 169.
21. John Locke, Second Treatise of Government, in Two Treatises of Government, ed. Peter Laslett (Cambridge: Cambridge University Press, 1989), 363.
22. Adam Smith, The Wealth of Nations (New York: Modern Library, 1937), 777.
23. Friedrich A. Hayek, The Constitution of Liberty (Chicago, IL: University of Chicago Press, 1960), 314.
24. See U.S. Constitution, Amendment V: "nor shall private property be taken for public use, without just compensation." For the moment at least, I put aside genuine questions associated with the reach of the "police power." That term, which appears nowhere in the Constitution, refers to the right of the state to pass regulations in order to advance "the safety, health, morals, and general welfare" of the public at large. Within the takings framework here, the police power sets out those conditions that justify the taking of property, without just compensation. For one discussion of the evolution of the police power, see William J. Novak, The People's Welfare: Law and Regulation in Nineteenth Century America (Chapel Hill, NC: University of North Carolina Press, 1996).
25. For my arguments on this point, see Richard A. Epstein, "Luck," Social Philosophy and Policy 6, no. 1 (1988): 17-38.
26. John Locke, Second Treatise of Government, ed. C. B. Macpherson (Indianapolis, IN: Hackett Publishing Co., 1980), 18-30.
27. See Ronald H. Coase, "The Problem of Social Cost," Journal of Law and Economics 3, no. 1 (1960): 1-44.
28. See Richard A. Epstein, "On the Optimal Mix of Private and Common Property," Social Philosophy and Policy 11, no. 2 (1994), 17-41.
29. A philosopher might wish to stress that Locke at least seems to require that labor be "mixed" with possession in order to acquire ownership. This requirement strikes me as problematic if only because bare possession is needed in order to gain the right to mix the labor with the external thing. Locke seems to say as much when he notes that if picking the acorn does not establish ownership, no further act, such as boiling it, will.
30. Miller, "The Justification of Political Authority," 16-17.
31. See, for example, Telecommunications Act of 1996, 47 U.S.C. § 252 (2000).
32. ASU, 119.
33. The original version of the statute dates from 1677 in England: 29 Charles II, c. 3 (1677). Variations of the statute are enforced in every state in the United States.
34. See, for example, Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978), where a set of elusive rationales were used to justify the landmark preservation statutes that wiped out the air rights that the Penn Central Company had over Grand Central Station. For my critique of the test, see Richard A. Epstein, "The Ebbs and Flows in Takings Law: Reflections on the Lake Tahoe Case," Cato Supreme Court Review 1, no. 1 (2002): 5-30.
35. See, for example, Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483 (1955).
36. John Rawls, A Theory of Justice (Cambridge, MA: Belknap Press of Harvard University Press, 1971), 12 and 136-42.
37. Richard A. Epstein, "Deconstructing Privacy: And Putting It Back Together Again," Social Philosophy and Policy 17, no. 2 (2000): 1-24.
38. For a more detailed discussion, see Richard A. Epstein, "Nuisance Law: Corrective Justice and Its Utilitarian Constraints," Journal of Legal Studies 8, no. 1 (1979): 49-102.
39. For one such example, see Ohio Oil Co. v. Indiana, 177 U.S 190 (1899), which introduced a complex sharing arrangement between oil and gas producers that systematically favored the latter, who were in-state interests.
40. For one exhaustive overview of the relevant trade-offs, see William M. Landes and Richard A. Posner, The Economic Structure of Intellectual Property Law (Cambridge, MA: Belknap Press of Harvard University Press, 2003); or see my account of how patents and copyrights should be understood in a world with forced exchanges, "Intellectual Property: Old Boundaries and New Frontiers," Indiana Law Journal 76, no. 4 (2001): 803-27.
41. For one exhaustive overview of the relevant trade-offs, see William M. Landes and Richard A. Posner, The Economic Structure of Intellectual Property Law (Cambridge, MA: Belknap Press of Harvard University Press, 2003); or see my account of how patents and copyrights should be understood in a world with forced exchanges, "Intellectual Property: Old Boundaries and New Frontiers," Indiana Law Journal 76, no. 4 (2001): 803-27.
42. Sonny Bono Copyright Term Extension Act, Pub. L. No. 105-298, 112 Stat. 2827 (1998). The act was upheld by the United States Supreme Court in Eldred v, Ashcroft, 537 U.S. 186 (2003).
43. ASU, 141 and 182.
44. See ibid., 270-71, for Nozick's perceptive analysis of how rent control works an expropriation.
45. See, for example, Steele v. Louisville & Nashville Railroad Co., 323 U.S. 192 (1944) (new duty of fair representation to counter racial discrimination against black firemen).
46. ASU, ix.
47. For one famous attempt at inflicting such a defeat, see Robert L. Hale, "Coercion and Distribution in a Supposedly Non-Coercive State," Political Science Quarterly 38, no. 3 (1923): 470-94.