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The 'Necessary' History of Property and Liberty


Richard A. Epstein


New York University School of Law; Stanford University - Hoover Institution on War, Revolution and Peace; University of Chicago - Law School


Chapman Law Review, Introduction to Volume 6, 2003

Abstract:     
The constitution contains many disparate structural provisions and guarantees of individual rights: federalism questions under the commerce clause start in very different places from the protection of speech, religion or property. Yet the differences are often misleading. In each case the structure of the argument is identical: what is the basic interest that is protected, what justifications can be posed for its limitation, with or without compensation. Where an intermediate or strict standard of review is proposed, the nature of these inquiries all collapse to the single question of whether government intervention overcomes some market imperfection relating to negative externalities (force and fraud) or monopoly and coordination problems. Where the standard of review is reduced to rational basis, then the structure of basic rights and the justifications for their restriction becomes ill-formed and ad hoc. The conceptual defense of the Lochner era is much stronger on structural grounds than its manifold critics commonly suppose.

Number of Pages in PDF File: 48

Keywords: U.S. constitution, individual rights

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Date posted: April 22, 2003  

Suggested Citation

Epstein, Richard A., The 'Necessary' History of Property and Liberty. Chapman Law Review, Introduction to Volume 6, 2003. Available at SSRN: http://ssrn.com/abstract=396600 or http://dx.doi.org/10.2139/ssrn.396600

Contact Information

Richard A. Epstein (Contact Author)
New York University School of Law ( email )
40 Washington Square South
New York, NY 10012
United States
(212) 992-8858 (Phone)
(212) 995-4894 (Fax)
Stanford University - Hoover Institution on War, Revolution and Peace
Stanford, CA 94305-6010
United States
University of Chicago - Law School ( email )
1111 E. 60th St.
Chicago, IL 60637
United States
773-702-9563 (Phone)
773-702-0730 (Fax)
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