Epstein (b. 1943) is today's most important legal thinker for liberty. The James Parker Hall Distinguished Service Professor at the University of Chicago Law School, Epstein has written books which are having a significant influence among lawyers and are just beginning to get wider recognition.

His first big book was Takings (1985), about the Fifth Amendment, which everybody knows says individuals can't be forced to testify against themselves. Most people had forgotten that the Fifth Amendment also says that when government takes private property, it must pay just compensation. Traditionally, a "taking" has been interpreted to mean those cases where the government takes title to property. Epstein maintained that just compensation is also owed when government regulations reduce or destroy the value of private property, even though an individual retains title. The idea here is that if a regulation is supposed to be in the public interest, benefiting everybody, the costs should be borne by everybody, not inflicted on a few hapless property owners. Just compensation should be paid those individuals out of taxes. Well, if government had to pay for the harm it causes through zoning ordinances, rent controls, environmental regulations and thousands of other laws, regulations and ordinances, there wouldn't be money left for anything else, and the do-gooders know it. The Supreme Court has taken a few tentative steps to apply Epstein's ideas.

The sequel to Takings is Bargaining with the State (1993) which proposes to limit government power by ending the conditions which have long been imposed when government gives away taxpayer money, grants tax exempt status, and other favors. Such conditions are a major way the feds control the behavior of states, educational institutions, contractors, employers and private individuals who receive the favors. Epstein says that if the government is going to give away anything, it should be open to everyone without conditions. But then politicians would have a much harder time paying off campaign contributors, and interest groups wouldn't have nearly as much reason to lobby for goodies that could end up going to their competitors, which is the whole point. The book is an ingenious challenge to incentives for government spending.

In Forbidden Grounds: The Case Against Employment Discrimination Laws (1992), Epstein showed how these "anti-discrimination" laws backfire badly. Namely, they restrict freedom of choice, provoke racial conflict, encourage more devious forms of discrimination and undermine standards of merit. He makes clear that competitive markets do better than government controls in every respect.

In Mortal Peril: Our Inalienable Right to Health Care? (1997), Epstein addressed a hornet's nest of sensitive issues including the plight of people without health insurance, the coming bankruptcy of Medicare, the right to die, the practice of selling babies and the market for bodily organs. He explains how well-intended government regulations have made things much worse for the people supposedly being helped. He tells how powerful officials and their accomplices silenced dissenters who expressed concern that government-run health care would suppress individual rights.

Epstein is among the few authors who have described a comprehensive vision for a free society. He did it in two important books. The first, Simple Rules for a Complex World (1995), began by rebutting the conventional view that government must get bigger as society becomes more complex. He showed that the same objections levelled against socialist nationalization apply to government regulation, namely that officials can never possess all the information needed for a successful society. A great deal of legal complexity, he pointed out, has everything to do with bureaucratic scheming and nothing to do with solving social problems, like Internal Revenue Service rules treating interest 25 different ways. Epstein went on to identify six legal principles which provide a legal framework for a free society. He explained how these principles cover various issues such as the environment, and he answers common objections.

Principles for a Free Society: Reconciling Individual Liberty with the Common Good (1998) mounted a sturdy answer to all those intellectuals who claimed that laissez faire promotes greed, favors the rich and grinds under the poor and helpless. He showed that social problems are invariably made worse by departing from seemingly harsh laissez faire principles like personal responsibility. He observed, for instance, that to the degree wealth is redistributed in the name of helping the poor, production is reduced, and this harms everybody including the poor. Government welfare, such as Social Security, has the effect of making affluent people (seniors in this case) better off at the expense of others (especially the working poor). Epstein explained that while natural law provides a moral basis for liberty, it has had the practical consequence of benefiting almost everybody.

Books & Tapes

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