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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.


Law | Property Law and Real Estate

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Creative Commons Attribution-NonCommercial 4.0 International License
This work is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License


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