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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Thomas W. Merrill,
Classical Liberal Property and the Question of Institutional Choice,
J. Legal Stud.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/3386