Classical Liberal Property and the Question of Institutional Choice

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Thomas W. MerrillFollow

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Abstract

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.

Recommended Citation

Merrill, Thomas W. (2021) "Classical Liberal Property and the Question of Institutional Choice," Journal of Legal Studies: Vol. 50: No. 3, Article 2.
Available at: https://chicagounbound.uchicago.edu/jls/vol50/iss3/2