Learning Nothing and Forgetting Nothing: Richard Epstein and the Takings Clause

Abstract

You probably didn't know it, but workers' compensation is unconstitutional. So are welfare laws, Social Security, the progressive income tax, minimum wage and maximum hour legislation, the National Labor Relations Act, and almost all zoning. I discovered all this from reading Richard Epstein's new book on the takings clause. In fact, I learned that the New Deal was a big mistake and now we're up to our ears in one darn unconstitutional confiscation of property after another. Richard Epstein is a well-respected professor of tort law at the University of Chicago Law School. In addition to being the author of an excellent casebook on the law of torts, Epstein has, over a number of years, worked out an elaborate theory of legal and political obligation. In many ways, this book is his crowning achievement. Although I strongly disagree with its assumptions, methodology, and conclusions (as I shall make abundantly clear), this work brings many of the themes of Epstein's earlier writings together into a satisfying whole. It combines his obvious love of the common law (and especially the common law of torts) with his more recent interests in constitutional law and property.