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Title: Simple Rules for a Complex World by Richard A. Epstein ISBN: 0-674-80821-5 Publisher: Harvard Univ Pr Pub. Date: March, 1997 Format: Paperback Volumes: 1 List Price(USD): $23.50 |
Average Customer Rating: 4.14 (7 reviews)
Rating: 5
Summary: A brilliantly argued fix for our legal system and society
Comment: Richard Epstein takes us back to first principles to construct a legal system based on simple rules as an antidote to the ridiculously complex legal rules of today, with its attendant sky-high cost of administration. He approaches the task from the perspective of maximizing society's gain, and first derives the six basic rules that should underpin all law:
- Self-ownership: Each person owns himself and his labor
- First possession: Property is created, and owned, by the first person that uses it.
- Voluntary exchange
- Protection against agression
- Limited privilege in cases of necessity
- Just compensation when taking private property for public use
Based on these six rules, he then proceeds to analyze existing law, which in many instances harms society instead of protecting it or maximizing gains. These areas include labor laws, environmental legislation, consumer protection, liability, employment discrimination, and many more. Time after time the current system is found wanting.
This book is an indispensable tool in understanding how laws should be made, and guides us back to the kind of society our founders envisioned - a society of free people, able to make their own decisions, free to contract, and free of the yoke of an intrusive and tyrannical state.
Rating: 4
Summary: Cost-benefit analysis in defense of liberty?
Comment: Prof. Richard Epstein has written a brilliant book here. His thesis, at heart, is that the world operates more efficiently and productively when legal rules are "simple" than when they are complex.
In order to elaborate this thesis, he spells out just what he means by "simple," proposes a handful of simple rules himself in various areas of law (property, contracts, torts), and shows how they play out in action (in, e.g., labor contracting, employment discrimination, and products liability). In each case he argues, with much success, that it just wouldn't be efficient to try to improve on the results provided by the "simple" rules.
I especially recommend this book, and Epstein's work generally, to law students. Epstein's knowledge of the law is thorough and deep; One-Ls will find it useful to keep it handy for the whole year.
So why only four stars? Partly because I think cost-benefit analysis is neither an adequate defense of liberty against the regulatory State nor an adequate foundation for law; and partly because Epstein's reliance on such analysis leads him toward (though he stops short of actually arriving at) positions I regard as non- or anti-libertarian.
This review isn't the place to critique consequentialism; for a more or less standard and (I think) decisive critique, the reader is referred to W.D. Ross's _Foundations of Ethics_, which, after sixty-odd years, is still one of the most judicious works on ethics ever written. Suffice it to say that I think we can increase efficiency by pursuing justice, but not vice versa; consequentialism and its subspecies utilitarianism seem to me to be not so much ways of answering moral questions as of never raising them. The "maximization" of happiness is one ground of moral obligation, but not the only one. (And in general, I simply fail to understand recent libertarian interest in an ethical school founded by a man who regarded natural rights as "nonsense" and imprescriptible natural rights as "nonsense upon stilts.")
More serious, from a libertarian point of view, is that Epstein comes within inches of allowing a positive role for antitrust law. Now, mind you, he doesn't _quite_ do so. Indeed he calls for the repeal of the Sherman Act and related legislation, and he opposes the use of government power to distinguish between "corporate combinations that increase market competition" (p. 125) from those that do otherwise. (Note that his understanding of "competition" is thoroughly Chicago-school, a point for which Austrian theorists have quite properly taken him to task.)
Yet his only ground for this latter opposition is merely that government agencies can't _tell_ which are which. Some corporate mergers, he says, may actually increase efficiency. Well, what about those that don't? Is he opposed in principle to such "inefficient" mergers? Would it be okay if the government stepped in to kill a merger that _was_ clearly "inefficient" by Epstein's standards? Or does he think there would be something morally wrong with outlawing certain uses of people's justly acquired property merely because somebody can think of a more "efficient" use?
Unfortunately Epstein's consequentialist approach prevents him from giving the standard libertarian answer. It seems that, for him, the rights of property and trade are dependent not merely on their promotion of "happiness" but, more specifically, on their service to the aggregate good -- where, most significantly, this "good" is apparently defined quite independently of justice.
So I have to knock off one star for inadequate moral foundations. But don't let that stop you from reading the book: Epstein's cost-benefit approach is solid as far as it goes. It just doesn't go far enough.
Rating: 2
Summary: Not So Simple
Comment: Epstein is a brilliant guy with a great idea - simple rules are better for society than complex rules. At least, that's what I think he says. This book is NOT for the masses. Here's a sample from page 30: "Although I have from time to time been of different minds on this proposition, I have now made peace with myself and believe that these consequentialist theories--that is, those which look to human happiness--offer the best justificatory apparatus for demarcating the scope of state power from the area of individual choice." Huh? Mr. Epstein, would you consider a comic book version for the rest of us?
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Title: Principles for a Free Society: Reconciling Individual Liberty With the Common Good by Richard A. Epstein ISBN: 0738208299 Publisher: Perseus Publishing Pub. Date: September, 2002 List Price(USD): $26.00 |
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Title: Skepticism and Freedom: A Modern Case for Classical Liberalism (Studies in Law and Economics) by Richard A. Epstein ISBN: 0226213048 Publisher: University of Chicago Press Pub. Date: June, 2003 List Price(USD): $39.00 |
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Title: Takings: Private Property and the Power of Eminent Domain by Richard A. Epstein ISBN: 0674867297 Publisher: Harvard Univ Pr Pub. Date: March, 1989 List Price(USD): $27.50 |
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Title: Law, Pragmatism, and Democracy : by Richard A. Posner ISBN: 0674010817 Publisher: Harvard Univ Pr Pub. Date: 31 March, 2003 List Price(USD): $35.00 |
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Title: About Law: A Introduction by Tony Honore ISBN: 0198763883 Publisher: Clarendon Pr Pub. Date: January, 1996 List Price(USD): $18.95 |
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