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Harvard University Press, Jan 1, 1985 - Law - 362 pages
2 Reviews

If legal scholar Richard Epstein is right, then the New Deal is wrong, if not unconstitutional. Epstein reaches this sweeping conclusion after making a detailed analysis of the eminent domain, or takings, clause of the Constitution, which states that private property shall not be taken for public use without just compensation. In contrast to the other guarantees in the Bill of Rights, the eminent domain clause has been interpreted narrowly. It has been invoked to force the government to compensate a citizen when his land is taken to build a post office, but not when its value is diminished by a comprehensive zoning ordinance.

Epstein argues that this narrow interpretation is inconsistent with the language of the takings clause and the political theory that animates it. He develops a coherent normative theory that permits us to distinguish between permissible takings for public use and impermissible ones. He then examines a wide range of government regulations and taxes under a single comprehensive theory. He asks four questions: What constitutes a taking of private property? When is that taking justified without compensation under the police power? When is a taking for public use? And when is a taking compensated, in cash or in kind?

Zoning, rent control, progressive and special taxes, workers' compensation, and bankruptcy are only a few of the programs analyzed within this framework. Epstein's theory casts doubt upon the established view today that the redistribution of wealth is a proper function of government. Throughout the book he uses recent developments in law and economics and the theory of collective choice to find in the eminent domain clause a theory of political obligation that he claims is superior to any of its modern rivals.


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Review: Takings: Private Property and the Power of Eminent Domain

User Review  - Charles David Edinger - Goodreads

TAKINGS by Dr. Richard A. Epstein is without question one of the most important books of recent history in the field of legal and Constitutional theory as they relate to private property and eminent ... Read full review

Review: Takings: Private Property and the Power of Eminent Domain

User Review  - Michael - Goodreads

I know a lot of people that love, or would love, this book. I also know a lot of people who would completely dismiss it. Those who come to the table thinking that each person has an inalienable right ... Read full review


A Tale of Two Pies
Hobbesian Man Lockean World
The Integrity of Constitutional Text
Takings Prima Facie
Takings and Torts
Partial Takings The Unity of Ownership
Possession and Use
Rights of Disposition and Contract
Public Use and Just Compensation
Public Use
Explicit Compensation
Implicit InKind Compensation
Property and the Common Pool

Taking from Many Liability Rules Regulations and Taxes
Justifications for Takings
The Police Power Ends
The Police Power Means
Consent and Assumption of Risk
Transfer Payments and Welfare Rights
Philosophical Implications
Index of Cases
General Index

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About the author (1985)

Born in 1943, Richard A. Epstein graduated from Columbia in 1964 with a degree in philosophy. He continued his education at Oxford, earning a B.A. in law in 1966, and from there attended Yale, where he received an LL.B. in 1968. Following graduation Epstein joined the faculty at the University of Southern California, teaching there until 1972. He became a regular member of the faculty at the University of Chicago in 1973, where he was named James Parker Hall Professor in 1982 and Distinguished Service Professor in 1988. Richard Epstein writes extensively concerning the law. His works include Simple Rules for a Complex World (1995), Bargaining with the State (1993) and Forbidden Grounds: The Case Against Employment Discrimination Laws (1992).

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