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Imitations of Libertarian Thought*

Published online by Cambridge University Press:  13 January 2009

Richard A. Epstein
Richard A. Epstein
Affiliation:
Law, The University of Chicago
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Extract

Imitation is said to be the sincerest form of flattery. Socially, the proposition may well be true. But in the world of ideas it is false: to the extent that two incompatible traditions use the same words or symbols to articulate different visions of legal or social organization, imitation begets confusion, not enlightenment. The effects of that confusion, moreover, are not confined to the world of ideas, but spill over into the world of politics and public affairs. Words are more than tools of description: they work also as tools of persuasion and transformation. Let a term have a favorable connotation in one context, and its imitative use can mislead people into thinking that a major departure from established practice is merely the extension or updating of an old principle to deal with new circumstances.

Type
Research Article
Information
Social Philosophy and Policy , Volume 15 , Issue 2 , Summer 1998 , pp. 412 - 436
Copyright
Copyright © Social Philosophy and Policy Foundation 1998

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References

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But the law of nations is common to the whole human race; for nations have settled certain things for themselves as occasion and the necessities of human life required. For instance, wars arose, and then followed captivity and slavery, which are contrary to the law of nature; for by the law of nature all men from the beginning were born free.

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28 For example, Article 6 of the ICESCR provides:

1. The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.

2. The steps to be taken by a State Party to the present Covenant to achieve the full realization of this right shall include technical and vocational guidance and training programmes, policies and techniques to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedoms to the individual.

Article 11(1) provides as follows:

The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.

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37 See, e.g., Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992).Google Scholar

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39 In finance theory, the meaning of the term “leverage” is analogous to its physical meaning. The use of borrowed money allows an owner to leverage (i.e., extend) his investment beyond what it would otherwise be. A highly leveraged firm is, therefore, one which has a high debt-to-equity ratio. The risk of using a long pole to leverage the force of a large rock is that the pole may break. The financial analogue is bankruptcy.

40 For one among many demonstrations of this point, see Bebchuk, Lucian Arye and Fried, Jesse M., “The Uneasy Case for the Priority of Secured Claims in Bankruptcy,” Yale Law Journal, vol. 105, no. 4 (01 1996), pp. 873–75.CrossRefGoogle Scholar

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43 Age Discrimination in Employment Act, 29 U.S.C. §623(a), first passed in 1967.

44 Ibid., § 623(f)(1).

45 The point was made by Justice Oliver Wendell Holmes in one of his famous aphorisms (in Union Pacific Railway Co. v. Public Service Commission of Missouri, 248 U.S. 67, 70 [1918]):Google Scholar

It is always in the interest of a party under duress to choose the lesser of two evils. But the fact that a choice was made according to interest does not exclude duress. It is the characteristic of duress properly so called.

46 Note that these same arguments apply to the risks of special-interest legislation set out above (in Section IIB).

47 In this analysis I ignore the role of transaction costs. Speaking generally, these must be smaller than the potential for gain in order for the transaction to go forward. In the example in the text, the voluntary exchange will not take place if the transaction costs exceed $40. And if they are less than $40, they will still reduce the overall extent of the gain. Either way, we should work to reduce them. For the obligatory discussion, see Coase, Ronald H., “The Problem of Social Cost,” Journal of Law and Economics, vol. 3 (1960), pp. 1–44.CrossRefGoogle Scholar

48 For my earlier analysis of this issue, see Epstein, Richard A., “Unconscionability: A Critical Reappraisal,” Journal of Law and Economics, vol. 18 (1975), pp. 293–315CrossRefGoogle Scholar, criticizing Dalzell, John, “Duress by Economic Pressure I,” North Carolina Law Review, vol. 20 (1942), pp. 237–77Google Scholar, and Dawson, John P., “Economic Duress—An Essay in Perspective,” Michigan Law Review, vol. 45 (1947), pp. 253–90.CrossRefGoogle Scholar

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54 Ibid., p. 474.

55 Ibid.

56 Allnut v. Inglis, 12 East 525, 104 Eng. Rep. 206 (K.B. 1810). The common law's concern with monopoly most obviously extended to cases of state-created monopolies. But it also carried over to the less frequent cases of natural monopolies that were stable, not because they were propped up by state power, but because they were the initial entrant in a field that was characterized by uniform declining marginal costs of production over the relevant range of output. That low marginal cost of production would block the second entrant into the field unless he could capture all of the market.

57 Mill, John Stuart, On Liberty (1859; Oxford: Oxford University Press, 1991).Google Scholar