Claeys on the History of Epstein (and Takings)

Eric Claeys, Saint Louis University, has posted a new article that appeared recently in the William & Mary Bill of Rights Journal, Takings: An Appreciative Retrospective. Here's the abstract:

This Essay contributed to a conference held at William and Mary Law School at which Richard Epstein was awarded the 2005 Brigham-Kanner Property Rights Prize. The Essay surveys the legacy of Epstein's 1985 book Takings: Private Property and the Power of Eminent Domain.

Doctrinally, Takings was provocative because it provided a persuasive roadmap by which originalist judges might revive natural-law-based property and contract rights often associated with Lochner v. New York. However, this possibility was always somewhat overdrawn. On one hand, most judges and academics are not originalists but functionalists, and they reject Epstein's classical-liberal property theory on substantive grounds. On the other, serious originalists question the textual foundations for Epstein's project, because they doubt that the Takings Clause applies to the states by substantive due process incorporation. This section closes by considering briefly whether Takings' doctrinal claims might be grounded in the original meaning of the Fourteenth Amendment Privileges or Immunities Clause.

Takings has done far more to affect legal property theory. When Takings was written, the U.S. Supreme Court and academic opinion leaders subscribed uniformly to bundle of rights property theory, which had been developed by Legal Realists in the 1920s to facilitate relatively interventionist theories of government. Takings' most important legacy was to make accessible and respectable again, in contemporary legal academic jargon, the unitary theory of property applied by American natural-law jurists and replaced by the Realist bundle of rights. This section criticizes Epstein for using welfarist utilitarianism to replace the natural-law foundations on which Lochner cases and jurists relied to justify the unitary theory of property. But the Essay concludes by praising Epstein for helping contemporary legal academics appreciate the demands that a classical-liberal understanding of freedom places on property.