January 22, 2012


Richard A. Epstein, Design for Liberty: Private Property, Public Administration, and the Rule of Law (Cambridge, Massachusetts, & London, England: Harvard U. Press, 2011) ("Without question, the most profound domestic change in the United States from the beginning of the twentieth century through the present time has been the vast expansion of government under the influence of the progressive worldview that received its highest expression in President Franklin D. Roosevelt's New Deal. Progressive thought was no small perturbation from the views of government that had previously defined the American legal tradition. Indeed, the progressive movement defined itself in opposition to once-dominant classical liberal theories of government that stressed the dominance of private property, individual liberty, and limited. government." Id. at 1. "This short book offers one effort to resurrect the twin pillars of an earlier structure. On the substantive side, it urges a return to the classical liberal views on property and contract. On the procedural side, it cautions that the expansion of the administrative state, with its civil and criminal sanctions, is deeply in conflict with traditional values of the rule of law." Id. at 6. "The trick is to develop management practices that allow for the needed discretion to be invested in the right individuals, subject to the right level of supervision and control. Therefore, the key point in dealing with the rule of law is to make sure that the tasks that are given to government are both limited and well-defined, and to let the people who are in charge have the degree of flexibility needed to carry out their task. If there is one feature of public administration of law that I attack in this book, it is the peculiar reversal that takes place when courts are willing to 'defer' to administrative agencies in the interpretation of the legal language found in statutes and regulations, but feel compelled to flyspeck any government administration decision on where to put a road or to open a school, under the conceit that any decision that does not consider all the right factors, and that ignores all the irrelevant ones, is, in virtue of this fact alone, arbitrary and capricious. No system of extensive judicial oversight on management decisions can displace the need for the sorts or internal checks that good management organizations develop on their own." Id. at 7. "Older writings used to say that the system of private property abhors a vacuum. This meant that once politics is allowed to fill in the gaps, huge amounts of energy that should be directed toward productive activities will be turned to the grim task of seeing how to take advantage of the political vulnerabilities of others. Every society has to suffer that drag to some degree. But once those forces are unleashed and celebrated, it is only a question of time as to how long a political order can prosper. Historically, we witness a constant battle between the forces of science and technology that expand the social pie, and the forces of faction and politics that eat away at those gains. Once upon a time, I was confident that the forces of growth and prosperity could maintain the upper hand. But watching the flailing of the political actors, and the drift of our economic system, I am no longer so sure." Id. at 192. Agree or disagree with Richard Epstein, he in a thinker to whom all serious political, social, legal thinkers must come to terms. Right or wrong, reading Epstein always provides much food for thought. And agreeing or disagreeing with him, who cannot share his sense of despair regarding the "flailing of the political actors, and the drift of our economic system"?).