Where antitrust went wrong


Richard A. Epstein: Where antitrust went wrong

By Richard A. Epstein

Published: August 4 2004 20:45 | Last updated: August 4 2004 20:45

Tom Hazlett’s recent lively exposition of the Google wars represents sound economics down to the minibyte of additional storage space. My purpose in this followon column is not to offer additional praise for the curative power of new entry for economic malaise, but to explain briefly how US antitrust law has gone

awry in its Section 2 cases, before, during and even after the cyberspace revolution.

To us libertarian types the antitrust laws face an uphill fight even under the best of circumstances.

The most dangerous threats to market innovation are government restrictions on entry, which are always difficult to erode even over time. Lamentably, state power has, time after time, been put squarely behind one party to the competitive struggle.

We need think only of the various agricultural pricefixing arrangements that are as much of the farm landscape as tractors and trees.

But that policy is a grievous social error. The principle of first possession, which is a fine rule insofar as it assigns ownership rights of a vacant plot of land to the first occupier, is distorted beyond recognition if the first person to tap into a particular market can keep it for himself in perpetuity.

In those cases where there are no patents or copyrights at stake, it makes no economic sense to support a legal regime that gives consumers no more right to determine their business partners than a piece of sod has to decide who should be its owner.


Remember, the logic of exclusivity cuts two ways: after the fact, it is nice to ask the innovator to share its inventions so that all can obtain it at low cost. But this policy of equal access retards the introduction of that innovation in the first place. In this regard, the policy tradeoffs of the antitrust law tend to merge with that of patents. We cannot get a firstbest solution that guarantees both optimal innovation and optimal sharing simultaneously.
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Principles for a Free Society: Reconciling Individual Liberty with the Common Good

Principles for a Free Society: Reconciling Individual Liberty with the Common Good

by Richard A. Epstein


Chapter One

Natural Law: The Utilitarian Connection

My purpose in this volume is, after a fashion, to square a legal circle. From the earliest times, legal and political writers have worked hard to reconcile the demands for individual liberty with those for the common good. At one level, the cynical and weary among us could dismiss their project as an impossibility because scarcity precludes the simultaneous satisfaction of all desires, be they practical or conceptual. Since it is not possible to make all people happy all of the time, we should give up this misguided quest for some holy grail and settle for a less grandiose pragmatic shuffle.
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How Much Privacy Do We Really Want?


American privacy laws are often contradictory and wrongheaded. Richard A. Epstein explains how to fix them.


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The Libertarian Quartet


REASON * January 1999

The Libertarian Quartet

By Richard A. Epstein

\"My disagreement with Barnett is not over the primacy of individual liberty as the end which government serves. Rather, it is over the seeming paradox of whether liberty must be limited so that it may be preserved. Barnett sees little place for any such limitations within a system of liberty, and by implication in a system of libertarian thought. My view is that, however indispensable liberty is for the advancement of human welfare, it must, like all great principles, be hedged in by other principles that flesh out a more complete legal system. I see a limited but irreducible function of government in responding to the problems of monopoly and public goods, while Barnett thinks these concerns require no concessions toward a larger state\"
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Federalism and Property Rights

Testimony before the Senate Judiciary Subcommittee

on the Constitution, Federalism and Property Rights

prepared by Richard A. Epstein

on behalf of the Americans for Computer Privacy

\"We live in a world with great potential; but it is also a world of great risks. We must do the best that we can to minimize the risks. But that requires us to consider the scenarios in which government regulation does harm as well as those in which it does good, and to make the best and most responsible decision that we can on the strength of all available information. On matters such as these it is difficult to separate the constitutional from the practical considerations, and at this stage in the inquiry, it is far from clear that we should make that separation at all. The various proposals before this Committee on mandatory key access pose far more risks than they eliminate. The proposal should therefore be rejected both for the risks that it creates for private transmissions of electronic information, and for the dangers that it poses to the constitutional protections for individual liberty that have long helped to keep this nation both free and strong. \"

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Who owns the Genome?

Who Owns the Genome?

By Richard Epstein


Should private companies be granted patents on the human genome? Richard Epstein on a debate that he argues has been fraught with needless misunderstanding.

\"The fundamental questions of property rights are simple yet profound: What things may be reduced to private ownership, and how is that best done? From the earliest times, such resources as air and water were treated as part of the common heritage of mankind, which precluded any individual from claiming outright ownership of these resources, which all were in a position to use. Now we must decide the extent to which intellectual property should be governed by a similar common property regime: Can ideas, inventions, and substances be made private or must they be left in the public domain? And if private, for how long? The answers will have a huge impact on research and development of the human genome. \"

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Rawls Remembered

Rawls Remembered

An appreciation from the Right.

By Richard A. Epstein


”Many people have extraordinary personal virtues without being worldclass intellectuals. So why was Rawls so famous? In one sense, his name is frequently linked with Robert Nozick, also of the Harvard philosophy department, who passed away this past January; much of the libertarian position that Nozick took in Anarchy, State, and Utopia (1974) was written in explicit opposition to Rawls\'s work. In a sense these two great books could hardly be more different. Rawls wrote at a very abstract level, paid little attention to the general literature, and often circled back on a point countless numbers of times, never quite reaching closure. As a student of Kant, he regarded himself as writing in opposition to crude utilitarian theories, and wanted to develop an abstract engine that would allow him to flesh out the origins of political obligations, that is, those obligations that justify the creation of the state, and its use of force against ordinary individuals, while preserving their individual dignity. He did not trouble himself with the cute anecdotes, wonderful asides, or weird hypotheticals that made Nozick\'s work so delightfully unconventional in academic circles.”

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Impractical Equality

Impractical Equality

By Richard A. Epstein



\"Sovereign Virtue The Theory and Practice of Equality, by Ronald Dworkin, Cambridge Harvard University Press, 505 pages, $35.00

Throughout his long and distinguished career as an academic lawyer and political philosopher, Ronald Dworkin has been obsessed with a single theme: to show how an–or, more precisely, his–egalitarian vision of the world can shape the character of our legal, political, social, and market institutions. In Sovereign Equality, Dworkin brings together essays that he has written on this subject over the past 20 years and wages a twofront war to persuade the reader of his grand idea. \"
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Life of Liberty - Robert Nozick



”Nozick\'s great work, Anarchy, State and Utopia, was published in 1974, when he was about 35 years old, to instant critical acclaim. It shows some influence of the Hayekian strands, but in many ways takes off in a very different direction. Nozick did not start his great intellectual journey with homage to custom of past practices. Rather, he gravitated to the rational analysis of which Hayek disapproved. For Nozick the point of departure was that great trope of political and legal philosophy, \"state of nature theory.\" He asked, as had others before him, the first hard question, which is why it is that there should be governments to which ordinary individuals owe any allegiance at all? In contrast to the strong collectivist urges of his time, Nozick pursued a fiendishly clever excursus into just about every corner of the world. Just recently, I have been working on some questions of animal rights, and sure enough, Anarchy, State and Utopia has some wise words of caution about efforts to disregard the interests of animals in dealing with philosophical pursuits.”

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Simple Rules for a Complex World

Excerpt at Amazon

Simple Rules for a Complex World

by Richard A. Epstein

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The Accidental Libertarian


By Richard Epstein


As the center of gravity in legal circles shifted from two party torts and simple contracts to collective action problems of zoning, bankruptcy, labor law and the like, the libertarian modes of property, tort and contract seemed to fit less well. In these transactions, a collective solution was highly vulnerable to holdout and free rider problems which the consequentialist theories did a better job of explaining than the strong libertarian theories that tended to overlook transaction costs and uncertainty in their formulation of legal rules.
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A Complex World Needs Simpler Rules

A Complex World Needs Simpler Rules, Epstein Says


著書”Simple Rules for a Complex World”への書評

\"Simplicity,\" Epstein writes, \"is yet another argument in favor of strong private rights and limited government.\" Epstein prescribes six rules:

1. Individual are selfowners;

2. Individuals may acquire unappropriated property;

3. Individuals may make contracts with other people;

4. The law of tort shall redress violations of individuals such as murder, rape, theft, robbery, and fraud;

5. Private property may be violated only when there is overwhelming necessity;

6. Whenever government violates private property, whether by regulation or outright taking, it must compensate the owner.
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Deconstructing Privacy: And Putting It Back Together Again

Deconstructing Privacy: And Putting It Back Together Again


The growth of the law of privacy has taken chaotic forms. Sometimes claims for privacy work in harmony with classical liberal ideals and on other occasions it works against them. This paper seeks to examine the strength of various claims to privacy within a framework that first asks whether, and if so how, privacy interests may be protected under the framework I defended in Simple Rules for a Complex World (Harvard University Press 1995).

The first stage asks the extent to which privacy interests are protected by libertarian rules directed toward the protection of autonomy, property, and voluntary exchange from the use of force and fraud. It then examines how privacy interests can be usefully protected by the relaxation of these rules in ways that work to the longterm advantage of all individuals.

It then notes that protecting certain forms of privacy (such as that against eavesdropping) fall within this category while other claims for privacy (such as shielding medical records from employers and insurers) do not. Privacy issues can thus be sorted out by the same conceptual devices used to evaluate traditional common law claims in torts and contracts.
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Maverick legal scholar Richard Epstein on property, discrimination, and the limits of state action


Maverick legal scholar Richard Epstein on property, discrimination, and the limits of state action

Interviewed by Steve Chapman

”Richard A. Epstein, the James Parker Hall Distinguished Service Professor of Law at the University of Chicago, is one of the most provocative, controversial, and influential legal theorists in the country. ”

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