You will want to listen to the current Liberty Law Talk conversation with Professor Richard Epstein on his new book Design for Liberty: Private Property, Public Administration, and the Rule of Law. Professor Epstein ranges widely in the interview and considers the rules needed to uphold free markets, prosperity, and liberty. One apt observation from Professor Epstein in the discussion is his comparison of America under its current regulatory order to a suicidal patient debating the means of its death. In short, we must re-institute the rule of law, property rights, and a proper manner of public lawmaking if we are to recover our former strength.
The conversation notes that the rule of law requires substantive commitments to generality in application and that it must ensure predictive efficacy if private property and commerce are to flourish. Unfortunately, much of the American Constitution’s attempt to provide these commitments have been lost in the abuses worked by the administrative state and the judiciary’s refusal to scrutinize legislation and rule-making that slights the takings and contract clauses of the Constitution. Professor Epstein also analyzes and discusses the Patient Protection and Affordable Care Act and the Dodd-Frank financial reform bill as egregious extensions of these practices.