Simple Rules for a Complex World

Rating:
Summary: Not So Simple
Review: Epstein is a brilliant guy with a great idea - simple rules are better for society than complex rules. At least, that's what I think he says. This book is NOT for the masses. Here's a sample from page 30: "Although I have from time to time been of different minds on this proposition, I have now made peace with myself and believe that these consequentialist theories--that is, those which look to human happiness--offer the best justificatory apparatus for demarcating the scope of state power from the area of individual choice." Huh? Mr. Epstein, would you consider a comic book version for the rest of us?

Rating:
Summary: Not So Simple
Review: Epstein is a brilliant guy with a great idea - simple rules are better for society than complex rules. At least, that's what I think he says. This book is NOT for the masses. Here's a sample from page 30: "Although I have from time to time been of different minds on this proposition, I have now made peace with myself and believe that these consequentialist theories--that is, those which look to human happiness--offer the best justificatory apparatus for demarcating the scope of state power from the area of individual choice." Huh? Mr. Epstein, would you consider a comic book version for the rest of us?

Rating:
Summary: Brilliant analysis from the best legal mind in the nation
Review: Epstein's case is simple enough: our society has become quite complex and knowledge is heavily dispersed. The answer to this complexity (in the market world) is more simplicity and less bureaucracy (in the governmental world). Epstein's writing is utterly cogent and his analysis throughout is reasoned and non-dogmatic. Epstein's recurring theme is that we are better served by the common law rules that call for such things as assumption of risk and which uphold the primacy of contract. The proliferation of regulation and bureaucracy has served no one expect lawyers, bureaucrats, and politicians. If one does not know of Epstein the person, one does not know the best legal mind of our time. Anyone not familiar with Epstein should read Takings in which he makes the convincing case that many of the federal social and economic programs implemented during and after the Roosevelt era are unconstitutional because of the "takings clause" of the constitution (the latter half of the 5th amendment). I hope to one day become a lawyer (I'm 19) and Epstein's book has inspired me. I recommend this accessible and fascinating book to all.

Rating:
Summary: Cost-benefit analysis in defense of liberty?
Review: Prof. Richard Epstein has written a brilliant book here. His thesis, at heart, is that the world operates more efficiently and productively when legal rules are "simple" than when they are complex.

In order to elaborate this thesis, he spells out just what he means by "simple," proposes a handful of simple rules himself in various areas of law (property, contracts, torts), and shows how they play out in action (in, e.g., labor contracting, employment discrimination, and products liability). In each case he argues, with much success, that it just wouldn't be efficient to try to improve on the results provided by the "simple" rules.

I especially recommend this book, and Epstein's work generally, to law students. Epstein's knowledge of the law is thorough and deep; One-Ls will find it useful to keep it handy for the whole year.

So why only four stars? Partly because I think cost-benefit analysis is neither an adequate defense of liberty against the regulatory State nor an adequate foundation for law; and partly because Epstein's reliance on such analysis leads him toward (though he stops short of actually arriving at) positions I regard as non- or anti-libertarian.

This review isn't the place to critique consequentialism; for a more or less standard and (I think) decisive critique, the reader is referred to W.D. Ross's _Foundations of Ethics_, which, after sixty-odd years, is still one of the most judicious works on ethics ever written. Suffice it to say that I think we can increase efficiency by pursuing justice, but not vice versa; consequentialism and its subspecies utilitarianism seem to me to be not so much ways of answering moral questions as of never raising them. The "maximization" of happiness is one ground of moral obligation, but not the only one. (And in general, I simply fail to understand recent libertarian interest in an ethical school founded by a man who regarded natural rights as "nonsense" and imprescriptible natural rights as "nonsense upon stilts.")

More serious, from a libertarian point of view, is that Epstein comes within inches of allowing a positive role for antitrust law. Now, mind you, he doesn't _quite_ do so. Indeed he calls for the repeal of the Sherman Act and related legislation, and he opposes the use of government power to distinguish between "corporate combinations that increase market competition" (p. 125) from those that do otherwise. (Note that his understanding of "competition" is thoroughly Chicago-school, a point for which Austrian theorists have quite properly taken him to task.)

Yet his only ground for this latter opposition is merely that government agencies can't _tell_ which are which. Some corporate mergers, he says, may actually increase efficiency. Well, what about those that don't? Is he opposed in principle to such "inefficient" mergers? Would it be okay if the government stepped in to kill a merger that _was_ clearly "inefficient" by Epstein's standards? Or does he think there would be something morally wrong with outlawing certain uses of people's justly acquired property merely because somebody can think of a more "efficient" use?

Unfortunately Epstein's consequentialist approach prevents him from giving the standard libertarian answer. It seems that, for him, the rights of property and trade are dependent not merely on their promotion of "happiness" but, more specifically, on their service to the aggregate good -- where, most significantly, this "good" is apparently defined quite independently of justice.

So I have to knock off one star for inadequate moral foundations. But don't let that stop you from reading the book: Epstein's cost-benefit approach is solid as far as it goes. It just doesn't go far enough.

Rating:
Summary: Cost-benefit analysis in defense of liberty?
Review: Prof. Richard Epstein has written a brilliant book here. His thesis, at heart, is that the world operates more efficiently and productively when legal rules are "simple" than when they are complex.

In order to elaborate this thesis, he spells out just what he means by "simple," proposes a handful of simple rules himself in various areas of law (property, contracts, torts), and shows how they play out in action (in, e.g., labor contracting, employment discrimination, and products liability). In each case he argues, with much success, that it just wouldn't be efficient to try to improve on the results provided by the "simple" rules.

I especially recommend this book, and Epstein's work generally, to law students. Epstein's knowledge of the law is thorough and deep; One-Ls will find it useful to keep it handy for the whole year.

So why only four stars? Partly because I think cost-benefit analysis is neither an adequate defense of liberty against the regulatory State nor an adequate foundation for law; and partly because Epstein's reliance on such analysis leads him toward (though he stops short of actually arriving at) positions I regard as non- or anti-libertarian.

This review isn't the place to critique consequentialism; for a more or less standard and (I think) decisive critique, the reader is referred to W.D. Ross's _Foundations of Ethics_, which, after sixty-odd years, is still one of the most judicious works on ethics ever written. Suffice it to say that I think we can increase efficiency by pursuing justice, but not vice versa; consequentialism and its subspecies utilitarianism seem to me to be not so much ways of answering moral questions as of never raising them. The "maximization" of happiness is one ground of moral obligation, but not the only one. (And in general, I simply fail to understand recent libertarian interest in an ethical school founded by a man who regarded natural rights as "nonsense" and imprescriptible natural rights as "nonsense upon stilts.")

More serious, from a libertarian point of view, is that Epstein comes within inches of allowing a positive role for antitrust law. Now, mind you, he doesn't _quite_ do so. Indeed he calls for the repeal of the Sherman Act and related legislation, and he opposes the use of government power to distinguish between "corporate combinations that increase market competition" (p. 125) from those that do otherwise. (Note that his understanding of "competition" is thoroughly Chicago-school, a point for which Austrian theorists have quite properly taken him to task.)

Yet his only ground for this latter opposition is merely that government agencies can't _tell_ which are which. Some corporate mergers, he says, may actually increase efficiency. Well, what about those that don't? Is he opposed in principle to such "inefficient" mergers? Would it be okay if the government stepped in to kill a merger that _was_ clearly "inefficient" by Epstein's standards? Or does he think there would be something morally wrong with outlawing certain uses of people's justly acquired property merely because somebody can think of a more "efficient" use?

Unfortunately Epstein's consequentialist approach prevents him from giving the standard libertarian answer. It seems that, for him, the rights of property and trade are dependent not merely on their promotion of "happiness" but, more specifically, on their service to the aggregate good -- where, most significantly, this "good" is apparently defined quite independently of justice.

So I have to knock off one star for inadequate moral foundations. But don't let that stop you from reading the book: Epstein's cost-benefit approach is solid as far as it goes. It just doesn't go far enough.

Rating:
Summary: An outline for reforming U.S. civil law
Review: Professor Richard Epstein does a very convincing job in this book of articulating a legal system which is far more practical and comprehensible than the regime we currently enjoy. In the tradition of the law and economics approach, Epstein's major theme is that the administrative costs associated with so much contemporary and complex law far exceed any incremental benefit in the social incentive structures they create. Whether he is dicussing contracts, torts, products liablility, or anti-discrimination laws, Epstein makes an intellectual, yet common-sense case as to how they should be reformed, or, in the case of anti-discrimination laws, why they should be abandoned. Epstein makes no bones that the complexity of law, while driven in part by a legal system which benefits from such complexity, is also the product of sincere efforts by well-intentioned individuals to create a legal system that can produce an individually fair result in almost any set of circumstances. This is, perhaps, the biggest obstacle to the adoption of the legal principles outlined by Epstein in "Simple Rules" - a narcissism shared by so many judges and lawmakers which has always seemed to prevent them from fully coming to grips with their own limitations.

Rating:
Summary: A brilliantly argued fix for our legal system and society
Review: Richard Epstein takes us back to first principles to construct a legal system based on simple rules as an antidote to the ridiculously complex legal rules of today, with its attendant sky-high cost of administration. He approaches the task from the perspective of maximizing society's gain, and first derives the six basic rules that should underpin all law:

- Self-ownership: Each person owns himself and his labor

- First possession: Property is created, and owned, by the first person that uses it.

- Voluntary exchange

- Protection against agression

- Limited privilege in cases of necessity

- Just compensation when taking private property for public use

Based on these six rules, he then proceeds to analyze existing law, which in many instances harms society instead of protecting it or maximizing gains. These areas include labor laws, environmental legislation, consumer protection, liability, employment discrimination, and many more. Time after time the current system is found wanting.

This book is an indispensable tool in understanding how laws should be made, and guides us back to the kind of society our founders envisioned - a society of free people, able to make their own decisions, free to contract, and free of the yoke of an intrusive and tyrannical state.