The Constitutional Foundations of Intellectual Property: A Natural Rights Perspective

by Richard Epstein

Federalist Society Review

One of the major unmarked developments in the past century of American law has been the decline of natural law thinking. Read any older treatment of, for example, property rights, marriage, or contract, and the unquestioned approach looks to natural law principles to set out the basic parameters of these social arrangements. Individuals by nature […]

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Merrick Garland: Political Pawn

by Richard Epstein

Defining Ideas

The single most important phrase that changed the politics of Supreme Court nominations was Senator Edward Kennedy’s famous and shameful denunciation of “Robert Bork’s America,” with its back alley abortions, segregated lunch counters, and rogue police. From that point on, Supreme Court nominees of either party, and even potential nominees, have risked being attacked in […]

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The Rise of American Protectionism

by Richard Epstein

Defining Ideas

The wedge issue of the 2016 primary campaign is the rising hostility to free trade—and, specifically, to the Trans-Pacific Partnership. On the Republican side, establishment candidates like Jeb Bush, Scott Walker, and Marco Rubio have failed or fallen behind, while Donald Trump maintains a commanding lead going into Florida and Ohio thanks, in large part, to his protectionist […]

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Scalia Maligned

by Richard Epstein

Defining Ideas

The death of Antonin Scalia has set up a nasty battle over who shall occupy his vacant seat on the Supreme Court. The battle does not just involve the endless political skirmishes now taking place between the White House and the Senate. It also extends to the larger philosophical debate over the constitutional theory of […]

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Whole Woman’s Health in the Supreme Court: When Does Regulation Count as an Undue Burden?

by Richard Epstein

Ricochet

In its first major argument since the untimely death of Justice Antonin Scalia, the newly constituted eight-member Supreme Court in Whole Woman’s Health v. Hellerstedt had a spirited session on whether the twin requirements of Texas Law H.B. 2 constituted an “undue burden” on a women’s constitutional right to have an abortion set out in 1992 Supreme […]

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The Real Cause Of American Growth

by Richard Epstein

Defining Ideas

Judging from all the hype, the economic book of 2016 is Robert Gordon’s The Rise and Fall of American Growth. Gordon’s book offers the definitive account of how the many technological innovations between 1870 and 1940 dramatically improved life in the United States. On the positive side, he accurately chronicles the major advances in electricity, public […]

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Apple’s iPhone Blunder

by Richard Epstein

Defining Ideas

Can the United States government compel Apple to help break into the phone of Syed Rizwan Farook, who, along with his wife Tashfeen Malik, gunned down fourteen innocent people last December at the Inland Regional Center in San Bernardino? That question has sparked fireworks in recent days. The dispute arises because Apple has equipped its new iPhones […]

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Epstein on the Apple e-books case: The hidden traps in the Apple ebook case

by Richard Epstein

Truth on the Market

On balance the Second Circuit was right to apply the antitrust laws to Apple. Right now the Supreme Court has before it a petition for Certiorari, brought by Apple, Inc., which asks the Court to reverse the decision of the Second Circuit. That decision found per se illegality under the Sherman Act, for Apple’s efforts to promote cooperation […]

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