Richard Epstein, ‘Rules and reasons, public and private on the use and limits of simple rules 25 years later’

The basic ‘simple rules’ thesis holds that most legal relationships can be reduced to questions of autonomy, property acquisition, contract and tort on the private law side, and eminent domain and taxation on the public law side. This paper extends that analysis in three directions. First, it explains how a single-owner model drives this basic set of entitlements under conditions of universal consent, which are not matched in a state of nature. It then explains how when property rights derive from occupation instead of common ownership, a simplified set of entitlements offers the best path for incorporating the basic insights of the single-owner model. When, however, one or more parties deviate from these entitlements, the needed remedial adjustments typically must overcome uncertainty in trying to choose the proper mix of damages and specific relief in varying contexts. Once that private law framework is settled, the paper then identifies the central rule that governs the switch from private to public law: efficient entitlements should never be altered, but that new remedial design should improve the private law model by reducing the transactions costs needed to operate the overall system.

Richard A Epstein, Rules and reasons, public and private on the use and limits of simple rules 25 years later, European Journal of Law and Economics (2021). Published: 19 February 2021.

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