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Published online by Cambridge University Press: 13 January 2009
Imitation is said to be the sincerest form of flattery. Socially, the proposition may well be true. But in the world of ideas it is false: to the extent that two incompatible traditions use the same words or symbols to articulate different visions of legal or social organization, imitation begets confusion, not enlightenment. The effects of that confusion, moreover, are not confined to the world of ideas, but spill over into the world of politics and public affairs. Words are more than tools of description: they work also as tools of persuasion and transformation. Let a term have a favorable connotation in one context, and its imitative use can mislead people into thinking that a major departure from established practice is merely the extension or updating of an old principle to deal with new circumstances.
1 Lanham Act, 15 U.S.C. §§ 1051 et seq. For an instance of its application, see Warner Bros. Inc. v. Gay Toys, Inc., 658 F.2d 76 (2d Cir. 1981).Google Scholar
2 For a compact statement of the relevant principles, see American Law Institute, Restatement of the Law Third: Unfair Competition (St. Paul, MN: American Law Institute Publishers, 1995)Google Scholar. Chapter 3 covers the law of trademarks. For a discussion of remedies, see ch. 3, Topic 6, § 35 (injunctions); § 36 (damages); and § 37 (accounting for defendant's profits).
3 Skinner v. Oklahoma, 316 U.S. 535 (1942).Google Scholar
4 Schenck v. United States, 249 U.S. 47, 52 (1919).Google Scholar
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7 See, e.g., The Institutes of Justinian, 5th ed., trans. Moyle, J. B. (Oxford: Clarendon Press, 1913)Google Scholar, Book I, Title 2, paragraph 3:
But the law of nations is common to the whole human race; for nations have settled certain things for themselves as occasion and the necessities of human life required. For instance, wars arose, and then followed captivity and slavery, which are contrary to the law of nature; for by the law of nature all men from the beginning were born free.
8 See Blackstone, William, Commentaries on the Law of England (1765; Chicago and London: University of Chicago Press, 1979), vol. 1, p. 121.Google Scholar
9 Ibid., p. 125.
10 Ibid., p. 126.
11 Ibid., p. 130.
12 Ibid.
13 Ibid.
14 Ibid., p. 134.
15 Compare Kaiser Aetna v. United States, 444 U.S. 164 (1979)Google Scholar (right to exclude protected under takings clause), with Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978)Google Scholar (limited protection against land-use restrictions).
16 For discussion, see Epstein, Richard A., “Two Conceptions of Civil Rights,” Social Philosophy and Policy, vol. 8, no. 2 (Spring 1991), pp. 38–59.CrossRefGoogle Scholar
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20 Roosevelt, Franklin D., Nothing to Fear (Freeport, NY: Books for Libraries Press, 1946), p. 387.Google Scholar
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22 Ibid.
23 Ibid., p. 396.
24 Ibid., p. 397.
25 Hayek, F. A., The Road to Serfdom (Chicago: University of Chicago Press, 1994), pp. 132–33.Google Scholar
26 Ibid., p. 133.
27 Ibid., p. 134.
28 For example, Article 6 of the ICESCR provides:
1. The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.
2. The steps to be taken by a State Party to the present Covenant to achieve the full realization of this right shall include technical and vocational guidance and training programmes, policies and techniques to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedoms to the individual.
Article 11(1) provides as follows:
The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.
29 See, e.g., Sunstein, Cass R., After the Rights Revolution: Reconceiving the Regulatory State (Cambridge: Harvard University Press, 1990).Google Scholar
30 “For, the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself.” Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886)Google Scholar. The connection with Locke's Second Treatise should be evident. See, e.g., Locke, John, Second Treatise [1690], ch. 2Google Scholar, in Locke, , Two Treatises of Government (Cambridge: Cambridge University Press, 1960).Google Scholar
31 Locke, , Second TreatiseGoogle Scholar, section 6: “But though this [a world of free, equal, and independent individuals] be a State of Liberty, yet it is not a State of Licence.…”
32 See Aristotle, , Politics, trans. Jowett, Benjamin (New York: Random House, 1943), 1256b40–1258b8.Google Scholar
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36 Loretto v. Teleprompter, 458 U.S. 419 (1982).Google Scholar
37 See, e.g., Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992).Google Scholar
38 Hayek, , The Road to Serfdom, p. 141Google Scholar. For a similar recognition of the risks of political guarantees, see Schmidtz, David, “Guarantees,” Social Philosophy and Policy, vol. 14, no. 2 (Summer 1997), pp. 1–19.CrossRefGoogle Scholar
39 In finance theory, the meaning of the term “leverage” is analogous to its physical meaning. The use of borrowed money allows an owner to leverage (i.e., extend) his investment beyond what it would otherwise be. A highly leveraged firm is, therefore, one which has a high debt-to-equity ratio. The risk of using a long pole to leverage the force of a large rock is that the pole may break. The financial analogue is bankruptcy.
40 For one among many demonstrations of this point, see Bebchuk, Lucian Arye and Fried, Jesse M., “The Uneasy Case for the Priority of Secured Claims in Bankruptcy,” Yale Law Journal, vol. 105, no. 4 (01 1996), pp. 873–75.CrossRefGoogle Scholar
41 Agricultural Adjustment Act of 1938, Pub. L. No. 75–430, 52 Stat. 31 (1938).
42 For a general account, see Hayward, Steven and Peterson, Erik, “The Medicare Monster: A Cautionary Tale,” Reason, vol. 24, no. 8 (01 1993), pp. 18–25.Google Scholar
43 Age Discrimination in Employment Act, 29 U.S.C. §623(a), first passed in 1967.
44 Ibid., § 623(f)(1).
45 The point was made by Justice Oliver Wendell Holmes in one of his famous aphorisms (in Union Pacific Railway Co. v. Public Service Commission of Missouri, 248 U.S. 67, 70 [1918]):Google Scholar
It is always in the interest of a party under duress to choose the lesser of two evils. But the fact that a choice was made according to interest does not exclude duress. It is the characteristic of duress properly so called.
46 Note that these same arguments apply to the risks of special-interest legislation set out above (in Section IIB).
47 In this analysis I ignore the role of transaction costs. Speaking generally, these must be smaller than the potential for gain in order for the transaction to go forward. In the example in the text, the voluntary exchange will not take place if the transaction costs exceed $40. And if they are less than $40, they will still reduce the overall extent of the gain. Either way, we should work to reduce them. For the obligatory discussion, see Coase, Ronald H., “The Problem of Social Cost,” Journal of Law and Economics, vol. 3 (1960), pp. 1–44.CrossRefGoogle Scholar
48 For my earlier analysis of this issue, see Epstein, Richard A., “Unconscionability: A Critical Reappraisal,” Journal of Law and Economics, vol. 18 (1975), pp. 293–315CrossRefGoogle Scholar, criticizing Dalzell, John, “Duress by Economic Pressure I,” North Carolina Law Review, vol. 20 (1942), pp. 237–77Google Scholar, and Dawson, John P., “Economic Duress—An Essay in Perspective,” Michigan Law Review, vol. 45 (1947), pp. 253–90.CrossRefGoogle Scholar
49 Hale, Robert L., “Coercion and Distribution in a Supposedly Non-Coercive State,” Political Science Quarterly, vol. 38 (1923), pp. 470–94CrossRefGoogle Scholar. Hale himself was a distinguished professor of law at Columbia University whose writing frequently dealt with the scope of coercion in constitutional-law and private-law frameworks. See, e.g., Hale, Robert L., “Unconstitutional Conditions and Constitutional Rights,” Columbia Law Review, vol. 35 (1935), pp. 321–59CrossRefGoogle Scholar. For my critique of this position, see Epstein, Richard A., Bargaining with the State (Princeton: Princeton University Press, 1993), pp. 39–49.Google Scholar
50 Carver, Thomas Nixon, Principles of National Economy (New York: Ginn and Co., 1921).Google Scholar
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53 Hale, , “Coercion and Distribution,” pp. 472–73.Google Scholar
54 Ibid., p. 474.
55 Ibid.
56 Allnut v. Inglis, 12 East 525, 104 Eng. Rep. 206 (K.B. 1810). The common law's concern with monopoly most obviously extended to cases of state-created monopolies. But it also carried over to the less frequent cases of natural monopolies that were stable, not because they were propped up by state power, but because they were the initial entrant in a field that was characterized by uniform declining marginal costs of production over the relevant range of output. That low marginal cost of production would block the second entrant into the field unless he could capture all of the market.
57 Mill, John Stuart, On Liberty (1859; Oxford: Oxford University Press, 1991).Google Scholar
