The title comes from Epstein’s belief that we ought to be highly skeptical of the idea that an outside party has better knowledge about the choices (and the benefits from them) that a person makes. The person making the deal is in the best position to know whether the deal meets his desires or not, and unless the bystander is directly injured, he shouldn’t be able to substitute his choices.But Sandefur later says:
A related element of Epstein’s argument -- indeed, I think it’s the real thesis of the book -- is that he believes the state may force exchanges between parties, without their consent, so long as these exchanges leave no party worse off, and leaves at least one party better off. The principle of eminent domain -- about which Epstein wrote extensively in his book Takings -- embodies this idea, ideally. Epstein acknowledges that this element of his thought makes him pretty unique among libertarians, who probably would not accept it. But Epstein believes that it is a necessary element of society; there are many collective agreements which would leave everyone better off, but which, due to some transaction cost, cannot be enforced. The law can then serve to enforce these agreements. This principle allows Epstein to (in theory) escape some of the more complicated problems of political philosophy, since it allows society to evolve in a direction that accommodates liberty in a practical manner[.]Which leads me to ask:
1. In light of Epstein's belief that we ought to be highly skeptical of the idea that an outside party has better knowledge about the choices (and the benefits from them) that a person makes, how does Epstein reckon that the state, as an outside party, is able to determine that the parties to a forced exchange will be better off as a result of the exchange?
2. What happens to the transactions costs that (presumably) keep the parties from undertaking an exchange that the state decides to force? Do the costs simply vanish or does the state (that is, taxpayers) defray them?
3. Is Epstein's concept of forced exchange a justification of the integration of commerce (e.g., forcing whites to accommodate blacks at hotels, restaurants, etc., and forcing whites to offer houses to black as well as white buyers)?
4. If Epstein's concept of forced exchange justifies the integration of commerce, how does the state account for the preference of whites not to trade with blacks, or does the state simply regard that preference as illegitimate?
5. If the state chooses to treat the preference of whites as illegitimate, by what criterion does the state judge the legitimacy of the preferences of parties to a forced exchange being contemplated by the state?
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