Economic Analysis and Unconstitutional Conditions: A Reply to Professor Epstein

In this Article, Professor Abrams responds to Professor Richard Epstein's Forward in the November 1988 issue of the Harvard Law Review in which Professor Epstein discusses the unconstitutional conditions doctrine. The doctrine holds that a person may not, under certain conditions, be forced to choose between exercise of a constitutional right and receipt of a government service, grant, or other benefit. Professor Abrams notes that Professor Epstein failed to follow through on his promise of showing how the doctrine of unconstitutional conditions does, and should, function in a variety of contexts as a check against the political perils of certain market failures. Professor Abrams addresses each market failure cited by Professor Epstein, to wit: state-owned monopolies, bargaining problems caused by collective action, and exchanges producing significant externalities.

The former concludes that Professor Epstein's functional approach is flawed and introduces an alternative economic analysis showing that motivation and not economics must be the linchpin of the doctrine.