Document Type

Article

Publication Title

San Diego Law Review

Abstract

In his paper in this issue of the San Diego Law Review, Professor Howard Abrams takes me to task for my analysis of the doctrine of unconstitutional conditions as it appears in the Foreword to the Harvard Law Review 1987 Supreme Court issue. Judging from his response, it is difficult to understand why he bothered with his analysis because he seems to find so little of value in what I have written. Instead, he uses the opportunity as a platform for the development of his own inchoate views, which in common fashion stress the importance of motivational analysis in dealing with unconstitutional conditions. Although he has an obvious familiarity with standard economic doctrine, he interprets it so austerely as to render it useless to attack this, or indeed any other, problem. A more sensible use of economic theory yields far richer fruit, and is consistent, I believe, with the positions that I have developed in the Foreword. Professor Abrams uses his economics to obscure the doctrinal outlines of the unconstitutional conditions doctrine. We would all have profited more if he had used his insights to advance understanding of the doctrine. To facilitate my brief reply, I shall follow the organization of Professor Abrams' paper which divides his objections to my position into three parts. His first point is that I have not explained why the use of monopoly power by the government constitutes a situation that requires some constitutional supervision. His second point is that my economic analysis of the doctrine is necessarily flawed because it requires reliance upon the kind of motivational investigations that are ordinarily regarded as out of bounds by economic theory. His third point concerns what he considers to be my inadequate treatment of the externality problem as it normally arises in economic theory.

First Page

395

Volume

27

Publication Date

1990

Download

Share

COinS