In this Article, Professor Epstein takes a theoretical and practical approach in a discussion of the doctrine of unconstitutional conditions. He first shows how the doctrine of unconstitutional conditions can operate as an effective barrier against the dissipation of the social gains that are otherwise obtainable by collective social action. He next shows how the doctrine of unconstitutional conditions continues to play an important intellectual role in modern constitutional theory. In conclusion, the doctrine will be a necessary part of constitutional law so long as there are two spheres of government action - one in which there is a presumption in favor of government power, and a second in which there is the opposite presumption in favor of individual liberties. So long as the two domains coexist, the doctrine will continue to have as much vitality in the present regulatory environment as it did before the constitutional watershed period of 1937.
Richard A. Epstein,
Unconsitutional Conditions and Bargaining Breakdown,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol26/iss2/3