Richard Epstein

Richard Allen Epstein (born April 17, 1943) is an American scholar, educator, lawyer, and author, best known for his writings and studies on classical liberalism, torts, and a wide variety of topics in law and economics. Epstein is currently the Laurence A. Tisch Professor of Law and director of the Classical Liberal Institute at New York University, a senior fellow at the Hoover Institution, and professor emeritus and a senior lecturer at the University of Chicago.

Epstein's writings have extensively influenced modern American legal thought.^[1] In 2000, a study published in The Journal of Legal Studies identified Epstein as the 12th-most cited legal scholar of the 20th century.^[2] In 2008, he was chosen in a poll taken by Legal Affairs as one of the most influential legal thinkers of modern times.^[3] A study of legal publications between 2009 and 2013 found Epstein to be the 3rd-most frequently cited American legal scholar during that period, behind only Cass Sunstein and Erwin Chemerinsky.^[4] He has been a member of the American Academy of Arts and Sciences since 1985.^[5]

Life and career

Richard A. Epstein was born on April 17, 1943, in Brooklyn, New York. His father, Bernard Epstein, was a radiologist, and his mother, Catherine, managed his father's medical office.^[6] He has two sisters. He attended elementary school at P.S. 161, a school that is now one of the Success Academy Charter Schools.^[7] Epstein and his family lived in Brooklyn until 1954, when his father began working at the Long Island Jewish Medical Center and their family moved to Great Neck, Long Island.^[7]

Epstein attended Columbia University as an undergraduate student in the early 1960s, graduating with a B.A. degree in sociology summa cum laude in 1964. Epstein's undergraduate performance earned him a Kellett Fellowship, an award at Columbia which pays for two of each year's top graduates to spend two years in England studying at either Cambridge University or Oxford University. Epstein chose to attend Oxford and study law, and was awarded a first-class honours B.A. in jurisprudence in 1966. Epstein then returned to the United States to attend the Yale Law School at Yale University, graduating with an LL.B. cum laude in 1968.

Epstein began his teaching career as a professor of law at the University of Southern California. He taught there until 1972 when he moved to the University of Chicago, where he taught for 38 years and eventually held the title of James Parker Hall Distinguished Service Professor of Law. Epstein formally retired from Chicago in 2010, but quickly came out of retirement to join the faculty of New York University as its inaugural Laurence A. Tisch Professor of Law, where he currently teaches. He remains a professor emeritus and senior lecturer at Chicago, teaching courses there on an occasional basis. In 2013, New York University's School of Law established a new academic research center, the Classical Liberal Institute, and named Epstein as its inaugural director.^[8]

Epstein has served in many academic and public organizations and has received a number of awards. In 1983, Epstein was made a senior fellow at the Center for Clinical Medical Ethics at the University of Chicago Medical School, and in 1985 was inducted into the American Academy of Arts and Sciences. He was editor of the Journal of Legal Studies from 1981 to 1991, and was editor of the Journal of Law and Economics from 1991 to 2001. In 2001, Epstein was appointed the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, a prominent American public policy think tank located at Stanford University. In 2003, Epstein received an honorary LL.D. degree from the University of Ghent, and in 2011 was awarded a Bradley Prize.^[9]

Writings

Epstein's early scholarship focused on private law, particularly on torts. However, he became famous in the American legal community in the 1980s with the publication of his book Takings: Private Property and the Power of Eminent Domain (1985). In it, Epstein argued that the "takings clause" of the Fifth Amendment to the U.S. Constitution—which is traditionally viewed as an enumeration of the power of eminent domain—gives constitutional protection to citizens' economic rights,^[1] and requires the government to be regarded with the same respect as any other private entity in a property dispute. In 1991, during Clarence Thomas' confirmation hearings as an Associate Justice of the U.S. Supreme Court, Senator Joe Biden "in a dramatic movement" held the book up and "repeatedly interrogated" Thomas regarding his position on the book's thesis.^[1] The book served as a focal point in the argument about the government's ability to control private property.^[10] The book has also influenced how some courts view property rights^[11] and has been cited by the US Supreme Court in four cases, including Lucas v. South Carolina Coastal Council from 1992.^[10]

Epstein is an advocate of minimal legal regulation. In his book Simple Rules for a Complex World (1995), Epstein consolidated much of his previous work, arguing that simple rules work best because complexities create excessive costs. Complexity comes from attempting to do justice in individual cases. Complex rules are justifiable however, according to Epstein, if they can be opted out of. For instance, drawing on Gary Becker, he argues that the Civil Rights Act and other anti-discrimination legislation would be better if repealed. Consistent with the principles of classical liberalism, he believes that the federal regulation on same-sex marriage, DOMA, should be repealed,^[12] stating:

Under our law, only the state may issue marriage licenses. That power carries with it a duty to serve all-comers on equal terms, which means that the state should not be able to pick and choose those on whom it bestows its favors. DOMA offends this principle in two ways. First, it excludes polygamous couples from receiving these marital benefits. Second, it excludes gay couples. Both groups contribute to the funds that support these various government programs. Both should share in its benefits.

During a live television broadcast on CNBC's Larry Kudlow's show Kudlow & Company (later The Kudlow Report), Epstein famously called plaintiff lawyer Mark Lanier a “bully” and said that he would not "get away with it." This occurred during the discussion over the merits of the Ernst v. Merck verdict. His full statement was, "You're a bully, Mr. Lanier, and you're not going to get away with it now."^[13] The debate came on the heels of Epstein's impassioned criticism of the Merck/Vioxx fiasco in an op-ed article, in which Epstein accused Lanier of intentionally misleading the jury during the trial.^[14] Ultimately, Epstein’s arguments about misleading the jury were adopted when two appellate courts reversed the Vioxx verdicts^[15] finding that the trials did not prove that Vioxx had caused the injuries claimed by Lanier.^[16]

Influence

In 2006, the American scholar James W. Ely, Jr. wrote: "It is a widely accepted premise that Professor Richard A. Epstein has exercised a pervasive influence on American legal thought."^[1] A study published in The Journal of Legal Studies in 2000 identified Epstein as the 12th-most cited legal scholar of the entire 20th century.^[2] In 2008, he was chosen in a poll taken by Legal Affairs as one of the most influential legal thinkers of modern times.^[3] A study of legal publications between 2009 and 2013 found Epstein to be the 3rd most frequently cited American legal scholar, behind only Cass Sunstein and Erwin Chemerinsky.^[4]

Politics

Epstein has said that when voting, he chooses "anyone but the Big Two" who are "just two members of the same statist party fighting over whose friends will get favors". He has voted Libertarian.^[17] Epstein says he is "certainly a Calvin Coolidge fan; he made some mistakes, but he was a small-government guy".^[17] Epstein served on The Constitution Project's Guantanamo Task Force.^[18][19][20]

In early 2015, Epstein commented on his relationship to the modern American political landscape, stating: "I'm in this very strange position: I'm not a conservative when it comes to religious values and so forth, but I do believe, in effect, in a strong foreign policy and a relatively small domestic government, but that's not the same thing as saying I believe in no government at all."^[21]

Personal life

Epstein and his wife, Eileen W. Epstein, have two sons, Benjamin M. and Elliot, and a daughter, Melissa. He is the first cousin of comedian Paul Reiser.^[22]

Regarding his religious views, Epstein has described himself as "a rather weak, non-practicing Jew."^[23]

Selected works

• Epstein, Richard A.; Gregory, Charles; Kalven, Harry (1977). Cases and Materials on the Law of Torts (3rd ed.). New York: Little, Brown & Co.  4th edition (1984), New York: Little, Brown & Co.
• Epstein, Richard A. (1985). Takings: Private Property and the Power of Eminent Domain. Cambridge: Harvard University Press. ISBN 0674867297. 
• ——— (1990). Cases and Materials on Torts (5th ed.). New York: Little, Brown & Co.  6th edition (1995); 7th edition (2000), Aspen Publishers; 8th edition (2004), Aspen Publishers; 9th edition (2008), Aspen Publishers; (with Catherine Sharkey) 10th edition (2012), Aspen Publishers.
• ——— (1992). Forbidden Grounds: The Case Against Employment Discrimination Laws. Cambridge: Harvard University Press. ISBN 978-0674308084. 
• ———; Stone, Geoffrey R.; Sunstein, Cass R. (1992). The Bill of Rights in the Modern State. Chicago: University of Chicago Press. ISBN 9780226775326. 
• ——— (1995). Simple Rules for a Complex World. Cambridge: Harvard University Press. ISBN 9780674808218. 
• ——— (1999). Torts. Introduction to Law Series. Aspen Publishers. ISBN 9780735500471. 
• ———; Sunstein, Cass R. (2001). The Vote: Bush, Gore & the Supreme Court. Chicago: University of Chicago Press. ISBN 978-0226213071. 
• ——— (2003). Skepticism and Freedom: A Modern Case for Classical Liberalism. Studies in Law and Economics Series. Chicago: University of Chicago Press. ISBN 978-0226213057. 
• ——— (2006). How Progressives Rewrote the Constitution. Washington, D.C.: Cato Institute. 
• ——— (2011). Design for Liberty: Private Property, Public Administration, and the Rule of Law. Cambridge: Harvard University Press. ISBN 978-0674061842. 
• ——— (2014). The Classical Liberal Constitution: The Uncertain Quest for Limited Government. Cambridge: Harvard University Press. ISBN 978-0674724891. 

See also

• Libertarian theories of law

References

Footnotes

Works cited

• Ely, James W. (2006). "Impact of Richard A. Epstein". William & Mary Bill of Rights Journal 15 (2): 421–8. 
• Anthony Ogus, ‘The Power and Perils of Simple Ideas and Simple Rules’ (1997) 17 (1) Oxford Journal of Legal Studies, reviewing Simple rules for a complex world
• Steelman, Aaron (2008). "Epstein, Richard A. (1943– )". In Hamowy, Ronald. The Encyclopedia of Libertarianism. Thousand Oaks, CA: SAGE; Cato Institute. pp. 153–4. ISBN 978-1-4129-6580-4. LCCN 2008009151. OCLC 750831024. 
• Frey, Jennifer S. (2009). "Introducing Richard Epstein". NYU Law Magazine. Retrieved 23 March 2015. 

External links

• A Richard Epstein fan site with links to his work
• Richard Epstein's Home Page at NYU Law
• Richard Epstein's Home Page at University of Chicago
• Appearances on C-SPAN
• "Taking Exception", interview in Reason by Steve Chapman
• Roberts, Russ. "Richard Epstein Podcasts". EconTalk. Library of Economics and Liberty. 
• Interview with Richard Epstein, Hoover Institution's Uncommon Knowledge with Peter Robinson, October 29, 2006
• Forbes Magazine "The Libertarian" online column