Richard Epstein

Richard Allen Epstein (born April 17, 1943) is an American legal scholar known for his writings on torts, contracts, property rights, law and economics, classical liberalism, and libertarianism. He is the Laurence A. Tisch Professor of Law at New York University and the director of the Classical Liberal Institute. He also serves as the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution and the James Parker Hall Distinguished Service Professor of Law emeritus and a senior lecturer at the University of Chicago.

For the American game theorist, see Richard Arnold Epstein. For the behavioral geneticist, see Richard Ebstein.
Richard Epstein
Epstein in 2018
Born
Richard Allen Epstein

(1943-04-17) April 17, 1943
New York City, New York, U.S.
SpouseEileen
Children3
RelativesPaul Reiser (cousin)
Awards

Bradley Prize (2011)
Academic background
EducationColumbia University (BA)
Oriel College, Oxford (BA)
Yale University (LLB)
Influences
Academic work
DisciplineConstitutional law
Property law
InstitutionsUniversity of Southern California
University of Chicago
MacLean Center for Clinical Medical Ethics
New York University
Main interestsTakings clause, Roman law
Notable worksTakings: Private Property and the Power of Eminent Domain (1985)
InfluencedRandy Barnett

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According to James W. Ely Jr., Epstein's writings have had a "pervasive influence on 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; in 2008, he was chosen in a poll by Legal Affairs as one of the most influential modern legal thinkers. A study of legal publications between 2009 and 2013 found Epstein to be the third-most frequently cited American legal scholar during that period, behind only Cass Sunstein and Erwin Chemerinsky. In a 2021 examination by Fred R. Shapiro, Epstein was the fifth most-cited legal scholar of all time.[2]

Early life and education

Epstein was born on April 17, 1943, in Brooklyn, New York. His grandparents were Ashkenazi Jews who immigrated to the United States from Russia and Austria in the early 20th century. Epstein's father, Bernard Epstein (1908–1978), was a radiologist, and his mother, Catherine Epstein (née Reiser; 1908–2004), managed his father's medical office.[3] He has two sisters. He attended elementary school at P.S. 161, a school that is now one of the Success Academy Charter Schools.[4] 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.[4]

Epstein attended Columbia University as an undergraduate in the early 1960s. He had wide-ranging academic interests and did not wish to select a single major, obtaining special permission from the university to pursue a self-selected program of study across sociology, philosophy, and mathematics. He graduated with a B.A., summa cum laude, in 1964.[5]

Epstein's undergraduate performance earned him a Kellett Fellowship, an award at Columbia that 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 Oxford, where he studied jurisprudence at Oriel College. He received a B.A. with first-class honours in 1966, and then returned to the United States to attend Yale Law School. Because he had an English law degree, Epstein entered Yale as a transfer student with second-year standing.[6] He graduated in 1968 with an LL.B., cum laude.

Academic career

After graduating from law school, Epstein became an assistant professor at the Gould School of Law of the University of Southern California (USC). He taught at USC for four years before moving to the University of Chicago Law School in 1972. Epstein taught at Chicago for 38 years, eventually holding 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 the New York University School of Law as its inaugural Laurence A. Tisch Professor of Law. He remains a professor emeritus and senior lecturer at Chicago, occasionally teaching courses there. In 2013, NYU Law established a new academic research center, the Classical Liberal Institute, and named Epstein its inaugural director.[7]

Since 2001, Epstein has served as the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, a prominent American public policy think tank at Stanford University. He has served in many academic and public organizations and has received a number of awards. In 1983, he was made a senior fellow at the Center for Clinical Medical Ethics at the University of Chicago Medical School, and, in 1985, he was inducted into the American Academy of Arts and Sciences.[8] He was editor of the Journal of Legal Studies from 1981 to 1991, and of the Journal of Law and Economics from 1991 to 2001. In 2003, Epstein received an honorary LL.D. degree from the University of Ghent, and in 2018 he received an honorary doctorate in law from the University of Siegen.[9] In 2005, the College of William & Mary awarded him the Brigham-Kanner Property Rights Prize for his contributions to the field of property rights.[10] In 2011, he was awarded a Bradley Prize by the Bradley Foundation.[11]

Writings

Epstein became famous in the American legal community in 1985 with Harvard University Press's publication of his book Takings: Private Property and the Power of Eminent Domain. In the book, Epstein argued that the "Takings Clause" of the Fifth Amendment to the U.S. Constitution—which reads, "nor shall private property be taken for public use, without just compensation", and is traditionally viewed as a limit on the governmental power of eminent domain—gives constitutional protection to citizens' economic rights,[1] and so requires the government to be regarded the same as any other private entity in a property dispute. The argument was controversial and sparked a great deal of debate on the interpretation of the takings clause after the book's publication. During Clarence Thomas's Supreme Court Justice confirmation hearings in 1991, then-Senator Joe Biden, "in a dramatic movement", held the book up and "repeatedly interrogated" Thomas about 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.[12] It has also influenced how some courts view property rights[13] and been cited by the U.S. Supreme Court four times, including in the 1992 case Lucas v. South Carolina Coastal Council.[12]

At the height of the HIV pandemic in 1988, Epstein argued that companies ought to be able to discriminate against "AIDS carriers" and that anti-discrimination laws were unfair to employers. In place of such laws, Epstein argued that "AIDS carriers" ought to have their health insurance premiums subsidized via taxation so as to "discipline the behavior of government and interests groups, here by requiring citizens to make choices about how much they individually are prepared to pay to subsidize AIDS carriers." Furthermore, he argued that "[t]here is no reason to suppose that any public benefit obtained from having employers and their insurers care for AIDS victims will be at some level that matches the additional costs that are imposed." Instead, Epstein proposed that employers have the right to refuse to hire suspected "AIDS carriers".[14]

Epstein is an advocate of minimal legal regulation. In his 1995 book Simple Rules for a Complex World, he consolidates much of his previous work and argues 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, if they can be opted out of. Drawing on Gary Becker, he argues that the Civil Rights Act and other anti-discrimination legislation ought to be repealed. Consistent with the principles of classical liberalism, he believes that the federal regulation on same-sex marriage, the Defense of Marriage Act, should be repealed,[15] 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."

Epstein has criticized the Supreme Court ruling in Obergefell v. Hodges.[16][17] In 2007, he defended the intellectual property rights of pharmaceutical companies against the cheaper, generic production of AIDS drugs, writing that "disregarding property rights in the name of human rights reduces human welfare around the globe".[18]

In 2014, Epstein argued against reparations for African Americans in a piece published on the Hoover Institution's website.[19]

Contributing to the anthology Our American Story (2019), Epstein addressed the possibility of a shared American narrative. Taking a decidedly skeptical approach, Epstein concluded that no new national narrative can be achieved "unless we engage in what I call American minimalism—a conscious reduction of the issues that we think are truly best handled as a nation and not better address by smaller subnational groups: states, local governments, and, most importantly, all sorts of small private organizations that are free to choose as they please in setting their own membership and mission."[20]

COVID-19 pandemic

In March and April 2020, Epstein wrote several essays published by the Hoover Institution giving a contrarian account of the COVID-19 pandemic and warning against extensive containment and mitigative United States responses to the COVID-19 pandemic, which he called an "overreaction".[21] In a piece published on March 16, he argued that the word "pandemic" is not to be used lightly and that the virus should be allowed to run its course, predicting there would be 500 U.S. deaths. In early June, the U.S. death total surpassed 100,000.[22] On March 24, when U.S. deaths had already exceeded 500, Epstein added a "Correction & Addendum", in which he changed his forecast to 5,000 deaths[23][24][25] without changing the underlying model that had led him to his first estimate.[26] On April 6, when the death toll had already far surpassed his earlier predictions, he again revised that figure, with the "Correction & Addendum" section declaring under the inaccurate date stamp "March 24, 2020" that the "original erroneous estimate of 5,000 dead in the US [was] a number 10 times smaller than [he had] intended to state", implying that both "500" and "5,000" had been misprints for "50,000".[27] After several news reports about Epstein's ever-increasing estimates, on April 21 an editor's note appeared on the website that explained the latest changes as an "editing error" and clarified that Epstein's original prediction had been 500 deaths.[28] In December 2020, when the death toll from COVID-19 in the U.S. was over 333,000, Politico named Epstein's predictions among "the most audacious, confident and spectacularly incorrect prognostications about the year".[29]

Epstein compared COVID-19 to the 2009 H1N1 pandemic and suggested that public health measures "are done better at the level of plants, hotels, restaurants, and schools than remotely by political leaders." He argued that "the response of the state governors to the coronavirus outbreak has become far more dangerous than the disease itself", writing that the number of deaths had been exaggerated.[30] His essays, containing a number of factual errors and misconceptions about the SARS-CoV-2 virus, circulated in conservative circles and in the Trump administration upon their publication.[31][32] In an article published on June 6, Epstein praised Republican-governed states like Florida for their crisis management, linking the then greater deaths in Democratic-governed states to their "interventionist policies".[33]

Influence
Epstein speaks at a conference in George Mason University (2009)

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] In 2000, a study published in The Journal of Legal Studies identified Epstein as the 12th-most cited legal scholar of the entire 20th century.[34] In 2008, he was chosen in a poll taken by Legal Affairs as one of the most influential legal thinkers of modern times.[35] 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.[36]

Epstein's former students include a number of prominent judges, lawyers, and law professors, including Neomi Rao, Michael McConnell, Noel Francisco, Martha Pacold, and David McIntosh.[6]

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".[37] He has voted Libertarian.[38] Epstein says he is "certainly a Calvin Coolidge fan; he made some mistakes, but he was a small-government guy".[38] Epstein served on The Constitution Project's Guantanamo Task Force.[39][40][41] Epstein has said that Learned Hand should have been on the Supreme Court and that his favorite English judge was Baron Bramwell.[6]

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."[42] He has also been characterized as a libertarian conservative.[43][44] During a debate with Chris Preble in December 2016, Epstein identified himself as being a "libertarian hawk".[45]

In 2023, Epstein co-authored an op-ed in the Wall Street Journal defending the 2023 Israeli judicial reform.[46] Epstein has defended Israel's policies vis-à-vis Palestinians, calling allegations of apartheid a canard.[47]

Personal life

Epstein's wife, Eileen W. Epstein, is a fundraiser and educator who serves on the board of trustees for the philanthropic organization American Jewish World Service. They have three children: two sons, Benjamin M. and Elliot, and a daughter, Melissa. Epstein is a first cousin of the comedian and actor Paul Reiser.[48]

Epstein, who had a bar mitzvah,[6] has described himself as "a rather weak, non-practicing Jew."[49]

Selected publications

Articles
  • Epstein, Richard A. (1973). "A Theory of Strict Liability". Journal of Legal Studies. 2 (1): 151–204. doi:10.1086/467495. S2CID 153758836.
  • ——— (1975). "Unconscionability: A Critical Reappraisal". Journal of Law and Economics. 18 (2): 293–315. doi:10.1086/466814. S2CID 153434595.
  • ——— (1979). "Nuisance Law: Corrective Justice and Its Utilitarian Constraints". Journal of Legal Studies. 8 (1): 49–102. doi:10.1086/467602. S2CID 153518407.
  • ——— (1983). "A Common Law for Labor Relations: A Critique of the New Deal Labor Legislation". Yale Law Journal. 92 (8): 1357–1408. doi:10.2307/796178. JSTOR 796178.
  • ——— (1984). "In Defense of the Contract at Will". University of Chicago Law Review. 51 (4): 947–82. doi:10.2307/1599554. JSTOR 1599554.
  • ——— (1987). "The Proper Scope of the Commerce Power". Virginia Law Review. 73 (8): 1387–1455. doi:10.2307/1073233. JSTOR 1073233.
  • ——— (1988). "Foreword: Unconstitutional Conditions, State Power, and the Limits of Consent". Harvard Law Review. 102 (1): 4–104.
  • ——— (1997). "The Clear View of The Cathedral: The Dominance of Property Rules". Yale Law Journal. 106 (7): 2091–2120. doi:10.2307/797162. JSTOR 797162.

Books

Casebooks
  • 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.
  • ———; Sharkey, Catherine M. (2016). Cases and Materials on Torts (11th ed.). New York: Aspen Casebooks. ISBN 978-1454868255.

See also

References
Footnotes
  1. Ely (2006), p. 421.
  2. Shapiro, Fred (November 1, 2021). "The Most-Cited Legal Scholars Revisited". University of Chicago Law Review. 88 (7). ISSN 0041-9494.
  3. Frey (2009).
  4. Troy Senik; Richard Epstein (July 29, 2015). "The Education of a Libertarian". The Libertarian Podcast (Podcast). Hoover Institution. Retrieved September 6, 2015.{{cite podcast}}: CS1 maint: multiple names: authors list (link)
  5. Hannemann, Benjamin. "Richard A. Epstein". www.bradleyfdn.org. Retrieved July 27, 2020.
  6. "Interview with Richard Epstein". Interviews with Max Raskin. Retrieved July 1, 2021.
  7. "Classical Liberal Institute launched at conference on Fannie Mae and Freddie Mac". NYU School of Law. September 20, 2013. Retrieved July 12, 2015.
  8. Richard A. Epstein, University of Chicago.
  9. "Universität Siegen zeichnet Richard A. Epstein aus" (in German). Retrieved October 11, 2018.
  10. "Hoover Fellow Richard A. Epstein Honored With Brigham-Kanner Property Rights Prize From College of William and Mary Law School". Hoover.org.
  11. "Recipients – The Bradley Prizes". Archived from the original on February 26, 2015. Retrieved February 26, 2015.
  12. "News & Media | University of Chicago Law School". www.law.uchicago.edu.
  13. Steve Chapman (April 1995). "Takings Exception". Reason. Retrieved October 26, 2008.
  14. Epstein, Dick. "AIDS, Testing and the Workplace". University of Chicago Legal Forum. 1988: 33–56.
  15. Richard A. Epstein (July 12, 2010). "Judicial Offensive Against Defense Of Marriage Act". Forbes. Retrieved September 6, 2010.
  16. Richard A. Epstein (June 29, 2015). "Hard Questions On Same-Sex Marriage". Hoover Institution. Retrieved January 3, 2018.
  17. Mark Joseph Stern (July 2, 2015). "Richard Epstein on Obergefell". Slate.
  18. "AIDS drugs: Are property rights and human rights in conflict?". Financial Times. May 15, 2007. Archived from the original on December 10, 2022.
  19. "The Case Against Reparations for Slavery". Hoover Institution. Retrieved February 23, 2022.
  20. Claybourn, Joshua, ed. (2019). Our American Story: The Search for a Shared National Narrative. Lincoln, NE: Potomac Books. pp. 175–188. ISBN 978-1640121706.
  21. Richard A. Epstein (March 23, 2020). "Coronavirus Overreaction". Hoover Institution. Retrieved March 29, 2020.
  22. "Coronavirus USA Cases Deaths". Washington Post. June 1, 2020.
  23. Heer, Jeet (March 30, 2020). "All the President's Crackpots". The Nation. ISSN 0027-8378. Retrieved April 2, 2020.
  24. Coaston, Jane (March 31, 2020). "The legal scholar who shaped Trump's coronavirus response defends his theory". Vox. Retrieved April 2, 2020.
  25. Richard A. Epstein (March 16, 2020). "Coronavirus Perspective". Hoover Institution. Archived from the original on March 28, 2020. Retrieved March 29, 2020.
  26. Douglass, Rex W. (March 30, 2020). "How to be Curious Instead of Contrarian About COVID-19: Eight Data Science Lessons From 'Coronavirus Perspective' (Epstein 2020)". Retrieved April 26, 2020.
  27. Masnick, Mike (April 22, 2020). "Famed Law Professor Richard Epstein's Ever Changing Claims About How Many People Will Die From COVID-19". Techdirt. Retrieved April 26, 2020.
  28. Richard A. Epstein (March 16, 2020). "Coronavirus Perspective". Hoover Institution. Archived from the original on April 5, 2020. Retrieved April 26, 2020.
  29. Stanton, Zack (December 29, 2020). "The Worst Predictions of 2020". Politico. Retrieved December 30, 2020.
  30. "Richard Epstein Can't Stop Being Wrong About the Coronavirus". April 21, 2020.
  31. Isaac Chotiner (March 30, 2020). "The Contrarian Coronavirus Theory That Informed the Trump Administration". The New Yorker. Retrieved April 10, 2020.
  32. "Trump weighs restarting economy despite warnings from U.S. public health officials". The Washington Post. 2020.
  33. Richard A. Epstein (June 6, 2020). "Red state, blue state". Las Vegas Review-Journal. Retrieved July 18, 2020.
  34. Shapiro, Fred R. (2000). "The Most-Cited Legal Scholars". Journal of Legal Studies. 29 (1): 409–26. doi:10.1086/468080. S2CID 143676627.
  35. 2014 Scholarly Impact – Leitner Rankings.
  36. "Richard Epstein lays down the law". www.chicagomaroon.com. Retrieved April 15, 2020.
  37. "Who's Getting Your Vote?". Reason. November 2004. Retrieved October 27, 2008.
  38. "Task Force members" (PDF). The Constitution Project. December 17, 2010. Archived from the original (PDF) on July 25, 2011. Retrieved June 11, 2015.
  39. "Task Force on Detainee Treatment Launched". The Constitution Project. December 17, 2010. Archived from the original on December 15, 2010.
  40. "Think tank plans study of how US treats detainees". Wall Street Journal. December 17, 2010. Archived from the original on December 18, 2010.
  41. "Special Edition: Epstein and Levin on Progressivism, Classical Liberalism, and Conservatism", The Libertarian Podcast, Hoover Institution, February 4, 2015.
  42. Piper, J. Richard (1997). Ideologies and Institutions: American Conservative and Liberal Governance Prescriptions Since 1933. Rowman & Littlefield. ISBN 978-0847684595.
  43. "Defining Richard Epstein: A renowned libertarian takes on a new mantle | NYU School of Law". www.law.nyu.edu. Retrieved October 7, 2016.
  44. "U.S. Involvement in War | C-SPAN.org". www.c-span.org.
  45. Epstein, Richard A.; Raskin, Max (January 29, 2023). "Israel's Proposed Judicial Reforms Aren't 'Extreme'". Wall Street Journal. Retrieved January 29, 2023.
  46. https://thehill.com/opinion/education/4247809-us-academic-leaders-must-stop-coddling-genocidal-hatred-of-israel-on-campus/
  47. "The Chicken or the Egg?". February 13, 2014.
  48. Troy Senik, Richard Epstein (March 31, 2015). "Indiana, Discrimination, and Religious Liberty". The Libertarian (Podcast). Hoover Institution. Retrieved April 11, 2015.
Works cited

Further reading
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