Richard Epstein

Richard A. 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.[2] He has two sisters. He attended elementary school at P.S. 161, a school that is now one of the Success Academy Charter Schools.[3] 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.[3]

Epstein attended Columbia University as an undergraduate student in the early 1960s. He had wide-ranging academic interests and did not wish to select a traditional single major, and obtained special permission from the university to pursue a self-selected program of study across the three areas of sociology, philosophy, and mathematics. He graduated with a B.A. summa cum laude in 1964. 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 to attend Oxford, where he was a member of Oriel College and earned a first-class honours B.A. in jurisprudence in 1966. He then returned to the United States to attend the Yale Law School, graduating with an LL.B. cum laude in 1968.

After graduating from law school, Epstein was hired as an assistant professor of law at 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 New York University as its inaugural Laurence A. Tisch Professor of Law. 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.[4]

Since 2001, Epstein has served as the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, a prominent American public policy think tank located at Stanford University.

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.[5] 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 2003, Epstein received an honorary LL.D. degree from the University of Ghent, and in 2018 received an honorary doctorate in law from the University of Siegen.[6] In 2005 the College of William & Mary awarded him the Brigham-Kanner Property Rights Prize for his contributions to the field of property rights,[7] In 2011, he was awarded a Bradley Prize by the Bradley Foundation.[8]

Epstein became famous in the American legal community in 1985 with Harvard University Press' publication of his book Takings: Private Property and the Power of Eminent Domain. In Takings, 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 its publication.

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.”[9]

In 1991, during Clarence Thomas' Supreme Court Justice confirmation hearings, 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 U.S. Supreme Court four times, including the 1992 case Lucas v. South Carolina Coastal Council.[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 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. For instance, drawing on Gary Becker, he argues that the Civil Rights Act and other anti-discrimination legislation would be better if they were 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,[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.

He has criticized the Supreme Court ruling in Obergefell v. Hodges.[13][14] In 2007, Epstein defended the intellectual property rights of pharmaceutical companies against the cheaper, generic production of AIDS drugs, claiming that "disregarding property rights in the name of human rights reduces human welfare around the globe."[15]

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."[16]

In March and April 2020, Epstein wrote several essays published by the Hoover Institution giving a contrarian account of the ongoing coronavirus outbreak, and warning against extensive containment and mitigation measures by the US government, which he identified as an "overreaction".[17] In a piece published on March 16, he argued that the term pandemic is not one to be used lightly and that the virus should be allowed to run its course, predicting there would ultimately be 500 US deaths. In early June the US death total passed 100,000 persons.[18] On March 24, when the fatality number had already passed 500, Epstein added an "Correction & Addendum", in which he raised his forecast to 5000 deaths,[19][20][21] without changing the underlying model that had lead him to his first death count estimate.[22] On April 6, when the death toll had already far surpassed his earlier predictions, he again revised that figure, with the "Correction & Addendum" section now suddenly declaring (under the wrong datestamp "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 in the earlier article versions had been misspellings of 50,000.[23] After several news reports about Epstein's ever-increasing estimates, on April 21 an editor's note appeared on the website, which explained the latest changes as an "editing error" and clarified, that the author's original prediction had been 500 deaths.[24] 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." His essays, containing a number of factual errors and misconceptions about the SARS-CoV-2 virus, circulated in conservative circles and in the White House upon their publication.[25][26] He continued to argue against infection prevention measures in April 2020. In an essay published on April 20 he argued that “the response of the state governors to the coronavirus outbreak has become far more dangerous than the disease itself”, claiming that the number of deaths had been exaggerated.[27]

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.[28] In 2008, he was chosen in a poll taken by Legal Affairs as one of the most influential legal thinkers of modern times.[29] 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.[30]

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".[31] He has voted Libertarian.[32] Epstein says he is "certainly a Calvin Coolidge fan; he made some mistakes, but he was a small-government guy".[32] Epstein served on The Constitution Project's Guantanamo Task Force.[33][34][35]

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."[36] He has also been characterized as a libertarian conservative.[37][38] During a debate with Chris Preble in December 2016, Epstein identified himself as being a "libertarian hawk."[39]

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.[40]

Epstein has described himself as "a rather weak, non-practicing Jew."[41]

• Epstein, Richard A. (1973). "A Theory of Strict Liability". Journal of Legal Studies. 2 (1): 151–204. doi:10.1086/467495.
• ——— (1975). "Unconscionability: A Critical Reappraisal". Journal of Law and Economics. 18 (2): 293–315. doi:10.1086/466814.
• ———; 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.
• ——— (1979). "Nuisance Law: Corrective Justice and Its Utilitarian Constraints". Journal of Legal Studies. 8 (1): 49–102. doi:10.1086/467602.
• ——— (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.
• ——— (1985). Takings: Private Property and the Power of Eminent Domain. Cambridge: Harvard University Press. ISBN 0674867297.
• ——— (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.
• ———; Sharkey, Catherine M. (2016). Cases and Materials on Torts (11th ed.). New York: Aspen Casebooks. ISBN 978-1454868255.
• ——— (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 978-0226775326.
• ——— (1995). Simple Rules for a Complex World. Cambridge: Harvard University Press. ISBN 978-0674808218.
• ——— (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.
• ———; Sunstein, Cass R. (2001). The Vote: Bush, Gore & the Supreme Court. Chicago: University of Chicago Press. ISBN 978-0226213071.
• ——— (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.
• ——— (2020). The Dubious Morality of Modern Administrative Law. Lanham: Rowman & Littlefield. ISBN 978-1-5381-4149-6.

• Libertarian theories of law

Footnotes

Works cited

• Ely, James W. (2006). "Impact of Richard A. Epstein" (PDF). William & Mary Bill of Rights Journal. 15 (2): 421–28.CS1 maint: ref=harv (link)
• 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
• Frey, Jennifer S. (2009). "Introducing Richard Epstein". NYU Law Magazine. Retrieved March 23, 2015.

• Steelman, Aaron (2008). "Epstein, Richard A. (1943-)". In Hamowy, Ronald (ed.). Epstein, Richard A. (1943– ). The Encyclopedia of Libertarianism. Thousand Oaks, CA: SAGE; Cato Institute. pp. 153–54. doi:10.4135/9781412965811.n96. ISBN 978-1412965804. LCCN 2008009151. OCLC 750831024.

Wikiquote has quotations related to: Richard Epstein

• 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