For a decade at the University of Chicago, Richard Epstein had been innocently minding his own business, teaching a variety of courses ranging from Roman Law to Workers' Compensation, and writing books, articles, and newspaper columns on a wide range of legal topics. Then along came the Reagan administration, which noticed that "Chicagoites" were talking about law and economics the way some conservatives were—in other words, like libertarians—and Epstein found he had some new friends.
The Heritage Foundation, for example, held a dinner for him so he could meet people in Washington, D.C. He has spoken at events sponsored by the Federalist Society, the Cato Institute, and the Manhattan Institute for Policy Research, among others.
About his new-found celebrity status the 42-year-old Epstein admits, "I find it very mystifying, but people tell me, 'You've got a lot of friends in Washington.' I am aware for the first time in my life that there are a lot of people out there who are 'pushing me.' It's a very strange feeling. It's nice, but it's also a little bit eerie."
There is less mystery here than modesty. Epstein has a broad reputation as a brilliant, wide-ranging scholar. His newest book, Takings: Private Property and the Power of Eminent Domain, has been greeted with wide acclaim. Moreover, his affiliation with the University of Chicago gives the (not entirely accurate) impression that he is a partisan of the school of Chicago-style economic analysis of the law that has given the conservative movement some of its most influential exponents.
Many of the leading conservatives from Chicago and other law schools are now on the bench, such as D.C. Circuit Judges Antonin Scalia and Robert Bork, in whose company Epstein recently found himself as a possible Supreme Court appointee in a poll of leading conservatives. Yet the Scalias and Borks advocate "judicial restraint"—that is, a circumscribed role for judges in interpreting the law. Epstein takes a different view: the mere fact that judges have often ruled incompetently on economic legislation is not an argument for abdicating judicial review in that area but for minimizing "the sum of the abuses that stem from legislative greed on the one hand, and judicial incompetence on the other." Says Epstein of the debate now raging on the judiciary's role: "I'm against activism in the sense that one ought not to push the Constitution beyond what the text requires. But I think the text requires a whole lot."
Property rights, for example, are not to be entrusted to legislative whim, but rather the legislature "has to be subject to powerful judicial restraint" to preserve and protect economic liberties. He would scrap much of the regulatory structure that emerged from the New Deal, such as government intervention in labor relations, which he says has led to "judicialization" of labor contracts.
Epstein is not, however, opposed to all forms of government intervention. "To state my position in a second," he says, "the greatest weakness of the classical libertarian position is that it does not acknowledge the place for any forced taking of property, even with compensation. Allow these exchanges and monitor the compensation, and one can account for the state and still keep it small."
Taxation, for example, would be justified by the provision by government of public goods. However, the requirement of compensation implies that there is no place for coerced transfers between private parties, and thus no place for any but a flat tax. "The flat tax says if you wish to raise the taxes on X, then you have to raise them on yourself." This, he argues, reduces the incentive to demand more government programs. The result would be "not a tiny state but not a huge one. Most of the things people find most offensive are eliminated." Yet he notes dangers: "Small-government advocates think that political convictions are enough; others think the political process has enormous degenerative force."
Why any coerced transfers at all? "You have to look at what the universe without forced exchanges looks like and see if it's stable. There's no taxation; unanimous consent can never be achieved. If everyone plays by the rules, this would be stable." But there's no way to stop someone from breaking the rules and taking property with no compensation, forming criminal gangs which would be worse than the government he advocates.
Apart from his jurisprudential pursuits, Epstein spends most of his time with his wife and three children. His daughter plays violin; he accompanies her on piano. He and his wife like to go to art galleries. He plays chess with his computer. "I love music generally, especially classical. I like to talk. I probably don't read as much as I should, but reading is much of what I do for a living. I edit the Journal of Legal Studies, which is on the interaction of law and everything else. Some years I edit 30 or 40 articles. I do most of my reading with my children—so I'm up on Laura Ingalls Wilder and starting on Huckleberry Finn."
Epstein did not set out in search of a political philosophy but acquired one by "a slow accretion" while he studied law at Oxford during the mid-'60s, reading 19th-century English legal cases. But that study may yet lead to an improved outcome for 20th-century American legal cases. His work is interesting as well as influential, so that even if one disagrees with him, there are compensations.
John Dentinger is a free-lance writer and a columnist for the LA Daily News.