Reason.tv: Richard Epstein on Barack Obama, his former Chicago Law Colleague


Few legal scholars have blown as many minds and had the tangible impact that Richard Epstein has managed. His 1985 volume, Takings: Private Property and the Power of Eminent Domain is a case in point. Epstein made the hugely controversial argument that regulations and other government actions such as environmental regulations that substantially limit the use of or decrease the value of property should be thought of as a form of eminent domain and thus strictly limited by the Constitution. The immediate result was a firestorm of outrage followed by an acknowledgment that the guy was onto something.

As Epstein told Reason in a 1995 interview, "I took some pride in the fact that [Sen.] Joe Biden (D-Del.) held a copy of Takings up to a hapless Clarence Thomas back in 1991 and said that anyone who believes what's in this book is certifiably unqualified to sit in on the Supreme Court. That's a compliment of sorts…. But I took even more pride in the fact that, during the Breyer hearings [in 199X], there were no such theatrics, even as the nominee was constantly questioned on whether he agreed with the Epstein position on deregulation as if that position could not be held by responsible people."

Born in New York in 1943, Epstein splits faculty appointments at the University of Chicago and New York University; he's also a senior fellow at Stanford's Hoover Institution, an adjunct scholar at the Cato Institute, and a contributor to Reason. In books such as Forbidden Grounds: The Case Against Employment Discrimination Laws (1992) to Simple Rules for a Complex World (1995), and Skepticism and Freedom: A Modern Case for Classical Liberalism (2003), Epstein pushes his ideas and preconceptions to their limits and takes his readers along for the ride. A die-hard libertarian who believes the state should be limited and individual freedom expanded, he is nonetheless the consummate intellectual who first and foremost demands he offer up ironclad proofs for his characteristically counterintuitive insights into law and social theory.

Indeed, Epstein's enduring value may not be any particular legal or policy prescription he's offered over the years but rather his methodology. He believes in robust and unfettered argument and debate as a way of gaining knowledge. If you don't put your ideas out in the arena, you can't be doing your best work, he argues. "The problem when you keep to yourself is you don't get to hear strong ideas articulated by people who disagree with you," he says.

Reason's Nick Gillespie interviewed Epstein at NYU's law building in October. The conversation was wide-ranging and high-energy–another Epsteinian virtue. They talked about legal challenges to ObamaCare, the effects of stimulus spending and TARP bailouts, and a former University of Chicago adjunct faculty member by the name of Barack Obama, with whom Epstein regularly interacted in the 1990s and early 2000s.

"He passed through Chicago without absorbing much of the internal culture," says Epstein of the president. "He's amazingly good at playing intellectual poker. But that's a disadvantage, because if you don't put your ideas out there to be shot down, you're never gonna figure out what kind of revision you want."

Filmed and edited by Jim Epstein (no relation) with help from Michael C. Moynihan and Josh Swain.

Approximately 12.30 minutes.

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  1. I took some pride in the fact that [Sen.] Joe Biden (D-Del.) held a copy of Takings up to a hapless Clarence Thomas back in 1991 and said that anyone who believes what’s in this book is certifiably unqualified to sit in on the Supreme Court. That’s a compliment of sorts…

    I’d say that’s an unqualified endorsement for non-morons.

  2. How about “transcripts” for those of us not inclined to sit through the clips. An opportunity for a web business out there?

    1. Yeah, I’m stuck at work where streaming video is restricted. I would find those transcripts handy.

    2. speakertext.com

  3. If only Obama were set in concrete.

  4. Richard Epstein is absolutely outstanding. There is no one to equal him in contemporary libertarian scene. I wish he was 20 years younger. I see no replacement for him 🙁 (no the Volokh people don’t come close, not even Randy Barnett)

  5. Joe Biden never misses an opportunity to make an ass of himself, does he?

    A proper retort to his statement would be, “Anyone who doesn’t believe what’s in that book is certifiably unqualified to sit on a city council, let alone in the US Senate.”

  6. Mr Epstein is smart enough to know that means testing is redistribution.

  7. Mr Epstein is smart enough to know that means testing is redistribution.

  8. Mr Epstein is smart enough to know that means testing is redistribution.

  9. Mr Epstein is smart enough to know that means testing is redistribution.

  10. Mr Epstein is smart enough to know that means testing is redistribution.

    1. I was wondering: is Mr. Epstein smart enough to know that means testing is redistribution?

      1. I don’t think you can assume that he is opposed to all redistribution. Most libertarians seem to favor helping the poor. The problem is with universal programs that are not means-tested.

  11. Wow, one of the most fascinating interviews I’ve seen in a while, and I must admit my ignorance of Dr. Epstein until now. Thank you, Nick, Michael and Josh. I’m hoping to read some of his stuff (being a layman, I hope I can get through it!).

    Happy Thanksgiving, guys. Thanks is to be given for Reason.com


  12. Motherfucking simple fucking, goddamn FLAT TAX is a fucking huge, simple (not easy) solution to our economic instability. Can we see some more advocacy for some goddamn tax reform around here, fer crissake.

    I support the flat tax, repeal of the income tax, an elimination of all other taxes, and eventually one simple fucking national sales tax.

    Imagine a world where assholes that decide to run for “higher office” can only run on either raising (yeah, right, fuckhead) or lowering our one fucking simple tax.

    1. Oh, and Epstein 2012!

    2. And once we get the flax tax we can go straight to substituting direct fees for taxes.

  13. Sen.] Joe Biden (D-Del.) held a copy of Takings up to a hapless Clarence Thomas back in 1991 and said that anyone who believes what’s in this book is certifiably unqualified to sit in on the Supreme Court

    That’s because the “D” after Biden’s name stands for Douchebag. He’s a flaming horse’s ass.

    In law school, I had to do a bunch of legal research on the issue of regulatory takings. The lesson I learned is that a claim of regulatory takings is pretty much fucked from the start. I recall one case in which a guy had bought a bunch of land in a coastal area to build a house on, then a law was passed (can’t remember if it was state or federal) that prevented him from building anything on nearly any part of the land. I don’t recall the details, but it was something like he could have built on about 30 acres, but after the new legislation, there was about 1/2 acre he could build on.

    He had appraisals showing the restriction on use of his property reduced the value from many hundreds of thousands of dollars to a few tens of thousands.

    Because the legislation still allowed him to build something somewhere on the land, and the property had not become completely and totally valueless, the court ruled it was not a taking. Mainly because buying real estate for development is speculative anyhow, so there’s no guarantee it’s not going to reduce in value. So sorry, you’re hosed.

    A regulation or law basically has to render your property completely and utterly useless and worthless for you to even have a chance of being successful with a regulatory takings claim. If it still has some legal use and value, you can pretty much forget your takings claim.

    At least that’s what I recall from the research I did several years ago.

    1. As a layman, I recall that case. Two ocean front lots, in an area with other homes. They were grandfathered but he was forbidden to build. So he didn’t prevail, huh.

    2. As a civil engineer who has worked all over the country – these takings occur all the time and at every level of government.

      From extra stormwater regulations, to increased landscaping requirements, to new parking restrictions, to just about anything you can think of – they all add up to severely limit what can be done with a piece of property, while adding significant permitting costs as well.

      Buying and holding land as an investment, is very risky as its value can be taken away by just about anyone in government.

  14. 199X?

  15. He’s come a long way from Welcome Back Kotter.

    1. Up your nose with a rubber hose!

  16. One reason I love listening to Epstein talk is that he not only speaks in complete sentences, he speaks in complete PARAGRAPHS … fully formed, from his brain to his mouth w/o stuttering or hemming and hawing.

    1. He is scary smart and a tremendous writer. I don’t always agree with him. But he is clearly a giant brain. He puts his liberal counterparts like Larry (Elana can you please cover up my plagerism) and the magic latina to absolute shame.

    2. Agreed, Gene. This man is incredible.

    3. Yeah. He’s awesomely articulate.

    4. Just curious. Did you come up with the “speaks in paragraphs” meme just now, or did you read the Mark Twain autobiography post the other day, which talks about Twain dictating entire, composed paragraphs?

  17. Gene, how right you are, well worth the time to watch, Wow!

  18. Kick. Ass.

    Makes me want to go back to school just to sit in his classes.

  19. I don’t know that I agree with everything either, it’s pretty radical. But he’s one smart MF.

  20. Epstein has pushed as hard against the official line regarding Obama as a member of the Chicago faculty can. Obama was hired as an Adjunct directly by Geoffrey Stone, who was Dean of the Law School and later Provost of the University. When Stone stepped down from that position Obama’s somewhat unusual connection with the school ended, although his wife’s continued. Both had been hired, she as first an Administrator in the office of the Dean of The College and then at the Medical Center where her salary tripled when he was elected to the Senate, at the behest of University Trustee Penny Pritzker. The school went to great lengths during the 2008 campaign to endorse Obama as if he was a real faculty member, even though he never went through a faculty hiring review or participated in the intellectual life of the University.

  21. +100 at Gene

    I really wanted that interview to go on for another hour.

  22. Might be nice if you just ran the whole interview, instead of this highly edited production. We don’t have the attention spans of coke addicts with ADD.

  23. Great interview, Nick. Epstein is an outstanding scholar and advocate for liberty.

  24. Lifeofthemind–

    That was another criticism I was going to make but I assumed Epstein was being diplomatic. The truth is the law profs at U of C didn’t think much of Barry. No reason to get into that here though.

  25. Wish he was president

    1. I wish he were on the SCOTUS.

  26. When Epstein announced that Obama was more dangerous than Bush due to the current President’s deficiencies in understanding complex economic issues, I wish he had elaborated a bit more. Bush’s alleged astuteness gave America the federalization of the public school system, the prescription drug entitlement program, the Patriot Act, record increases in foreign aid programs, a fraudulent war and of course, TARP. A case can certainly be made for Obama being the greater evil because he is spending more and taking less time to spend it, but Epstein should have expressly declared that neither Bush or Obama’s flawed economic schemes are prudent or acceptable. Without such emphasis, Epstein, by way of omission, unwittingly helps an amnestic America set the stage for the return of another corporatist, income distributing, religio-war neocon to occupy the White House in 2012.

    1. Ooooh! I can almost sense the warm fuzzy feeling of the self-imposed grandeur you gave yourself when writing that!

  27. Epstein’s assessment of Our Dear Leader is very similar to Mike Flynn’s, is it not?

  28. I’ve been working my way through Bernard Siegan’s “Land Use Without Zoning”. While it’s interesting, it was last updated in 1972. I wish Epstein would take a crack at revisiting Siegan’s detailed comparison of Houston’s land use policies to similar cities with typical zoning regulations.

    1. It won’t last. “City planners” have become more and more central planning oriented and pro-zoning as time goes on

  29. It makes me wonder where Mr. Epstein was in 2001 when the Heritage Foundation was writing things like this:

    “Under current policies, the federal government will collect $2.9 trillion more in tax overpayments than it will be able to use to pay down national debt held by the public. This money must be spent by the federal government, invested in the private sector, returned to taxpayers, or some combination of all three. Regrettably, many policymakers have advocated allowing the federal government to invest these excess balances in the private sector. This would be a formula for disaster, which would threaten the economy as well as the retirement security of all Americans.”


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