Richard Allen Epstein (born April 17, 1943) is an American legal scholar known for his writings on subjects such as torts, contracts, property rights, law and economics, classical liberalism, and libertarianism. Epstein is currently the Laurence A. Tisch Professor of Law and director of the Classical Liberal Institute at New York University, 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.
Richard A. Epstein
Epstein at George Mason University Scalia Law School in 2018
|Education||Columbia University (B.A.)|
Oxford University (1st)
Yale University (LL.B.)
|Employer||New York University|
University of Chicago
|Known for||"Takings" law, law and economics, classical liberalism|
|Spouse(s)||Eileen W. Epstein|
|Relatives||Paul Reiser (first cousin)|
|Awards||Bradley Prize (2011)|
American Academy of Arts and Sciences (1985)
Epstein's writings have extensively influenced American legal thought. 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 taken by Legal Affairs as one of the most influential legal thinkers of modern times. 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. He has been a member of the American Academy of Arts and Sciences since 1985.
Life and careerEdit
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. He has two sisters. He attended elementary school at P.S. 161, a school that is now one of the Success Academy Charter Schools. 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.
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 at Yale University, 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.
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 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.. In 2005 the College of William & Mary awarded him the Brigham-Kanner Property Rights Prize for his contributions to the field of property rights,In 2011, he was awarded a Bradley Prize by the Bradley Foundation.
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, 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. 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. The book served as a focal point in the argument about the government's ability to control private property. The book has also influenced how some courts view property rights and has been cited by the U.S. Supreme Court four times, including the 1992 case Lucas v. South Carolina Coastal Council.
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, 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.
In The Classical Liberal Constitution: The Uncertain Quest for Limited Government, he employs close textual reading, historical analysis, and political and economic theory to urge a return to the classical liberal theory of governance that animated the framers' original text, and to the limited government this theory supports.
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."
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." 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. In 2008, he was chosen in a poll taken by Legal Affairs as one of the most influential legal thinkers of modern times. 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.
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. Epstein says he is "certainly a Calvin Coolidge fan; he made some mistakes, but he was a small-government guy". Epstein served on The Constitution Project's Guantanamo Task Force.
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." He has also been characterized as a libertarian conservative. During a debate with Chris Preble in December 2016, Epstein identified himself as being a "libertarian hawk."
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.
- 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.
- ——— (1983). "A Common Law for Labor Relations: A Critique of the New Deal Labor Legislation". Yale Law Journal. 92 (8): 1357–1408.
- ——— (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.
- ———; 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.
- Frey (2009).
- Troy Senik; Richard Epstein (29 July 2015). "The Education of a Libertarian". The Libertarian Podcast (Podcast). Hoover Institution. Retrieved 6 September 2015.
- "Classical Liberal Institute launched at conference on Fannie Mae and Freddie Mac". NYU School of Law. 20 September 2013. Retrieved 12 July 2015.
- Richard A. Epstein, University of Chicago.
- "Universität Siegen zeichnet Richard A. Epstein aus" (in German). Retrieved 2018-10-11.
- "Hoover Fellow Richard A. Epstein Honored With Brigham-Kanner Property Rights Prize From College of William and Mary Law School". Hoover.org.
- Recipients – The Bradley Prizes
- Ely (2006), p. 421.
- News release
- Steve Chapman (April 1995). "Takings Exception". Reason. Retrieved 2008-10-26.
- Richard A. Epstein (2010-07-12). "Judicial Offensive Against Defense Of Marriage Act". Forbes. Retrieved 2010-09-06.
- Richard A. Epstein (2015-06-29). "Hard Questions On Same-Sex Marriage". Hoover Institution. Retrieved 2018-01-03.
- Mark Joseph Stern (2015-07-02). "Richard Epstein on Obergefell". Slate.
- Claybourn, Joshua, ed. (2019). Our American Story: The Search for a Shared National Narrative. Lincoln, NE: Potomac Books. pp. 175–188. ISBN 1640121706.
- Shapiro, Fred R. (2000). "The Most-Cited Legal Scholars". Journal of Legal Studies. 29 (1): 409–26. doi:10.1086/468080.
- "Who Are the Top 20 Legal Thinkers in America?". Legal Affairs. Retrieved 2008-07-04.
- 2014 Scholarly Impact – Leitner Rankings.
- "Who's Getting Your Vote?". Reason. November 2004. Retrieved 2008-10-27.
- "Task Force members". The Constitution Project. 2010-12-17. Archived from the original (PDF) on 2010-12-18. Retrieved 2015-06-11.
- "Task Force on Detainee Treatment Launched". The Constitution Project. 2010-12-17. Archived from the original on 2010-12-18.
- "Think tank plans study of how US treats detainees". Wall Street Journal. 2010-12-17. Archived from the original on 2010-12-18.
- "Special Edition: Epstein and Levin on Progressivism, Classical Liberalism, and Conservatism", The Libertarian Podcast, Hoover Institution, 4 February 2015.
- Piper, J. Richard (1997-01-01). Ideologies and Institutions: American Conservative and Liberal Governance Prescriptions Since 1933. Rowman & Littlefield. ISBN 978-0847684595.
- "Defining Richard Epstein: A renowned libertarian takes on a new mantle | NYU School of Law". www.law.nyu.edu. Retrieved 2016-10-07.
- "US INvolvement in War.," Dec. 12, 2016
- Troy Senik, Richard Epstein (31 March 2015). "Indiana, Discrimination, and Religious Liberty". The Libertarian (Podcast). Hoover Institution. Retrieved 11 April 2015.
- Works cited
- Ely, James W. (2006). "Impact of Richard A. Epstein" (PDF). William & Mary Bill of Rights Journal. 15 (2): 421–28.
- 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 23 March 2015.
- 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