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Thanks for posting the video. Richard Epstein is a real brain. It is sad that he is not more widely respected in the legal community of Constitutional scholars (you know, people like Dworkin, Tribe, Brest, Barnett, etc.). In Constitutional interpretation, there is no active libertarian force in the literature (Barnett is recognized as an originalist). Really, the debate is over liberals wanting to expanisively read the document while conservatives emphasize judicial restraint and deference to legislatures. The "conservative judicial activism offered by ... Richard Epstein" is, as originalist scholar Keith Wittington has said, to be actively avoided. For this reason I have not read his Constitutional stuff, but I understand that he has very radical (unusual) readings of certain clauses, such as The Spending Power and Takings Clause (i.e. widely divergent from the accepted reading of these clauses).


At last count, Epstein was among the most cited legal scholars, so clearly he is not being ignored. The work you are talking about is _Takings_ as well as _Forbidden Grounds_ (which is about 1964).

But my favorite work of his is _Simple Rules for a Complex World_.

I hope you get a chance to read his work in your law school curriculum. Do you read Posner at all in your classes?


Richard is an eternal delight and, I'm pleased to say, a friend. He always holds up his end of an argument very well.

Thanks for the post.

Dr. Boettke,

Yea, there are all kinds of different fields of literature in "law." My impression is that his influence may be quite large in some areas, for example, property, torts, securities regulation? But at least in Constitutional Law, his unique reading of the Constitution does not figure *at all* into the academic discussion. The conservatives reference his name only pejoratively. But I have seen him defend his views on Youtube, and he does so quite well. Trouble is, if Supreme Court precedent in no way hints at these readings --- and they don't --- then you can't do anything with them.

And, to answer your other point, the one saddening thing about law school is that you are expected to learn the material from "judicial opinions" even though there are excellent "hornbooks" out there. A "hornbook" is a textbook length treatise that summarizes and synthesizes *both* the case law and academic literature. That is how law schools should teach their courses. But for some reason every law student in the country learns their law from cases. So, to the extent that we read Posner in the classroom, it is only Posner as judge, if his opinions make it in the "Case Books" -- and even then, his court is just an appellate court. But it goes without saying that the Law and Economics movement is, in the legal context, identified almost exclusively with Richard Posner. It's funny, most Torts Professors, who spend a good amount of time teaching what is known as "The Hand Formula," don't even know the names of people like Coase, Demsetz, or Alchian.

But law is a fascinating subject. I am lucky to be able to be studying it.

Mr O'Driscoll,

You published the following comment over at Think Markets blog on May, 2 2011:

"The purpose of the panel was to discuss the 50th anniversary of the publication of the Constitution of Liberty. Only the moderator, Ron Hamoway, and Bruce Caldwell really kept to the topic. Soros at least discussed Hayek’s ideas, sometimes with insight and sometimes (as noted) in error.

Richard Epstein surprisingly did more damage to the liberal cause and Hayek’s message than did Soros. Epstein went off on Hayek for opposing regulation when it is needed (focusing on refusals to deal). Epstein elevated a theoretical issue — natural monopoly — into a major practical issue of law.

Epstein also violated the Buchanan rule by discussing regulation in an idealized form rather than as actually practiced. He ignored the fact that regulatory agencies get captured by the industry, and perpetuate the problem they were designed to regulate. Railroad regulation was a classic example, and financial services regulation is a current one. I know Epstein knows better.

I have long said that our movement is most harmed by our friends than our enemies."

Have you changed your mind regarding Richard Epstein?


I completely agree with Epstein's comments. But we in the pro-trade group must do a better job of addressing the problem of elites. The higher your income, the more special rules there are to help keep out the competition. The poor are the most effectively excluded from markets, the working class almost as much, and so on. The system *is* rigged and we need to say that *before* we explain the free-market theory of why income inequality is not necessarily a bad thing.


Epstein disappointed that day. I devoted so much space to his comments because he was uncharacteristically obtuse that day.

If I were offering constructive criticism of the video, it would be along the lines made by Roger. So, what Roger said.

Regarding the role of inequality in spurring economic growth, this has serious limits. Crucial is that the inequality be perceived (and really be due to) peoplr making innovations, wise investments, working hard, saving more, and so on. To the extent that it is due to inheritance (increasingly so in the US with the ending of "death taxes") or corruption or monopoly power or other such methods not popularly viewed as socially acceptable, it can become counterproductive.

It should be kept in mind that simple global regresions of either real per capita income levels as well as growth rates of real per capita income levels with levels of income inequality tend to be negative, albeit with numerous outliers.

Inequality is endemic to the human condition, no matter how economically inefficient it may be. My experience has been that parents (e.g. successful entrepreneurs in financial markets) will strive tirelessly to promote every opportunity and exploit every advantage they can for their children, even if their children are patently unfit for the job. That is just a basic fact of life. My father just married a woman whose father has all kinds of political and business connections in the St. Louis area. This is great news for me because I can use this connection to seek lucrative and powerful employment. The employment I eventually obtain will not be the result of my own individual merit, but will rather be due to the fact that I know Mr. "X." Is that fair? I am not so sure, but that is how the world works (at least outside academia, where individual merit counts for a great deal). And this guy's son's (i.e. my step-mom's brothers) are very powerful and wealthy lawyers, who I am sure reached these positions due solely to their father's connections. I am going to exploit those connections too. (:

I suggested that rapid and accelerating changes in the way that legal process work (the gathering and organization of documents and information) is staffed and priced has significantly influenced the extent of the associate layoffs and the reduction in entry-level hiring among larger law firms in the last few years. The result is that most large law firms have far fewer partnership-track associates today than they did, say, five years ago, and that seems unlikely to change substantially anytime soon, even as the economy recovers.

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