Magazine article Reason

Grading Barack Obama: Libertarian Legal Scholar Richard Epstein on His Former University of Chicago Colleague

Magazine article Reason

Grading Barack Obama: Libertarian Legal Scholar Richard Epstein on His Former University of Chicago Colleague

Article excerpt

FEW LEGAL SCHOLARS have blown as many minds and impacted as many national arguments as Richard Epstein. His 1985 volume Takings: Private Property and the Power of Eminent Domain made the controversial argument that zoning, environmental regulations, and other government actions that substantially limit the use or decrease the value of property should be viewed as a form of eminent domain and thus strictly limited by the Constitution. The result was a firestorm of outrage, followed by a trickle of acknowledgment that maybe 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 [Stephen] Breyer hearings [in 1994], 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 his time between faculty appointments at the University of Chicago and New York University; he is 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), Simple Rules for a Complex World (1995), and Skepticism and Freedom: A Modern Case for Classical Liberalism (2003), Epstein has been pushing his ideas and preconceptions to their limits, taking readers along for a thrilling intellectual ride. Epstein, who writes a weekly column slugged "The Libertarian" for, is a die-hard individualist who believes the state should be limited and freedom expanded. He is also a consummate intellectual who demands of himself ironclad proofs for his characteristically counterintuitive insights into law and social theory.

Indeed, Epstein's enduring value may be not any particular legal or policy prescription he has 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. Editor Nick Gillespie interviewed Epstein at NYU's law building in October. 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 future 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 going to figure out what kind of revision you want."

A video version of this interview, filmed and edited by Jim Epstein with help from Michael C. Moynihan and Josh Swain, is online at

reason: The economy has lost 3.3 million jobs, consumer confidence is half its historical average, and unemployment is 9 percent. To what extent is Obama responsible for this?

Richard Epstein: He's not largely or exclusively responsible, but he's certainly added another nail into the coffin. The early George Bush--I think he got a little bit better through his term--and Obama have a lot in common. Bush wanted a pint-sized stimulus program that failed and Obama wanted a giant-sized stimulus program that failed. Neither of them is a strong believer in laissezfaire principles. …

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