Impact of Richard A. Epstein
Ely, James W., The William and Mary Bill of Rights Journal
It is a widely accepted premise that Professor Richard A. Epstein has exercised a pervasive influence on American legal thought. In a much quoted statement, Dean William Michael Treanor, for instance, has declared: "[a]lmost certainly, in recent years Professor Richard Epstein has influenced political discourse about the Takings Clause more than any other academic."1 Another observer asserted that Professor Epstein "provided the intellectual framework for the property rights movement."2 In a dramatic movement, Senator Joseph R. Biden, Jr., held up Epstein' s book on takings and repeatedly interrogated Supreme Court nominee Clarence Thomas as to whether he agreed with Epstein's position regarding the constitutional protection of economic rights.3 In 2001, a prominent law professor claimed that "in recent years it appears that scholarship by those on the Right ... has had more profound effects on social policy than has scholarship by those on the Left."4 To support this contention he cited Epstein's book on takings.5
It should be noted that many of these assertions about Epstein's supposed influence have been advanced by his critics. They seem to almost delight in picturing Epstein as a gray eminence whose nefarious views are poisoning the legal culture. But more sympathetic observers have also trumpeted his impact. Henry G. Manne, for example, insisted in 1988 that Epstein was "already beginning to have a substantial influence on a new debate" over economic rights.6
How accurate are these claims? Any attempt to measure the impact of a particular scholar is fraught with hazard. There are no easy or mechanical guideposts by which to assess a person' s influence on judges, legislatures, or the legal culture generally.7 It seems fair to conclude that most legal scholarship has no impact whatsoever.8 Despite these cautionary comments, I hope in these brief remarks to evaluate Professor Epstein' s influence upon current legal thought regarding the rights of property owners within our constitutional scheme.
I start by assessing his impact on judicial decisions pertaining to property rights. For years, Professor Epstein has been the leading academic spokesman in support of a more vigorous interpretation of the property clauses of the Constitution. His primary focus has been upon the Takings Clause of the Fifth Amendment. Yet, contrary to the commentators noted above, one must conclude that Epstein's impact upon judicial decisions interpreting this clause has been slight. The Supreme Court has rarely cited Epstein's work and then only in connection with peripheral or noncontroversial points.9 Citations of his leading work, Takings: Private Property and the Power of Eminent Domain, by lower federal and state courts have similarly been infrequent. Even when cited by courts, it is far from clear that the work had a decisive influence on the outcome of particular cases.10 In fact, several judicial opinions comment on Epstein's views only to reject them.11 A line of celebrated regulatory takings decisions, from Nollan v. California Coastal Commission12 through Dolan v. City of Tigard,13 however welcome to property rights enthusiasts, fell well short of adopting Epstein's analysis of takings issues. Epstein's argument that rent control constitutes a type of regulatory taking14 has yet to convince courts.15 Even during recent terms, the Supreme Court majority opinions did not betray the slightest influence of Epsteinian thinking.16
In addition to his efforts to strengthen the regulatory takings doctrine and put some teeth into the "public use" requirement, Epstein has sharply criticized the determination of "just compensation" in eminent domain cases.17 He has charged that courts systematically undercompensate owners and approve valuations that do not make the loser whole.18 Such inadequate valuations, of course, undercut the protective function of the Takings Clause. To date, however, courts have not demonstrated any interest in revisiting the contested question of just compensation. …