Reconstructing Richard Epstein
Peñalver, Eduardo M., The William and Mary Bill of Rights Journal
A widespread, though often unspoken, fear among law professors is that we spend months writing one-hundred-page law review articles that, we suspect, are all too often read closely by a handful of second-year law review editors and colleagues only to disappear into the library stacks, never to emerge again. One good measure of a scholar's impact, then, apart from the frequency with which her ideas become enshrined in Supreme Court holdings or in legislative enactments, is the extent to which his ideas are read, considered, and debated. It follows from this that one of the greatest compliments a scholar can pay to a colleague is to engage his or her arguments, to take them seriously enough to disagree. By this measure, Richard Epstein's property writings are easily among the most significant bodies of property scholarship produced in the last half century. In any number of areas, from takings law to the law of covenants and nuisance, a work of scholarship is not complete until its author has carefully read and considered what Professor Epstein has to say about the matter.
Before discussing the substance of some of Professor Epstein's views on property, I want to offer him a word of thanks. I am in the habit of sending unsolicited drafts of my articles to people whose work I discuss, a practice recommended to me in my first year of teaching by several of my senior colleagues. I have never met Richard Epstein in person before this conference, but I have on a number of occasions sent him drafts of work in which I engaged his ideas, typically from a perspective that diverged in fairly dramatic ways from his own. In every instance, Professor Epstein has responded to me, often (amazingly) within hours, with helpful comments and suggestions for further reading. The more time I spend teaching and the busier my schedule becomes, the more impressed I am by the intellectual generosity reflected in this willingness to engage and assist a junior professor just embarking on an academic career.
It is in this spirit of gratitude that I attempt to repay some of my debt by briefly engaging, and respectfully disagreeing with, some of Professor Epstein's ideas about property. I would like to focus in particular on the most distinctive and, for many, the most problematic aspect of his property thought: his unique mixture of individualistic rights discourse with the aggregative methodology of utilitarian economic analysis. This mixture of perspectives is rooted deeply in Professor Epstein's work. One of his many important articles, for example, is a 1979 piece entitled Nuisance Law: Corrective Justice and Its Utilitarian Constraints} In a way, the title of that article puts into relief the broad contours of Professor Epstein's approach to property: he views property by and large as a system designed to embody and protect a robust libertarian conception of individual rights but also as a system that is at the same time bounded by utilitarian constraints. In a way, he is the conceptual mirror image of Ronald Dworkin, who views individual rights as constraining what otherwise appears to be a broadly utilitarian understanding of the common good.2 For Professor Epstein, under certain circumstances, utilitarian gains "trump" libertarian commitments.3
Professor Epstein's willingness to limit the reach of individual rights makes his theory of property substantially more plausible and durable than purer libertarian accounts, which are far too brittle to attract serious support among legal scholars. Nowhere is this clearer than in Professor Epstein's version of the "state of nature" story.4 Libertarian contractarians, like Robert Nozick, struggle with the transition from a state of nature characterized by self-interested individuals to a stable state community. The formation of the state is essential to the protection of property rights but its viability depends upon both cooperation and coercion. The former diverges from classical Uberai assumptions about human nature. …