Richard Epstein

Richard Epstein

Richard Epstein is the Peter and Kirsten Bedford Senior Fellow at Hoover. He also holds an endowed professorship at the University of Chicago Law School, where he directs the Law and Economics Program. As of 2007, he also became a visiting professor at New York University Law School. His areas of expertise include constitutional law, intellectual property, and property rights. His most recent books are The Case Against the Employee Free Choice Act (Hoover Press, 2009) and Supreme Neglect: How to Revive the Constitutional Protection for Private Property (Oxford Press, 2008).

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    • Dead Hand of the Living Wage

    | April 07, 2012 | 2:34 pm

    The next labor market battle in both the United States and Europe will be over the “living wage.” Long backed by both unions and progressive groups, the living wage looks like an old-fashioned minimum wage, with a critical twist. The national minimum wage, currently $7.25 an hour (up from $5.15 in 2006), applies to a wide range of workers in the public and private sector. In contrast, living-wage laws target only individuals who work in projects that get some sort of government subsidy. As the New York Times put it in an impassioned editorial about the proposed Fair Wages for New Yorkers Act, a city that doles out “hundreds of millions of dollars a year to private developers” should be in a position to ask them to pay decent wages to the workers whose jobs these subsidies created.

    The New York proposal was drafted to do just that. It called for imposing one of two living-wage requirements on employers who receive $1 million or more in discretionary financial assistance from New York City: either pay workers $10 per hour in wages plus benefits, or pay them $11.50 per hour without benefits. That works out to a wage boost of 58 percent for workers in that category. Needless to say, that basic requirement was riddled with exceptions for various small businesses and the like, all of which would raise compliance issues. Supporters of new social legislation always underestimate that problem.

    Backers defended the proposal by arguing that those who receive government subsidies ought to share them with the workers they hire. They also noted that at least one econometric study by the Center for American Progress concluded that cities that had adopted these proposals had the same level of employment growth as cities without living-wage requirements. The most charitable reading of this finding is that these subsidy programs fail to improve matters, owing to the many unanticipated consequences they introduce into both public finance and the labor market. The reality will prove far worse.

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    Observations on ObamaCare

    | April 03, 2012 | 6:58 pm

    There are a number of constitutional and logical slips in the seductive argument that Paul Krugman puts forward in favor of the constitutionality of the individual mandate.  First, the question why any form of health insurance involves a question of “interstate commerce” at all.  Under the current elastic and indefensible definitions of interstate commerce, any form of local activity that influences the quantity and price of goods in interstate commerce becomes itself a form of interstate commerce, at which point there is precious little that lies outside that domain.

    Note the potential reach of this argument  by the standard definition that Krugman embraces, getting sick and buying insurance influences the ability of the United States to deal with foreign nations, so that Congress can presumably regulate it as a form of commerce with foreign nations.  More impressively, since the health of their populations influences health in this country, why not say that the Constitution gives the Congress the power to expand the health care benefits that Canada, Great Britain and the rest of the world supplies to their own population.  It is a form of constitutional newspeak to treat all these local activities as though they were commerce among the several states, when they are, most emphatically anything but.

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    The Dubitable Constitutionality of the Affordable Care Act

    | March 27, 2012 | 11:02 am

    By now everyone knows that the Supreme Court will take up the watershed case of this century, when it examines the constitutionality of the Patient Protection and Affordable Care Act—the ACA or ObamaCare to both the friends and enemies of the Act. I have coauthored with Mario Loyola of the Texas Public Policy Foundation a brief that sets out our case against the constitutionality of the Act.  I have also written elsewhere about the complex historical evolution of the commerce clause.

    I am relieved to learn, after all, that the case against the individual mandate is so trivial that three eminent legal authorities, Jeffrey Toobin, Linda Greenhouse and Dahlia Lithwick, found it easy to put me out of my intellectual misery by announcing that the act is manifestly constitutional on the indubitable authority of Wickard v. Filburn, which in their view has become the constitutional pillar of a boundless federal power.  Indeed, their collective wisdom is such that the case for the constitutionality of ObamaCare is so self-evident that only dark political motives can account for the willingness to overturn a statute whose impeccable social credentials make it the culmination of a long overdue reform movement.

    Let me confess to be one of the unpersuadables.  There is of course a powerful correlation between those who praise ObamaCare and embrace its constitutionality.  There is none of the typical posturing which says that we’ll leave it to Congress to deal with the wisdom of the laws while we merely determine their constitutionality.  However on this question, turnabout is fair play, for we should look at the wisdom of statutes, or their lack thereof,  in order to orient ourselves with respect to their constitutionality.

    Start with Wickard, which in soothing terms had as its objective the “stabilization” of agricultural markets under the Agricultural Adjustment Acts, by allowing the government to even out prices during good times and bad.  All that is a polite way of saying that the government should get into the business of organizing agricultural cartels, which can then reduce output by burning excess crops or forcing land to remain idle in order to reduce supply. At the other end of these cartels lie consumers, who suffer manifestly from the high prices and reduced supply that made it all the harder for them to weather the 1930s depression.  Roscoe Filburn was a cartel-breaker because he sought to escape the regulation and increase supply by feeding his own grain to his own cows.

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    Obamacare: An Unconstitutional Misadventure

    | March 26, 2012 | 9:45 pm

    This week, the United States Supreme Court has on its plate the defining legal issue of our time—the constitutionality of the Patient Protection and Affordable Care Act (ACA), which I have already commented on from a doctrinal and historical perspective. In this column, I will show how fatal defects in Obamacare’s structure undermine the constitutional case for key provisions found in Title I of the law (“Quality, Affordable Health Care for All Americans”), which regulates the private insurance market.

    For openers, the ACA is subject to the law of unintended consequences. The law may proclaim that it protects patients when it in fact it restricts the health-care options of those it’s intended to protect. The ACA says that it will increase access to affordable care when in fact its endless mandates will drive up the cost of care. The false advertising of the ACA’s title conceals a wealth of difficulties with its internal design, which make its scheme unsustainable in the long run.

    One unfortunate byproduct of the obsessive emphasis on the individual mandate—the requirement to have health-care insurance or pay a fine—is that it diverts attention away from the many other unsound provisions of the law. The Supreme Court need not fear that striking down Title I of the ACA will deny Americans needed health care. Rather, its implementation will have that effect.

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    City Planners Run Amok

    | March 20, 2012 | 1:45 pm

    The Upper West Side (UWS) of New York City operates in a moral and political universe different from my own. Currently, its confident progressive worldview has precipitated a major land use controversy. On the urging of the UWS “community” and its elected officials, the City’s Department of Planning has endorsed this modest proposal “for new or expanding establishments” on Broadway, Columbus, and Amsterdam avenues. These are major commercial streets, yet the proposal seeks to limit store frontage on them to forty feet for general retail and twenty-five feet for banks.

    The proposal earns its “modest” label, because, as the Planning Department confidently notes, the rule would not limit the overall size of the business, the configuration of its interior space, or its kind of operations. Still, many businesses and banks currently exceed the proposal’s limit, often by multiples of four and five.

    The locals insist that this regulation is needed to preserve the distinctive character of the neighborhood from large banks and major retail chains, which gobble up valuable frontage in ways that drive out small local businesses. The UWS is said to be “largely unique” because the space available for commercial use is limited relative to the population density, driving rents up. The supporters of the bill are determined to protect the “mom-and-pop” stores from unapologetic corporate behemoths. The local community board has unanimously approved this proposal over the vocal opposition of the City’s commercial real estate interests and passage now awaits approval by the City Council and then the Mayor. Let’s hope it doesn’t happen.

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    (photo credit: India Amos)

    Can Congress Force Individuals to Buy Insurance?

    | March 14, 2012 | 11:30 am

    (photo credit: TexasGOPVote.com)

    Is Women’s Empowerment a Bureaucratic Imperative?

    | March 13, 2012 | 2:28 pm

    Times are tough. Both the European Union and the United States are facing stagnant economic growth, high levels of unemployment, excessive debt, and an aging population. I am not alone in urging the European Union and the United States to make major reforms of their labor markets as an essential step toward economic growth. Sadly, serious progress on reform has lagged behind on both sides of the Atlantic.

    Yet, in at least one respect, the United States is in far better shape than the European Union. I refer to the advancement of women in business, particularly their representation on corporate boards. For the EU, compulsion is the preferred path, while in the United States, to date, voluntary action is the name of the game.

    To see how the EU is marching off in the wrong regulatory direction, it is necessary to examine the recently released study of the European Commission, “Women in economic decision-making in the EU: Progress report.” Its major proposal is to require quotas for women on corporate boards—unless of course these boards reform themselves first by, ahem, “voluntary” action.

    This report is the brainchild of Luxembourg’s Viviane Reding, the Vice President of the European Commission and EU Commissioner for Justice, Fundamental Rights and Citizenship. Her politics are said to be “center-right,” which only shows how bad the intellectual climate in the EU has become. The report’s slick cover features a head-shot of a self-assured black-haired woman, behind whom, off to the side, is the blurry image of a smirking gray-haired man. With a message like that, who could oppose the proposal?

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    The Diversification of Supreme Court Justices

    | March 07, 2012 | 4:08 pm

    A recent article in the Washington Post on the composition of the Supreme Court reports on the work  of Professor Benjamin Barton, whose data analysis points out the exceptional composition of the current Court.  As a boy, I grew up in Brooklyn, New York, and thus take some pride in the fact that four of the five boroughs are represented on the Supreme Court — and still further pride in the fact that Justices Antonin Scalia and Elena Kagan did tours of duty living in Hyde Park and teaching at one of my academic homes, the University of Chicago.

    Yet that form of personal pride does not easily segue into sound social policy.  Barton is right to insist that the composition of the Court as a body is not simply a matter of toting up the individual competences of individual Justices.  The synergies from the mix really matter as well.  Barton stresses the similarity of backgrounds, in that all the Justices grew up within the government system, either as lawyers on the appellate courts or operatives in the Justice Department or the White House.  There is an evident want of hybrid vigor that comes when all the Justices have similar backgrounds.

    The question is how does this play out when there are evident ideological divergences among the justices? One dimension that I think is important is the direct exposure to private law subjects, which for these purposes I define broadly to include not only contracts, property and torts, but also fields like bankruptcy, securities regulation and taxation, none of which can be understood without a firm grasp of a wide range of business transactions.

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    On the Constitutionality of the Contraception Mandate

    | March 07, 2012 | 11:09 am

    There are many horrible features about the President’s birth control mandate, with respect to religious institutions.  The Catholic Church, rightly in my view, regards this federal imposition as a mortal threat of its right to follow Church teachings on core issues of belief, which seems to be an interference with the guarantee that the Congress will do nothing to prohibit the “free exercise” of religion.

    To that claim, there are several replies.  The first is that the operation of medical facilities in accordance with Church teachings is not the exercise of religion, which only encompasses matters of worship and ritual.  That view is hopelessly narrow, given that the exercise of religion has to do with the way in which religious institutions interact in the world.  Indeed the recent Supreme Court decision Hosanna-Tabor Evangelical Lutheran Church v. EEOC makes clear that the choice of teachers for religious education fall within that core.  The issues of abortion, contraception, and sterilization get far closer to the core.

    It has been often been stated that even if these activities are covered, the Constitution does not protect their exercise when they are limited by a neutral law passed for nonreligious purposes that impacts religious and nonreligious institutions alike.  The position of neutrality is taken inUnemployment Division v. Smith, a decision written by Justice Scalia.  That decision does cut against the claim of religious liberty because it indicates that the size of the burden of religious choice has nothing to do with the free exercise claim.

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    Government By ‘Expert’

    | March 06, 2012 | 9:15 am

    Over the weekend, I participated in the 31st Annual Student Symposium of the Federalist Society held at the Stanford Law School. The title of the symposium was “Bureaucracy Unbound: Can Limited Government and the Administrative State Co-Exist?”

    The “co-exist” gives away the game. Historically, the term entered the political lexicon with Nikita Khrushchev’sfamous 1956 speech to the 20th Congress of the Communist Party of the Soviet Union to signal his break with Stalin’s murderous policies that sought constant confrontation with the West. Coexistence meant the West could go its way so long as the Soviet bloc could go its own way too—a live-and-let-live relationship where occasional interactions would iron out any difficulties that arose. Nine months later, he announced to the West, “We will bury you.” Less than five years after that, the United States and the Soviets came to the brink during the Cuban Missile Crisis, where the Soviets sought to alter the global balance of power by using Fidel Castro’s Cuba as a base for its operations.

    Peaceful coexistence, therefore, does not offer an ideal paradigm of how the rule of law does, or should, interact with the modern administrative state. To see why the two are ultimately incompatible, we must consider the nature of both the “rule of law” and the “administrative state,” about which I have written more extensively in my recent book Design for Liberty.

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    The Austerity Morass

    | February 29, 2012 | 10:00 am

    A close look at the economic woes at home and abroad raises this unedifying question: who has proved more inept at handling the current economic crisis, the European Union or the United States? To Paul Krugman, this question has an easy answer: The Europeans for their maddening insistence on fiscal austerity when large government expenditures and credit infusions are needed to prop up a sagging economy. With fiendish glee, Krugman denounces the EU’s austerity measures as “pain without gain.”

    The spending cuts of the EU nations, Krugman argues, have shrunk their economies, without offering any prospect of generating long-term growth. The Europeans, it seems, have emulated the worst of President Herbert Hoover’s skinflint budgets that helped prolong the Great Depression. The United States, which this time around has been more liberal with the purse, has suffered far less damage than the EU, which shunned Keynesian prescriptions.

    Krugman’s cryptic Hoover reference is telling. In addition to worshiping balanced budgets, Hoover got economic policy wrong time and again. On trade, he acquiesced to the 1930 Smoot-Hawley Tariff; on labor, he signed on to the Davis-Bacon Act of 1931, which calls for “prevailing [i.e. union] wages” on government funded projects; on taxation, he championed the Revenue Act of 1932, which raised the top tax bracket to 62 percent; more globally, he stubbornly accepted the general deflation of the time. The combined effect of these various measures did much to deepen and prolong the Great Depression. His policies sadly misfired in so many directions that it is difficult to attribute his disastrous presidency to any one factor.

    Krugman would do well to dwell on the multiple mistakes of the Hoover presidency. Yet, in his monochromatic way, he focuses in on only one piece of the larger mosaic: that governments here and abroad are not spending enough. For the United States, Krugman advocates for large transfers of federal revenues to the states to provide a large shot in the arm to local governments, putting them in a position “to rehire the hundreds of thousands of schoolteachers they have laid off and restart the building and maintenance projects they have canceled.”

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    The Oil Market Panic

    | February 21, 2012 | 11:09 am

    The high price of oil is once again a front page story in The New York Times. Part one of its story asks why the prices are high now. Part two of that story asks what, if anything, should be done in response to those price increases. The short answer to the first question is that the increase in prices is due to contractions in the supply of oil driven by the instability in the Middle East. The short answer to the second question is that we should do nothing at all.

    The greatest casualty of the current debate over the price of oil is to turn sensible market responses to its scarcity into grist for a political mill in an election year. The blame game between the political parties is likely to lead to flawed reform proposals that offer no short-term relief, but do impair the long-term efficiency of oil markets.

    Without question, the problem can be traced back to a renegade Iran. For good and sufficient political reasons, the West has come to see that the Iranian nuclear threat is not just bluster. Indeed, it poses far greater risks to world peace and the political order than even a major disruption in oil supplies.

    Hence an anxious West has now put into place a reasonably effective concerted effort to cut off Iran from the world’s banking system, and to block the use of Iranian oil internationally, which has been made easier by the Saudis’ willingness to expand their own shipments into the world markets. Nor have the Iranians sat back idly. They have cut off exports to the United Kingdom and France, a move that is largely symbolic. But the Iranian threat to close theStrait of Hormuz, through which about one-third the world’s oil supplies travel, is not symbolic. Nor is the movement of the U.S. aircraft carrier, the U.S.S. Abraham Lincoln, into the Strait of Hormuz, merely symbolic.

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    (photo credit: star5112)

    Obamacare’s Bully Mandate

    | February 14, 2012 | 9:08 am

    Government mandates are once again a hot topic. In last week’s column, I discussed this issue by addressing the case of Patrick Witt, the Yale quarterback accused of sexual assault.

    In one sense, the travails of Witt are small potatoes compared to a second mandate that’s been in the news. That mandate requires all religious institutions that partake of the health-care benefits under the Patient Protection and Affordable Care Act (PPACA) to supply—against their moral beliefs—contraceptive, sterilization, and abortion services to all persons whom they treat at their facilities in order to continue receiving government benefits, some fraction of which have been raised by tax revenues from persons of similar religious beliefs.

    This conditional grant offers the president the perfect way to expand his influence without having to endure the rigors of the political process on such a poisonous dispute. But the doctrine of unconstitutional conditions should apply here, as it did in the Witt case. A direct legislative order to engage in conduct antithetical to their religious convictions would be in flat violation of the First Amendment’s guarantee of the “free exercise of religion,” which is far broader and more comprehensive than the religious right to “worship,” to which the president grudgingly acquiesces. The mandate should go and the religious groups should receive government support on even terms with all other groups, even those that support legalized abortion.

    The political furor has forced the president to back down on the direct command to religious institutions. But now bitten with the statist bug, he just announced that all insurance companies who participate in programs funded through the PPACA will be required to offer the same suite of women’s health-care services for free.

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    Title IX or Bust

    | February 07, 2012 | 11:30 am

    Think back to the year 1943. For this country, embroiled as it was in World War II, the question of the day was whether, and if so how, to ensure that all students express their loyalty to the United States. To answer that challenge, the state of West Virginia’s Department of Education required all students in public schools to salute the flag of the United States of America. Covered by this order were the children of Jehovah’s Witnesses, for whom the flag salute was a form of religious idolatry.

    Enter the First Amendment’s guarantee of the freedom of speech, which when applied to the case of West Virginia here—and, by extension, all the other states—provoked this response from Justice Robert Jackson in West Virginia Board of Education v. Barnette:

    If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.

    The key assumption behind the justice’s opinion was that West Virginia did not get any additional power over its young students simply because they were attending public schools. It therefore looked at the case as if the regulation had been imposed on all individuals regardless of what they did, and found that it came up short.  It did so because parents taking children out of school has always been regarded as a false option, under what is now called the doctrine of unconstitutional conditions.

    The proposition is this: The government cannot use its power to operate publicly funded facilities to force the beliefs and convictions of the majority upon a minority of the population. The Jehovah’s Witnesses were taxpayers after all. But even if the Jehovah’s Witnesses were relieved of their tax obligations, there is good reason to hold fast to the position that protects the rights of religious minorities. Quite simply, it is easy enough to accommodate these children by allowing them to respectfully pass on the flag salute.

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    (photo credit: Center for American Progress)

    The Libertarian Gun Fallacy

    | January 31, 2012 | 3:48 pm

    The study of constitutional law is divided neatly into two categories. The first category concerns the protection of an overlapping set of individual liberties, dealing with property, contract, religion, and speech. The second category addresses the broad array of structural protections whose implementation is thought to indirectly protect those liberties.

    One key structural element of the American Constitution involves the design of a two-tier federalist system that distributes government powers between the national government and the states. How should a libertarian, whose natural instincts tend toward lower levels of government activity, think about the way in which federal systems can either strengthen or undermine the constitutional protection of individual liberties?

    In dealing with this issue, it has often been asserted that libertarians are all too fond of states’ rights. Consider this critical outburst from Andrew Sullivan’s blog:

    A real libertarian should be just as concerned about a State government’s infringement of individual liberty as the Federal government’s. There should be no distinction. Period. Instead, for some strange reason, American libertarians always rail against Federal power and champion the cause of unfettered State power. Why do you think American libertarians historically champion the cause of unfettered State power in the name of "individual liberty"?

    The “always” is a bit much, for this diatribe contains serious historical inaccuracies that were rightly exposed byDamon Root writing for Reason Magazine. As he notes, libertarians rose as one to condemn the Supreme Court’s decision in Kelo v. City of New London, which eviscerated the “public use” limitation on the state power of eminent domain by allowing a taking.

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    No ‘Sachs Appeal’

    | January 24, 2012 | 8:01 am

    The surprising persistence of Ron Paul during the Republican presidential primary process has brought the libertarian theory that he champions into the spotlight. At one level, what Paul says about the tradition is surely correct. It does not take a bold imagination to think that the level of government intrusion in the lives and businesses of its citizens has moved to an unacceptable and unsustainable level. He is right to stress the corruption that large government brings to social life. In today’s environment, individuals divert their energy producing wealth for themselves, which would otherwise create greater opportunities for others, to securing the transfer of wealth from others, which in the end diminishes all the possibilities for growth created by human ingenuity and invention.

    In this essay, I do not want to defend the Paul candidacy. Candidates all take many positions, and I have little sympathy for what I regard as the dangerous isolationism of Paul’s foreign policy, for his relative silence on the vital issue of free trade, and for his quixotic effort to abolish the Federal Reserve (which stands in need of extensive reform) in favor of a return to a gold standard.

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    California ill-served by redevelopment agencies

    | January 20, 2012 | 12:04 pm

    California’s real estate market is in bad shape. New construction costs are high; development is slow and the permitting process endless. All too often, urban planners think that fresh government subsidies can stimulate the development that heavy regulation throttles. But empty state and local treasuries have killed off that easy out.

    The state recently took a belated giant step in stopping this destructive cycle by pulling the plug on the nearly 400 city and county "redevelopment" agencies for sites already developed.

    Originally created to use public dollars to constrain blight, these boards have spread beyond their original mission by allowing local governments to use state funds to build expensive projects devoid of market support. In their heyday, these authorities poured around $5 billion per year mostly into white elephant projects. Potential new white elephants? A new football stadium for the 49ers, and a new baseball stadium for the Oakland A’s, when every stadium deal ever has lost money.

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    Death by Wealth Tax

    | January 17, 2012 | 8:01 am

    The country’s preoccupation with income inequality has become the fount of many bad ideas. Among the very worst comes from Stanford University professor of economics Ronald McKinnon. Writing in the Wall Street Journal, he proposes the most radical of reforms under the most soothing of titles: The Conservative Case for a Wealth Tax.

    His argument falters at every level. To be sure, McKinnon starts out with the unexceptionable observation that inequality and unemployment remain two hot issues in the upcoming election. But he advances the ball on neither front by his respectful bow to Occupy Wall Street. Far from proposing a solution, McKinnon has become part of the problem.

    Attacks on the inequality of wealth always miscarry when they fail to show that the wealth in question has been acquired by tainted means. Otherwise, the hard work that improves the lot of one person, without reducing the wealth of anyone else, should count as a social improvement.

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    The limited virtues of judicial modesty

    | January 12, 2012 | 8:31 pm

    On January 11, 2012, a unanimous Supreme Court issued its decision in Pacific Operators OffShore v. Valladolid, which addresses the interpretation of Section 1333(b) of the Outer Continental Shelf Lands Act (OCSLA).  The  text of the statute reads in full as follows:

    With respect to disability or death of an employee resulting from any injury occurring as the result of operations conducted on the outer Continental Shelf for the purpose of exploring for, developing, removing, or transporting by pipeline the natural resources, or involving rights to the natural resources, of the subsoil and seabed of the outer Continental Shelf, compensation shall be payable under the provisions of the Longshore and Harbor Workers’ Compensation Act.

    The correct interpretation of this section centers on the elusive words “resulting from any injury occurring as the result of operations conducted on the outer Continental Shelf.”  The facts that gave rise to the dispute are as simple as the text itself. Juan Valladolid was a roustabout, or manual laborer, most of whose work involved picking up trash, emptying trash cans, swabbing texts, and assisting in operating a platform crane and other odd jobs. Most of the time, he worked on a platform located in the Outer Continental Shelf. But some small fraction of the time his jobs were land based. It was on one of those occasions that he was killed in a forklift accident related to those operations.  The question was whether he could receive compensation under the OCSLA for those injuries.

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    Elizabeth Warren’s Sloppy Progressivism

    | January 10, 2012 | 8:07 am

    President Barack Obama is not the only high profile candidate for public office who portrays himself as the champion of the middle class. Right now, in Massachusetts, Elizabeth Warren, a longtime Harvard Law School professor, is projecting that same image in her determined run to displace Senator Scott Brown in next November’s election. Warren catapulted to fame in the Obama administration as the intellectual stimulus behind the creation of the Consumer Financial Protection Board, now headed by Richard Cordray after a controversial recess appointment.

    Now that Warren is free of her institutional obligations at the federal level, she has come out swinging on a large number of issues dear to progressive hearts. Her most powerful statement is posted conspicuously on moveon.org. Its call to arms requires a restrained and rational answer.

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