Holy Crap. Richard Epstein is hosting a reddit Ask Me Anything

March 20th, 2013


People ask me what my specialty in law is. My answer has always been, don’t have one, but if you have a question, I will try to concoct an answer. Not a bad credo, given the risks of overspecialization.

I will cull some of the best Richardisms here.

Epstein on the Norwegian education system.

I am not happy with it. Free means free to the student, at which point the cost falls on everyone else. There can also be too many students in university as well as too little. Indeed one of the problems now in the US is high default rates on subsidized student loans that lead students to make the wrong choices‚—and let everyone else pay for it.

Which branch of government is too power?

All the branches have become too powerful, as it were, because there is too much government. But the real point is that the judiciary has often been too weak and mushy because it will not strike down the excesses of other branches of government. This is especially true with takings where land use control programs have thwarted sensible development at great human cost everywhere—only a modest overgeneralization. Remember that Kelo was a public outrage because the courts failed to intervene to protect her house on a site that is now a garbage dump,

On Property rights in cyberspace:

Yes, I think that most people who work in cyberspace are drawn to libertarian views because of the ability of networks to voluntarily organize with minimum of interaction. But there are no spacial externalities as with land, which requires some government regulation. That need not be zoning, but it surely encompasses some use of nuisance law and restrictive covenants, often as part of a planned unit development, which allows the full internalization of externalities.

On the Rule Against Perpetuities:

The first point is don’t learn it from Body Heat. Got it wrong.

The second is in practice, use a savings clause that stipulates the life in being. Legislatively, just get rid of it for assets behind trusts.

Oh, and for the rest of you, a primer in future interests is well called for.


It was the first course I ever taught in 1968, courtesy of Ashbel Green Gulliver. It is rumored that Justice White got the only perfect score on Gulliver’s short answer test.

So there !!!

No joke, but when I was teaching RAP in class, a student actually cited Wikipedia to answer a question. Now, Richard has validated that answer.

Something about deontology:

A toughie My view is that the deontological explanations tend to fail because they cannot account for such common practices at Intellectual Property, taxation or eminent domain. The theory has no way to deal with forced exchanges, which is what taxation and eminent domain are about. The size of the state surely expands, but the credibility of the argument expands as well, at least if you can make good on the general empirical claim that positive sum games come out of voluntary exchanges but only if backed by a state infrastructure. My Takings book and my book Bargaining with the State try to show how this can be done. But the hard line libertarian thinks that there is always a voluntary solution to a collective holdout problem, and that is surely false empirically. As to the virtues of limited government, these were sealed in my mind in the summer of 1965, with a trip to Berlin when it was divided. As the fellow in East Germany said, Kapitalismus is gut wenn man gut on Kapitalismus isst. Capitalism is good when you eat well under capitalization. That does not require that all roads be privatized. It does mean that where possible we should meter for their use to control congestion. As to redistribution, my motto is redistribution last, on which hear http://www.youtube.com/user/TheFederalistSociety#p/a

Richard’s biggest mistake while teaching:

Too many to count. But the one on my first day is still the best. I started to teach future interests to 92 students at USC, and ten minutes in, one Marvin Garrett raises his hand and says “You don’t know us and we don’t know you, but I can say for every person in this class that no one has understood a word you have said.” Tough stuff. So I answered contritely, “Can you ask a question so that I can clarify.” His response wqs unforgiving. “To ask a good question, you have to know something, which we don’t. My advice to you is slow down and start over.” Out went the notes (which I never brought to class again. I started to look at students for signs of abject incomprehension. I am not perfect, as generations can testify, but at least I don’t use power point.

I’m pretty sure this is the Marvin Garrett that Epstein is referring to.

Is libertarianism bad for the environment?

No. This is a question that comes up all the time. the number of people who think that the belief in markets requires that you breath polluted air is all too large. The market argument is that between consensual parties the government should not regulate wages and terms. But externality control is an essential party of the overall libertarian theory, and that means control of nuisances. The issue is pretty clear, but in the last two weeks two distinguished professors from Texas and Harvard made the same mistake. It is a case where it is easier to mischaracterize a system than to understand it. Nuisance law has many distinctive remedial features and at times requires collective enforcement of the basic norm against invasion. But there is nothing about the theory which says that the way to make people happy and prosperous is to choke them.

Does Richard want to appear on Law & Order SVU?

Yes of course Do you have an agent? I could play myself, but would probably do that badly.