Tuesday, March 31, 2020

My Encounters with Richard Epstein

Apropos of current events, I thought I might share my three encounters with Richard Epstein.

Normally, I'd say "interactions" rather than "encounters", but in this case it would not be accurate -- there was no "inter-", as I never got a word in edgewise.

The first time came while I was sitting in the University of Chicago Law School common area (Epstein was for many years a University of Chicago law professor, though these days he's more associated with NYU and the Hoover Institute at Stanford). The law school cafe does not have pizza, but that day I had gone to the main food court on campus to pick up a few slices which I had brought back to the law school to eat. Epstein spotted my pizza as he was walking across the room and, without breaking stride or taking a breath said something like the following:
Where did you get that pizza I like pizza you can't get good pizza around here it's not like New York maybe I'll get some pizza for lunch!
Despite the fact that the opener was at least nominally addressed as a question to me, he never glanced backwards and I never had a chance to speak. By the time he was finished with his train of thought, he was halfway across the room and out of earshot anyway.

The second encounter came while I was sitting in on a faculty workshop featuring a presentation by Bernard Harcourt (now at Columbia) on 19th century French grain market regulations (or something like that). Harcourt is a good old fashioned Foucault acolyte, which made him stand out a bit at Chicago in general, and the thesis of this paper was that there was no such thing as market "deregulation" only "reregulation", which made him a target of Epstein in particular. Epstein asked him how it could be that there was no such thing as "deregulation" -- what if you just repeal all the regulations? -- and Harcourt responded by saying that the market is its own form of regulation that can have just as much disciplining effect, so "repealing" the regulations just results in a different form of regulation emerging. This answer was not satisfactory to Epstein, and they went back and forth along this vein for a bit -- is this deregulation or reregulation? -- until Epstein got frustrated and exclaimed "well that's just a semantic game." And Harcourt responded, with the perfect serenity of a continental political theorist:
"Everything is just a semantic game."
Reports were that it was the only time most of Epstein's colleagues had actually seen him rendered speechless.

The third encounter was also at a faculty workshop, this one for M. Todd Henderson, a corporate law professor and bastion of the law school's right flank, whom I happened to know idolized Epstein. I forget what Henderson was presenting on, but it must have been some way of de-(or re-?)regulating corporate law so as to minimize the government's role, and one could tell from the puppy eyes that he was hoping for Epstein's approval. Alas, it was apparently still too much government for Epstein, who went on a sustained rant that concluded "and then we're on the path to totalitarianism!" All of Epstein's comments on the papers of others concluded with that, but Henderson was still crushed.

Finally, while not an "encounter" per se, there was a running joke around the law school while I was there, to the effect that if Richard Epstein wrote the Constitution it would have only one amendment which would read "Congress shall make no law." In a similar vein, his known status as a polymath who worked in a dizzying array of legal subfields was thought to be counterbalanced by the somewhat "thematic" link tying together the contribution he was said to bring to all of them: if it's communications law, abolish the FCC. If it's election law, abolish the FEC. If it's health care law, abolish the FDA. If it's environmental law, abolish the EPA .... you get the idea.

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