Richard A. Epstein, a law professor and legal theorist, teaches at the University of Chicago Law School and is a senior fellow at the Hoover Institution at Stanford University. He is one of the leading legal scholars in the United States and a prominent libertarian author.

Epstein’s work on eminent domain brought him fame when Senator Joseph Biden held up a copy of Epstein’s book Takings during the 1991 confirmation hearings of Clarence Thomas to the U.S. Supreme Court. According to Biden, judges who agreed with the central thesis of the book—that the federal government should be more vigilant about compensating people when their property is taken for public use—were unfit to sit on the Supreme Court. Epstein has said that he “took some pride” in being criticized for his position.

But I took even more pride in the fact that, during the [Stephen] Breyer hearings, there were no such theatrics, even as the nominee was constantly questioned on whether he agreed with the Epstein position on deregulation, as if that position could not be held by responsible people.

Epstein also has challenged established wisdom on employment discrimination laws, arguing that government intervention in employment contracts is unnecessary and even undesirable. “Labor markets raise neither of the two problems on which a principled case for legal intervention may properly rest,” he has written.

There are neither the holdout, coordination, or public good problems that justify government coercion and control so long as compensation is paid to regulated parties; nor are there the problems with externalities in the use of force or fraud against strangers that justify the use of state force without compensation.

Moreover, if one is interested in redistributing income to groups that have traditionally suffered discrimination, then antidiscrimination laws are a blunt tool to use toward that end. A combination of tax and welfare systems, keyed to individual wealth, would be more simple and effective, Epstein argues.

Although Epstein’s discussions of eminent domain and antidiscrimination laws may appear radical to some observers, they in fact reveal how his worldview differs from those libertarians who see themselves as more uncompromising in their views. Epstein is no anarchist, nor does he believe that government action should be confined to protecting people from violence. In other words, he is no advocate of a night watchman state. Instead, he argues that the state must intervene in the provision of key public goods, such as supplying the nation’s infrastructure in transportation and energy to overcome coordination problems among private interests. “I do not think that ‘free markets,’ let alone ‘capitalism,’ supplies the answer to all the questions of social organization,” Epstein writes. “Markets depend on governments; governments of course depend on markets. The key question is not to exclude one or the other from the mix, but to assign to each its proper role.”

Epstein has made his consequentialist case for classical liberalism in three recent books: Simple Rules for a Complex World, Principles for a Free Society, and Skepticism and Freedom. He also has written extensively on health care, arguing that a less regulated system would provide better access and service to a greater number of people.

Further Readings

Chapman, Stephen. “Takings Exception: Maverick Legal Scholar Richard Epstein on Property, Discrimination, and the Limits of State Action.” Reason (April 1995): 36–42.

Epstein, Richard A. Forbidden Grounds: The Case Against Employment Discrimination Laws. Cambridge, MA: Harvard University Press, 1992.

———. Principles for a Free Society: Reconciling Individual Liberty with the Common Good. Reading, MA: Perseus Books, 1998.

———. Simple Rules for a Complex World. Cambridge, MA: Harvard University Press, 1995.

———. Skepticism and Freedom: A Modern Case for Classical Liberalism. Chicago: University of Chicago Press, 2003.

———. Takings: Private Property and the Power of Eminent Domain. Cambridge, MA: Harvard University Press, 1985.

Aaron Steelman
Originally published