IAm Richard Epstein, professor of law at NYU, senior fellow at the Hoover Institution, and professor emeritus at the University of Chicago, AMA.

Professor, thank you for taking some of your time to do this. I am an admirer of yours and am very interested to see how this goes. I am curious to hear your thoughts on current law school enrollment rates and costs given the state of the legal job market for new law school graduates. Do you think law schools owe a duty to their applicants to stop greedily taking in every eager mind that applies despite the economic prospects of that decision? What would you tell someone considering applying to law school right now if their reasoning was that it would be a solid career move?

I am less paternalistic than you, and think that the innocents, so-called, have already scaled back their applications. But the market is tricky. It is stable at the top and if ever get a president with pro growth policies, business would expand. At the bottom, it is not a viable proposition with the current market format. It needs to be commoditized for it to work at a lower cost base. That requires corporate involvement which can then determine the mix of legal and para legal talents. But there is no cause for regulation. Information will travel quickly enough, as your question indicates.

Professor, could you begin Crim Pro next quarter by reviewing the case Ned Stark v. Joffrey?

No.

My witching hour is now passed. I see 249 comments, so that our joint cup runneth over. But perhaps some other day in the same format.

Thanks for all the hard questions. You can check out my writings on Twitter @RichardAEpstein. I picked up seven new devotees while answering these questions. My thanks to you all. And good bye

RAE

What is your view on free university education such as in Nordic countries?

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.

If you had to point out one flaw with anarcho-capitalism, what would it be?

Also, I'm the head of the YAL chapter at Cardozo Law, we'd love to have you speak here in the future.

Next year at Cardozo, if not Jerusalem.

The biggest mistake on the anarcho side is hinted at in earlier answers. There is no room for forced exchanges, which are part of any civilized society. These are needed and dangerous, and must be regulated.

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.

In terms of the three branches, has the judiciary become too powerful in recent years?

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,

Mr. Epstein,

I am currently a 1L at a Third Tier school in a state with 3 Top 60 schools. What advice, outside of get really good grades, would you give someone like me to help set them apart while searching for a job?

develop a real expertise in an emerging area so you can hit the ground running, and try to get something "in print" on line, as it were. The training period is something that law firms do not wish to pay.

Constitutionally, what gives Congress power to cede it's rulemaking authority to the executive branch in the form of regulatory agencies? (Why are we governed by rules that are never voted on by our representatives?)

No small question here. Clearly some things have to be delegated to the president, just as some matters in corporations have to be delegated to the CEO. But the creation of independent agencies was far more controversial as there is no explicit authorization for this "fourth branch of government." In general, the point has been overrated because it is in practice hard to tell the difference between executive agencies and independent agencies in practice. Most people could not tell you which is which, me included. but the one point that does stand out is the creation of quasi judicial bodies in the agencies, like the boards of the NLRB and the FCC. Those are a mistake. All adjudicative functions should be in the courts lest you get the gridlock and favoritism that now afflicts the NLRB.

From what I understand, you offer a kind of rule-utilitarian justification for libertarian principles (i.e. libertarian rules are those that maximize aggregate welfare). Is this fair? By contrast, most libertarians go a stronger, deontic "natural rights" route. This camp tends to see your view as too soft on the possibility of state intrusion if the cost-benefit analysis works out. Do you disagree with this characterization?

This position also makes libertarianism rise or fall on an empirical hook: the actual ability for libertarian rules to maximize welfare. What's your strongest go-to empirical evidence of this claim? (I'm not convinced that consequentialism implies a libertarian social structure, but I'm open to the possibility in principle.)

And do you think it is ever justified to subordinate efficiency to the service of some other normative value (e.g. distributional effects)?

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

When it comes to the arguments being advanced about gays in the Boy Scouts, you've pointed out in the past that the protections of prior Court decisions serve to overwhelmingly protect the interests of groups which hold extreme views, not moderate ones. Could you explain a bit why that is, and how it could relate to religious groups in the wake of the Court's upcoming marriage decisions?

Thanks so much for doing this - I registered just to ask a question.

I did not quite say that in my 2000 piece in the Southern California law review, http://www-bcf.usc.edu/~usclrev/pdf/074108.pdf. The argument was in fact the opposite. The first Amendment should protect all associational freedoms, and not limit the protection only to extremists. Unfortunately, Justice Stevens did not see the point in his dissent, which sought to glorify the antidiscrimination norm, which should only apply to persons with monopoly power in public utility or common carrier contexts.

What are your thoughts on the Rule Against Perpetuities (teaching and practical)?

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.

http://en.wikipedia.org/wiki/Rule_against_perpetuities

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 !!!

Mr Epstein, I appreciate you taking the time to talk with Reddit about your views. It is refreshing to see someone of your stature active in this community.

Now, if you could, describe your perfect Sunday.

Whoops. I do the cross word puzzle, slowly, write something, badly, go out with my family, frequently, and get outdoors. Not exciting. but no one would want to confuse me with Teddy Roosevelt.

I have a "fun" question. Would you ever make a guest appearance on a criminal drama (like Law and Order SVU)? What do you think about those type of shows in general?

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

How do you feel about trial in absentia under "any" circumstances, and what are your feelings re: federal rule of criminal procedure #43, precedent from the supreme court in '92, and possible application regarding drone attacks on citizens at home or abroad knowingly avoiding detention or capture?

Trial absentia is risky, and for drone attacks I think that the criminal justice model is incorrect, and that the law of war model should apply, at least to enemy combatants. Here are some reflections from last November: http://www.hoover.org/publications/defining-ideas/article/135206. I think that this requires modification if only because the "signature strikes" raise issues I have not yet considered thoroughly.

Do you think men get justice in family court in the USA? How do you think any inequities could be resolved?

I am very reluctant to make empirical claims in areas that I don't work full time. Nor here is it clear what the right standard is on parenting issues. I have no doubt that some injustices can be found but I am not sure of their frequency or intensity.

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Hi, it is a utilitarian view that sees this as best for society. but markets are not the only voluntary organization that we need or have all sorts of other friendly societies are part of the overall system, as are organized charitable activities which work best when not taken over by government.

http://www.hoover.org/publications/defining-ideas/article/139186 gives some other comments

What's the biggest mistake you have ever made while teaching a class?

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 a big fan of you and David Friedman, esp. your respective works on what a voluntary society will like.

Do you think that private laws can emerge in this age of the internet/technology/startups? Do you think that maybe we can use technology to replicate the commercial ties/family relations/religious customs that have made private law societies work in the past?

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.

What is the best thing and the most annoying thing that law students do:

a) in class

b) in office hours

:D

In class, surf the web. In the office, get combative.

There's an argument being made recently in the blog-o-sphere that Evolutionary Psychology implies a certain inherent form of socialism with in the family. Within limits, I suppose that's theoretically correct. Nevertheless, proponents of a more-expansive administrative state have used this to encourage the growth of governmental programs. Do you think there is the conflict between sociobiology and capitalism? How should classical liberals reconcile some of the appearance of a divergence between evolutionary psychology and free-market principles?

Families and state are at the opposite ends of the spectrum. The family has to take into account interdependent utilities, and thus has a huge amount of redistribution and coinsurance, but only because of the genetic and affective connections. That does not work in states, where redistribution is not given but taken. Here the point is to create opportunities to help others through voluntary means, so that the sorting is far more efficient. The naive socialist presupposes a level of generosity that is one too great. It is worth reading Adam Smith on Moral Sentiments, their use and limitation.

As someone short of a high school diploma, would it be best to attain my high school diploma or go for my G.E.D.? My goal is a bachelor of science in computer sciences.

GED does not help much. Get the degree by hard work, and good luck.

What law, or area of the law, do you find the most detrimental to individual liberty in the USA? What would you do to correct it?

There is no one body of law that does this. It is the judicial presumption in favor of the government based on its presumed good faith that is so far off base. I work on too many cases where the abuses are manifest.

So we need to change attitudes by denying deference at the constitutional level to government as regulator under the rational basis test, and to back off the Chevron doctrine with deference to administrators on questions of law. But by the same token, when governments do have to run things, it needs the benefit of the business judgment rule. That is quite imperfect, which is why taking governments out of many areas is a good thing.

What does the ninth amendment even mean?

Tricky question. But remember that the Bill of Rights was not thought ful (at least in its English version) as a form of enforceable law. It was a set of cautionary statements. The text of the ninth amendment

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

backs this up. Enumeration of rights was a way of organizing the system, especially in connection with such issues as habeas corpus and contract. The word construed means that we are thinking here of how to read, and hence construe the overall doctrine. the rights retained by the people (individually) is clearly a Lockean reference to natural rights. So it means go slow before trampling these rights. It is hard to give it substantive content, which is what has been done since Griswold.

As a fellow Epstein, i salute you!

I salute you too, or at least I think I do.

[deleted]

Serious problems all, but in the end judicialization of the process is worse than the disease. No enemy combatant wants to submit to the US. And if they did, they could easily arrange to cooperate. The "signature strikes are the greatest concern, as noted.

Hi Professor -- Con Law question here. What are your thoughts on the current state of the law on Congress' Commerce Clause power under Lopez and Morrison? Do you think the Court's decision in Sibelius added anything to the situation, and if so do you think that section of the majority's opinion has any precedential value?

The area has been in disarray since the New Deal Cases. The older view that limited the feds to dealing with network type arrangements across state lines gets much better results than the Wickard cases, which are all efforts to create and maintain monopoly protection. http://www.hoover.org/publications/defining-ideas/article/100456 and this

http://www.hoover.org/publications/defining-ideas/article/112856

The American and the German law systems do not only differ in their fundamentals, but also in how they educate their lawyers. Whereas american law students first finish a BSc or an BA before proceeding to law school, German students start their career right after school.

Do you see an competitve advantage with one or the other?

Our system has the hybrid vigor that theirs lacks. I would never have tried to become a German academic, where you are in tutelage until 40. I started teaching at 25. The difference in American background, the ease of entry into the market are huge advantages. My own fear is that the increasing demands for writing at the outset keep people out of the professoriate for too long, and that the need for mentors tends to level out thought. Independence matters.

I go to NYU as a freshman! What's your favorite place to eat around here? I've yet to find the perfect cozy place to go to all the time down here in the village.

My endorsement would carry so much weight that I dare not give it for fear of bankrupting my number two place. But I give at least this hint.

It is not McDonald's.

Go Ben's on West third and Macdougal Street.

Do you think Professor Serkin from BLS could take you in a fight?

He is a much better musical type than I. And I never fight with friends;l

Professor Epstein, thank you so much for taking time our of your day to entertain our questions. We really appreciate it.

I live in the state of Kentucky. In 1920, our state set 16 as the cut-off age for compulsory school attendance. On Monday, our governor signed a law allowing districts to voluntarily raise the compulsory attendance age to 18.

What do you believe the impact of this option for school districts will have? Furthermore, do you think mandatory school attendance at any age is positive?

Again, thanks so much.

Bad idea to raise it. Opportunities are find, but mandates are dangerous. Let those folks go out in the world, see what an education brings, and let them come back when they are motivated to do so. I would much rather start early than end late.

Professor Epstein, suppose the President offers to appoint you to a position of your choosing in the Federal Government. Which one would you take and why?

Also, I hear you have a great jump shot. Who do you think will win the NCAA?

On the former, it will not happen. But his would be a nice start, even if constitutionally impermissible.

I am firm believer that the money in politics is one of the biggest problems facing our country. I know that Buckley v Valeo ruled that money = free speech. Is it possible to truly limit the money in politics without a constitutional amendment?

Hopefully not. The key here is that money talks becuase there is too much for it to buy in government. Here are my decidedly minority views: http://online.liebertpub.com/doi/abs/10.1089/153312904322907775

Prof. Epstein,

Thanks for doing this, and reaching out to people who might not otherwise have a chance to encounter someone with your positions or intellect. I have a few questions for your consideration:

1.) What do you think are the limits of federal power on the question of immigration? Could the federal government, over state objections, return to a 19th century open borders approach? Would it be Constitutional for the federal government to block all immigration?

2.) If you could change any aspect of the current model of legal education, what would it be?

3.) If you could pass one Constitutional amendment, what would it be?

I'll just do the first. I think that open immigration is not viable in a society where the cost of a plane ticket could landa million people in the US in a day. But I do think that we need to rationalize the policies. One way is to get rid of protectionist rules on letting in productive workers. Eddie Lazear and Gary Becker have a more complex system of allowing people in on bids, which should be taken very seriously in getting top talent to this country. http://online.wsj.com/article/SB10001424127887323375204578271531542362850.htmlWe also need to keep the tax burdens low so that people want to come here. right now we are not a number of place of destination for many entrepreneurial types.

Any thoughts on the Bowman v. Monsanto case which went for oral arguments in the SCOTUS last month?

A nobrainer. If the patent can be evaded by reusing old seeds in this fashion, the game is owner. The Supreme Court nine were united in their disbelief i Bowman's case, and quite rightly. T

Professor Epstein, what does it take in order to have "standing" to challenge the Constitutionality of something?

A tangible interest if you ask the supreme court. I would allow under the heading of cases in equity any action by a citizen or taxpayer to enjoin public program. That position is unanimously rejected by the court, which accounts for its inability to check spending programs=, which collectively are out of control.

Recently Senator Elizabeth Warren asked why the minimum wage hasn't risen with productivity to $22 / hr. Why weren't any of the professionals in the room smart enough to explain it to her?

Unbelievable!! The higher the productivity the less the need for the minimum wage. It is hard to believe that she is in the Senate, or was on the Harvard faculty. My views on her other silliness:http://www.hoover.org/publications/defining-ideas/article/104416

As an NYU 2L I'm sad I can't take your Roman Law course. Why no Roman at NYU? Can we petition to make this happen next year? (I don't care about future years -- positive externalitiy to me).

Water law, as I will teach it next fall, has a lot of Roman Law in it. Maybe soon.

Mr Epstein - What is your view on legalising marijuana? What would happen to people convicted of minor possession who are in jail after a legalisation event?

Not opposed, certainly for medical purposes But the quid pro quo is that those who take it should bear the costs of their own rehabilitation if that proves necessary. Right now we have the worst of all possible worlds. We harass and criminalize, to penalize, and then we subsidize through rehab. Do neither is both cheaper and better.

Professor Epstein,

You're famous for teaching Roman Law. (Although you were one of my favorite law professors many years ago, I never took that course.) Given the complaint that law schools today don't teach enough "practical" skills, what relevance does Roman Law have to a modern lawyer or law student, outside of historical curiosity.

Roman law gives students a huge edge in understanding basic legal relations. This year I had a waiting list of 95 for a seminar that took 23 at Chicago. The students have figured this out. And it is one of my great pleasures in academics was to have taught it for 40 years. I started it at OXford, with Alan Watson as my tutor and David Daube as my all-around guru. Even at the time, I sensed that this was important. Now I know it. The people who poo poo it, do not know it. Shame on them.

What is liberty?

The freedom to do what you want so like as you do not trespass on the like liberty of others That washed out to no force and no fraud, but lots of competition.

I see workingfisch loves Hot Fuzz as well : D

Professor Epstein [and this is my second question so feel free to ignore it if others are in line],

Regarding gay marriage, do you foresee structural/logical (as opposed to arbitrary or moral) obstacles to legalized polygamy, if a ruling comes down in favor of gay marriage based on the arguments put forward in brief by its proponents? If so, can you elaborate on what they are and how the court might address them if it chooses to do so?

Also, does the same situation apply to incest? This seems to be an issue that elicits a dramatic range of viewpoints and I'd love to read your fully-developed logical progression on this.

Also, What is the air-speed-velocity of an unladen swallow?

I am always big on polygamy, but my wife has other views. But I would not ban i, and think of the real abuse of this with the Mormans, both now and eaerlier.

Incest—no way.

[deleted]

Wise choice. And now you have two people to thank. My wonderful co author Cathy Sharkey is the second.

Professor, what are your thoughts about the recent changes at NYU?

Great universities have to grow. John Sexton has pushed and pulled us in that direction. I regret the vote of no confidence from the faculty of arts and sciences. Most unwise.

Software Patents, What is your opinion on them?

Should business be allowed to patent mathematics?

Disclosure: I have software patents. My old company used to ask us to write some up. I think they are stupid. I shouldn't have created them, but I did.

Software patents are in principle fine, but the nonobvious limitation has to apply. The rate of progress in the industry belies the view that they chiefly serve to block. And the licensing market shows that they make their way around. My latest reflection on the new AIA is here, just this week: http://www.hoover.org/publications/defining-ideas/article/142741

Do you think that Prof. Leiter will stop harassing internet commenters and taking the internet way too personally long enough to come ask you a few questions during your AMA?

Beats me.

I try not to get personal on line. It gets attention but does not add information.

In light of the development of electronic mediums of communication, does a right to anonymity exist?

Stay off line. But the anonymity is a mixed blessing. Many threats are anonymous, and that can be quite ugly. So it goes back to force and fraud. The anonymity works well with lawful action but intensifies the risk of unlawful ones.

What are you most proud of?

My family.

Work is second, but it goes a lot better when family situations go well.

Is there a law that I am unaware of that prevents the raising of say one hundred duck sized horses or one horse sized duck? If it is legal, what law would state that it is okay to fight one? Finally in your opinion which would you rather fight?

Duh!?!

When do you think the next economic collapse will occur?

Too soon if we do not mend our ways. Liberalization in labor and property markets, and flatter and lower taxes are needed. On this issue the Keynesians are wrong WE do not need demand side stimulus. We need greater certainty in legal rules to reduce the impediments on trade. It is inexcusable to have annual revisions of key tax rates.

Which 7th Circuit Titan do you find yourself agreeing more often: Easterbrook (the formalist) or Posner (the pragmatist)?

Or Diane Wood, who should not be overlooked.

Professor Epstein, thank you for your AMA. I was wondering if you would share your views on the recent SCOTUS opinion regarding first sale and international copyright (Kirtsaeng v. John Wiley & Sons).

Did it come down.

Here are my views: http://ricochet.com/main-feed/Copyright-Law-and-Market-Arbitrage

Soon the George Zimmerman trial will begin in FL regarding the Trayvon Martin killing. Likely it will be one of the biggest cases, since the OJ case, in terms of turmoil outside the courtroom. Based on what has been publicized so far, any thoughts on the case?

yes, wait for the evidence to come in. It is all too dangerous to prejudge these cases. There were many phone conversations and some eye witnesses. Self defense cases are notoriously difficult and it is easy for tempers to flare without justification, both ways.

Could you upload a video of yourself signing choice selections from My Fair Lady, please?

I am glad that you do not jest, for all I want is a room somewhere where I can belt out music as I think about the street where you live.

And if enry iggens can wait, so can you!

R

What is some general advice you would recommend someone know concerning the law in general? I know it's a broad question however I took my concealed license course and it opened my eyes to a lot of things I hadn't previously thought about.

This question is a bit obscure by I assume that your concealed license course was a course in telling you how to acquire a concealed weapon. If so, follow it. As to law in general, the question is indeed a bit broad, but i have a four word answer for who those who want a start: "cooperation yes, coercion no." That ties into the gun question because the reason regulation is so difficult is there are both good, bad and neutral uses of guns.

Hey, want to help with a non-profit I started? BTW the only correct answer is yes! :) Bit more info: I am one of the co-founders of S4S we are a non-profit trying to send care packages to the military. Our ultimate goal is to boost morale, while showing those that risk their lives on a daily basis are cared for and not forgotten. We are only 2 months old, but are quickly growing and planning to branch out into other areas as we do. Though, currently we are looking for more support. Their are about 20 supplement companies on our side atm, and we manage to send around 1-2k in packages every 2 months. Currently, we are getting a lot of replies from a good number of well known people. For instance have some actresses like Natalie Victoria, models like Loni Willison-Jackson, Sheridyn Fisher, Jen Jewell, Rachel Elizabeth Murray, a social media event planner from LA, tons of trainers, and a lot of other people throughout various industries showing interest in helping our cause...You know you want to @,@

Go for it.

Who do you think would win in a fight between judge Judy and judge Dredd?

Rocky Marciano