Over at the Federalist Society website, Richard Epstein today participated in a discussion with Thomas Kochan (MIT), Eugene Scalia (Gibson, Dunn & Crutcher LLP),
and Patrick Szymanski (Change to Win) to debate the policy and
constitutionality of the EFCA. See the complete discussion here.
Professor Richard Epstein on the 4th Amendment Third Party Doctrine
who can't keep secrets have short careers. A big reason for this is
the “third-party doctrine” which, as most readers of this blog
are probably aware, holds that information shared with others is not
generally protected by 4th Amendment restrictions on
search and seizure. Put differently, the law does not recognize any
reasonable expectation of privacy in information shared with others.
This doctrine has been widely criticized and, most recently and
notably in an article by 4th Amendment scholar Orin Kerr,
defended (The Case for the Third-Party Doctrine, 109 Mich. L. Rev.
561, 563 (2009)). Chicago's own Richard Epstein has recently taken
interest in this debate, and presented his preliminary thoughts at
this week's Works in Progress (WiP) talk. Essentially, Prof. Epstein
thinks current constitutional doctrine is generally correct on this
point. He agrees with Prof. Kerr and other defenders of the
third-party doctrine that it is worth keeping, though his defense is
on somewhat different grounds than those of Prof. Kerr. Since Prof.
Epstein comes to this issue as an outsider, he also returns to first
principles in his work and asks whether we are analyzing these cases
consistently and coherently. His conclusion is to suggest a general
method for considering 4th Amendment issues that optimizes
the public benefits and private costs of permitting government action
in various classes of cases.
MONDAY, MARCH 30, 2009 Crisis & the Law with Richard Epstein: Chapter 1 of 5 - Richard Epstein considers the soundness of contracts and the constitutionality of taxing bonuses at a rate of 90 percent.
TUESDAY, MARCH 31, 2009 Crisis & the Law with Richard Epstein: Chapter 2 of 5 - Richard Epstein discusses the financial crisis, determining that
“government incentives were perverse, so the actions of the private
parties were perverse.”
WEDNESDAY, APRIL 01, 2009 Crisis & the Law with Richard Epstein: Chapter 3 of 5 - Richard Epstein rates the separate responses of the Bush and Obama administrations to the financial crisis.
THURSDAY, APRIL 02, 2009 Crisis & the Law with Richard Epstein: Chapter 4 of 5 - Richard Epstein, who has dealt professionally with Barack Obama in the
past, describes the talents and shortcomings of the 44th president.
FRIDAY, APRIL 03, 2009 Crisis & the Law with Richard Epstein: Chapter 5 of 5 - Richard Epstein discusses the constitutionality of several hot items on the congressional agenda, including card check.
This week's edition of the Faculty Podcast is a double header of two recent Chicago's Best Ideas talks: Judge Diane Wood and Martha Nussbaum February 2nd discussion "Constitutions and Capabilities," in which the pair discuss practical implications for judges of Prof. Nussbaum's capabilities approach; and Richard Epstein's "The Coming Meltdown in Labor Relations," in which he discusses the Employee Free Choice Act, the Lilly Ledbetter Fair Pay Act, and the Paycheck Fairness Act.
You can read Bryan Hart's summary of the Nussbaum/Wood talk here, and download the audio here; Bryan's write-up of the Epstein event is here, and the audio is here.
As you may already know, Professor Richard Epstein is not President Obama's biggest fan. Obama favors some economic regulations that Epstein does not. In his Chicago's Best Ideas talk on Tuesday, January 27, Professor Epstein spoke about three proposed laws in the area of labor relations: the Employee Free Choice Act, the Lilly Ledbetter Fair Pay Act, and the Paycheck Fairness Act. Epstein spent most of his time on the Employee Free Choice Act (EFCA), so my attention will focus on that law. (Epstein has a column about the Lilly Ledbetter Act on Forbes.com.) The EFCA is an amendment to the National Labor Relations Act (NLRA).
Epstein started with the word "free" in the EFCA's name. Back in the nineteenth century before the New Deal, "free" meant free for both sides of the labor relationship: employer and employee. An employer could not force the employee to accept a particular wage, and the employee could not, even if represented by a union, force the employer to hire him at a given wage. The NLRA was passed at the height of the New Deal in 1935. (Epstein is, not surprisingly, no fan of the New Deal.) The Act provides that unions can prompt a unionization vote by getting at least 30 percent of employees to show support by signing cards, called the card check. The vote is a simple majority vote by secret ballot. If the union is approved, the employer must negotiate with the union. Freedom under the NLRA is one-sided because employers must negotiate with a valid union.
In his latest weekly column for Forbes.com, Richard Epstein argues that the failures of Fannie Mae and Freddie Mac are a result of Congress' over-reliance on "patterned principles" in making decisions:
Now that yesterday's market nosedive shows the disappointing
Congressional bailout has not calmed markets, let the post-mortem
begin. Disasters like this latest financial meltdown don't just happen.
Mistakes this huge require an impoverished political philosophy to
grease the skids. Fannie and Freddie didn't design their horrific
lending policies by chance. No, behind this lending fiasco lay the
strong collective preference for the "patterned principles" of justice
that Robert Nozick attacked so powerfully in his 1974 masterpiece, Anarchy, State, and Utopia.
Believers in patterned principles hold that there is some
preordained social order that is more just than others. Accordingly,
the function of the state is to use the levers of powers to manipulate
behavior to achieve the desired outcomes. These patterned principles
stand in opposition to historical principles of justice, which are
content to establish the rules of the game and then let the legal moves
by individual players determine the social outcomes. For Nozick, the
key rules were rules of justice in acquisition (to set up the initial property rights) and justice in transfer, whereby those rights (and others derived from them) could be exchanged or combined through voluntary transactions.
In Richard Epstein's weekly column at Forbes.com, he discusses the House's refusal to pass legislation bailing out the financial industry earlier this week:
Well, the gong has struck,
now that a closely divided House of Representatives has failed to
approve round one of the bailout program. The stock market responded
with a deep plunge, as the uncertainty continues. It is too early,
however, to write a definitive post-mortem because some new proposal
may make it through a suspicious and hostile Congress. But it is
instructive to understand at least some of the reasons why this initial
effort fell apart.
This week, Forbes.com launched a new weekly column called "The Libertarian," authored by our own Richard Epstein, James Parker Hall Distinguished Service Professor of Law and Director of the John M. Olin Law and Economics Program. Below is an excerpt from his first column, "The Libertarian Manifesto," and you may read the whole column on Forbes.com.
Online columnists, it is said, should not suffer from an abundance
of caution or subtlety. Our job is to shake things up in a short
compass. As the choice of title for my new weekly column indicates, I
intend to do just that--push hard for a consistent small-government
view that is, regrettably, as unfashionable on the Republican side of
the aisle as it is on the Democratic. So here are some clues as to my
In principle, just what does
my restless agenda entail? A bit of a contradiction, I fear. Elsewhere,
I would describe myself in measured tones as a classical liberal who
prizes balance and moderation on all matters governmental. In so doing,
I would place myself squarely in the tradition that runs from John
Locke, by way of David Hume and Adam Smith, to the Founding Fathers of our Constitution.