The University of Chicago Law School Faculty Blog

Weekend Blog Roundup

Becker and Posner discuss the decriminalization of marijuana; Richard Epstein weighs in on the minimum wage; and Eric Posner looks at mentions of "law professor" in the New York Times and the rise of the word "theorize."

Epstein on "Reckless Unions"

On Defining Ideas, Richard Epstein argues that pension reform could save cities on the brink of bankruptcy.

Epstein on "Rethinking the Contraceptive Mandate"

On Defining Ideas, Richard Epstein argues that the classical liberal case against the law is stronger than the religious one.

Epstein's "Rand Paul Problem"

"I consider myself a proponent of limited government," writes Richard Epstein in his most recent Defining Ideas column. "So does Senator Rand Paul of Kentucky, who has moved the term 'libertarian' to the fore of our national political debates. In a recent New York Times analysis, 'Rand Paul’s Mixed Inheritance,' Sam Tanenhaus and Jim Rutenberg treat him as today’s exemplar of libertarian thought. But Paul’s ideology is a far cry from classical liberalism, which is conceptually and politically superior to hard-line libertarianism."

Audio: Two Epstein SCOTUScasts

Hat tip to George Best, '97, who alerted us to two Federalist Society SCOTUScasts featuring Richard Epstein, one on Christian Legal Society v. Martinez and one on Bilski v. Kappos.

Epstein Debates Internet Censorship

The State Department's America.gov site is currently featuring a debate between Richard Epstein and Derek Bambauer of Brooklyn Law School, in which they discuss whether government censorship over the internet is ever justifiable. You can join the debate here.

Epstein on the GM and Chrysler Bankruptcies

Over at the website of The Freeman, published by the Foundation for Economic Education, Richard Epstein has published an article entitled "Political Bankruptcies: How Chrysler and GM Have Changed the Rules of the Game." Below is an excerpt:

The topic of corporate bankruptcy law scarcely titillates the imagination of ordinary citizens, even those with a deep interest in constitutional and public affairs. Harried people treat bankruptcy almost dismissively as a useful way of winding up firms that cannot keep their financial heads above water. In practice they sense rightly that the corporate bankruptcy system cleanses the economy of weak players by their liquidation, reorganization, or sale, hopefully to allow their assets to be released to more productive uses. Explaining how bankruptcy works isn’t a fit subject for polite company.

Those perceptions have changed now that the Chrysler and GM bankruptcies have set a new standard for the fast resolution of some complex if dubious transactions. So troublesome questions arise: Did these transactions comply with the rule of law? Were the property rights of the secured creditors fully protected in the expedited proceedings? Will the process bring confidence to the credit markets? No, no, and no again. Those three “nos” come as no surprise. The basic classical liberal position is right to insist that the government cannot sensibly occupy the roles of market participant and market regulator simultaneously. All else is detail.

You can read the rest of the article here.

Audio: Epstein on Bilski

Continuing with today's Epstein/Fed Soc theme, the Federalist Society has posted a recording of Prof. Epstein discussing Bilski v. Kappos. The SCOTUS heard oral argument in the case on November 9. According to the Fed Soc site,

The issue in this case is whether a "process" must be tied to a particular machine or apparatus or transform a particular article into a different state or thing in order to be eligible for patenting under 35 U.S.C. § 101.

You can download the podcast here.

Video: Richard Epstein on the Redistribution of Wealth

Over on the Federalist Society's YouTube Channel, they've posted an 11-part series entitled "Redistribution of Wealth," recorded at the 2009 National Lawyers Convention on Thursday, November 12, 2009. Our own Richard Epstein was one of the discussants.

Other participants included Steve Forbes, Chairman and CEO of Forbes Inc. and Editor of Forbes Magazine; Prof. Jed Rubenfeld of Yale Law School; Andrew L. Stern, President of the Service Employees International Union; and Judge J. Harvie Wilkinson III of the U.S. Court of Appeals for the Fourth Circuit as the moderator.

Video: Epstein Debates Judy Feder on Health Care

NYU has posted a video of a recent debate between Richard Epstein and Georgetown's Judy Feder about health care reform. You can watch the video here, and below is a sneak peek of Epstein's position, courtesy of the NYU website:

While agreeing with Feder that the system needed drastic fixes, Epstein differed stridently on what was required. Arguing that “cartel-like restrictions,” mandates, and subsidies in government programs like Medicare had caused healthcare’s woes, Epstein said that the current model of a system like Medicare was not tenable when extended to the broader population: “If all you’re going to try to do is to give everybody the same level of protection that you give to current Medicare recipients, you’ll not be able to finance it with any of the devices that she’s talking about.”

One of the primary problems, Epstein said, was that potential competitors to existing insurance firms lack free entry into local markets, resulting in insurance monopolies. He argued that Obama should pass legislation to correct a “deeply anticompetitive system,” but predicted that the administration would instead “buy off all the interest groups with corrupt bargains” and introduce taxation and cross-subsidy programs that “will bankrupt the nation.” The public health plan option, Epstein continued, would be run by a “bunch of blithering incompetents.... What you’re watching here is a grotesque concatenation of every bad left-wing liberal policy in the last 40 years, and the time has come to stop it.” Epstein prescribed instead a series of “mid-level rationalizations” involving medical malpractice and price restriction issues, as well as the application of contract law.