January 16, 2025 • 45 mins
Prof. Richard Epstein joins Prof. Todd Zywicki to discuss his academic journey, where he learned early on, particularly through the lens of Roman law, that legal issues cannot be understood by mere definitions, but by understanding deeper substantive theory. Prof. Epstein emphasizes valuable lessons he learned along the way, such as the importance of figuring out where one’s particular strengths lie and how to “do” law by oneself. How does one transition from a dutiful student to a sui generis thinker? Join us for an engaging discussion on Prof. Epstein’s evolution of academic thought and the adaptation of Roman law and early English common law to the world around us.
Featuring:
Prof. Richard A. Epstein, Laurence A. Tisch Professor of Law and Director, Classical Liberal Institute, New York University School of Law
Prof. Todd J. Zywicki, George Mason University Foundation Professor of Law, Antonin Scalia Law School, George Mason University
Featuring:
Prof. Richard A. Epstein, Laurence A. Tisch Professor of Law and Director, Classical Liberal Institute, New York University School of Law
Prof. Todd J. Zywicki, George Mason University Foundation Professor of Law, Antonin Scalia Law School, George Mason University
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:03):
Welcome to Open Minds, a freedom of thought podcast series
interviewing the people who bring courage and independent thought to
the challenges of today. Hello, this is Todd's Awiki. I'm
here on today's Open mind podcast, and I am thrilled
to be here with the great Richard Epstein, law professor extraordinaire, probably,
(00:23):
along with F. A. Hyek, the single most greatest intellectual
influence on my own thinking and career and life. And
so I am really thrilled to have Richard with us
today to talk about his ideas and his intellectual evolution. Richard,
thanks for being here.
Speaker 2 (00:41):
Oh, it's a great pleasure.
Speaker 1 (00:43):
Well, Richard. According to a recent survey I saw, you
are the fifth most cited law professor legal scholar of
all times, narrowing out Oliver Wendell Holmes by at least
five thousand citations, who is a distant sixth. But that's
sort of the end of the story. I want to
go back to the beginning of this story, and I
(01:04):
think our listeners be really thrilled. I know I would
be interested. Hear how a good little Jewish boy from
Brooklyn ended up as the leading classical liberal thinker of
his era. Certainly in legal studies and maybe more generally.
So why don't we start at the beginning and if
you want to talk a little bit about your background,
(01:27):
whether you were always kind of a classical liberal or libertarian,
did you get that from your parents or sort of
what was your early experience.
Speaker 2 (01:35):
Let's start with the parents, right. I was born in
Brooklyn in April nineteen forty three. My father was an
eminent radiologist, and my mother ran the office. And my
first understanding of my parents is that the office was downstairs,
and I could still remember my father charging upstairs in
his white coat for a quick lunch. And it turns
(01:56):
out I was a case arguably have arrested development in
the sense that they had much less time than normal
to talk to me, and I started to be somewhat
of a late talker. I was also somewhat of a
kind of a difficult person, and I would say that
most of my family relatives had grim predictions for my
future fate. The only exception was my Grandpa Abraham, my
(02:19):
mother's father, but he unfortunately died when I was five
and a half. So I was my primary advocate, and
I was always a curious kid. My nickname when I
went on the school bus to Broad Channel Gay Camp
starting at three, was called lid Flipper. Don't ask me why,
but I kept on bouncing up and down and doing
one thing after another. And as I finally made it
(02:41):
into first grade, I had two kinds of teachers. One
of them said, oh, he's a very smart boy and
would try to teach me something, and others would say,
he's a very undisciplined boy. I wish he wouldn't keep
spilling the ink out of the ink well, which is
the kinds of things that we used at that time.
And I could still remember at least one occasion which
I spilled the ink so badly that I had spent
forty five minutes to clean it all up. I was
(03:03):
a klutz then, I'm a klutz now. Nothing much in
that regard has changed. But I had some teachers who
kind of at that early age did something to me
for which I'm still grateful. Of course, you can't repay them, right,
but you try to do it by teaching the next generation.
My first and second grade teacher, Miss Litwin, was always
extremely nice, and she knew that I had some math
(03:23):
talent and she tried to develop one on one and
one of the things that she had me do was
to twot to some of the other kids on the fundamentals.
And you know, by tragedy about my math education, it
was basically relatively undistinguished until I was twelfth grade, and
by that time I was a competent math student, but
nothing special. And then there was mister Greenberg, who was
(03:43):
my sixth grade teacher who taught us how to sing
and essentially was the teacher I had when brown v
Board came out, and that was just a couple of
weeks after Roger Bannis around the four minute mile, and
he was always somebody with a kind of prophetic vision,
and all of that stuff kind of rupted on you.
And so the way in which you sort of describe
your young life is that you're never going to be
(04:05):
the same person as the people who influence you. Indeed,
I've spent my entire life trying to avoid having any
kind of mentor because it's just too much control. But
you try to pick up a bit from this one
or back from somebody else and put them together in
line with your own personality. And I had many teachers
at that level who did that. It was also true
(04:25):
in Junior High and senior High school, I had teachers
who did the same thing. Miss Feldman was a wonderful
ninth grade intimist teacher, right, and I still remember the
way in which we learned all about Ivanhoe, and then
mister Fabrick, my tenth grade teacher, was exactly the opposite.
But when it comes to the tail of two Cities,
I still remember on page thirty seven or whatever it
was that what the Monsigne had drank for breakfast was chrong,
(04:50):
and then there was Madame Defarge and all the rest
of that stuff. And my teacher in my last year's
a man named Franklin W. Watson, I think was w
been at Brown and he introduced me to Florida philosophy,
which gets you're much closer to the home. And the
book that he picked on was one of the great
books of the time. It was the Mentor series on
the Age of Enlightenment, and the introduction was written by
(05:12):
Isaiah Berlin. And Berlin was just absolutely a magnetic kind
of writer. He's known for four or five things that
he's written one things or another, big ideas and small ideas,
boxes and hedgehogs and so forth. Historical inevitability and so forth.
But to me none of that was important. It was
this is the man who opened up the portal to
(05:34):
the British empiricists and the way in which they started
to think. And you know, from the very beginning I
had the following view that these guys are onto something
really big and really good. But it never struck me
as quite right. There was always pieces that seemed to
be missing on this and that was also true of
Berlin's were I was, even at the age of eleven twelve,
(05:55):
certainly by sixteen and seventeen interested in some kind of
synoptic theory. I didn't even know that theory would be
how it would develop, but that was always my mental
and intellectual inclination. What about my academic propensities, Well, most
people think that I was just weird. I did come
from a medical family. My father was a physician, but
he was also a writer, and I actually remember being
(06:17):
eating liver in the kitchens. My father would be off
with a great man named Leo David Offf writing a
book on the abnormal New Moon selfhleogram, which I'm quite
happy to describe to you. If you want to learn
about statistic treatments for understanding the way in which the
brain is exercise. And so people said to me, well,
later on, when did you think that you wanted to
be an academic? I said, probably when I was about eleven,
(06:39):
I said academic. I said, yes. I didn't want to
be a high school teacher or now amentary school teacher.
I wanted to be a professor. And you know, that
is a kind of a very strange way in which
to sort of run your alive. But it never was
anything else that I really wanted to do in life,
and I'm still not quite sure, but I was always
fascinated with the fact that there were ten ideas on
the table, and you could get eight of them to
(07:00):
fit quite comfortably, but those other pesky two didn't seem
to fit in. And the last two turned out to
be why it was I ceased being a pure libertarian
and became some kind of a classical liberty. Needed a
broader theory to take into account of a lot of
disturbing facts and arguments that you knew were correct, but
you couldn't explain within your own theory. And so I
went to college, and I was again extremely fortunate in
(07:23):
having good teachers in the way in which they did it.
And you know, I still remember instances the things that
happened sixty odd years ago which kind of shaped the
way in which I thought about all of this stuff.
I'll just give one of the instances right now. I
was a student of Earnest and Agel, and this was
in nineteen sixty two. I took a class in philosophy
(07:46):
of law, and the book that we read was just
that was Hla Heart the Concept of Law, And you know,
we sort of talked about it, and I was always
kind of troubled by it. I couldn't quite figure out
how we distinguished themselves even at that from Kelson, and
there's a story to that. And moreover, it turned out
that he tried.
Speaker 1 (08:05):
To do Oh Jesus, do law.
Speaker 2 (08:09):
He tried to do law. That was somebody calling me
if I don't want to answer. I tried to do
law as a kind of formal substance of inquiry, for
a formal inquiry where the substance of stuff was not
part of his essential commitment. And if you go to
the back of the book, he has a section on
the minimum content of natural law. And it's not so
minimal as I wrote about this some forty years later.
(08:30):
And he always tried to do what most sort of
Wastandian and English lawyers did, have a core of natural
law that they then cap into a very very narrow area.
And I didn't see how it was that that particular
system work. So even when I had Professor Nagel, I
was just deeply troubled about the lack of a synthetic
or agent by a teacher who himself was more of
(08:52):
a facts and circumstance man with respect to legal and
history than I would well. Anyhow, one of the seminal
events in my life was he thought well enough of
me as a student that he did something which was
largely unheard of it Columbia. He had me come to
a faculty workshop and just sit in the back of
the room. You have to remember at Columbia at that
time they were the offices. They were above the line,
(09:14):
and then there were the enlisted men down below the line,
and never the twain should meet. And he took me
this thing. It was a talk given by a logician
named Charlie Parson, whose father was Talcot Parsons, who was
very famous for the Structure of Social Action book which
I think was very important at the time, but in
retrospect kind of dated and outdated, I think in some sense.
And I'm sitting there listening to this and utter disbelief.
(09:36):
I can't believe how misguided the whole thing seemed to me.
And after over Nagel was just savage. He looked at
me and what he said was, I'm so annoyed. He said,
we managed to straighten these things out back in nineteen
thirty to nineteen thirty five, and the history of philosophy
since that time is unlearning what we saw. And so
(09:58):
I looked at him and said, what do you say?
And he told me he said, well, you didn't want
to go into philosophy. I said, don't know. He says, well,
if you could do what Paul Cohen did. He was
a famous logician who did one famous thing in his lifetime,
but it puts him with the immortals. And I said, no,
I don't want to prove the decidability theory. Indeed, I'm
taking a course with a man named Van Eenhort in
(10:20):
mathematical logics and I couldn't do the math. But somehow
or other, when I read when aslon'so Church wrote about
the ordinary language stuff. It just seemed to me to
be wrong. And I realized that that's where my peculiar
strength lit in figuring out how to do with verbal
translations and approximations of mathematical notions in a way they
try to preserve their intellectual integrity. So anyhow, well, it's
(10:43):
that's the second album.
Speaker 1 (10:44):
Yeah, we'll come back to.
Speaker 2 (10:46):
But what, so Nagel said. I said, I can't do
that stuff, And so he said, look, I have a
friend named Charlie Bradtell, and that's Charles Bridtell later became
a quite distinguished and thoughtful member of the New York
State Court of Appeal. And so for that I teach
a seminole with him over at the law school. And
as far as I'm concerned, you're better off going that
(11:07):
route than you are staying inside a philosophy department. And
so I thought about it, and I said, what he's
telling me is I can take the back channel and
get back into political philosophy without going through the degree. Now, Columbia,
this was a serious issue. One of the reasons why
you had the riot in nineteen sixty eight at Columbia. Well,
the obvious reason was that Columbia lost in the first
(11:28):
round of the NCAA Finals to Davidson. But the second
reason was that it ran on essentially a hierarchical structure
in which they had very low peons called instructors in
below that preceptors or something. And the basic theorem was,
if you had a students about ready to get his PhD,
don't read the thesis, so you could keep him in
(11:49):
line for another year. And so going to Columbia meant
that there was a whole cadre of instructors who would
deeply resent for the web in which they had been
exploited and abused with no realf And so when I
went to law school, I was past all of that stuff.
I did something which was completely unconventional. What I decided
to do was to go to Oxford, but to study
(12:12):
get yours.
Speaker 1 (12:13):
Let's take a quick step back and go back earlier
in time. So you're going through high school. You d
was a radiologist, were you? And obviously we're very right
precocious interested other things. Did you think in political terms
at that point? Were you? You said you kind of
started off as a libertarian. No, I mean did that
(12:35):
come later.
Speaker 2 (12:36):
As a theory? It came later. In fact, I first.
Speaker 1 (12:39):
Realized most Brooklyn Jews in that era would have been Communists.
No I was not, obviously you are not.
Speaker 2 (12:44):
No, they were new deal children in some sense, but
essentially the kind of defining adventures of that time were
much more pragmatic. It was Uncle Sammy and Uncle Albert,
and both of them had businesses in New York City,
and it turns out that they couldn't do business with
the labor union, and so one went to York, Pennsylvania,
(13:06):
the other one somewhere else outside the city Tolds Oklahoma,
I think in the part. And I began to realize
that somehow or other, this was not a sensible way
to do things. And then I asked reasons as to
why all this happened, And it was a combination of
unresponsive physical plan. These stores were on two levels, and
we were trying to run a production line. It doesn't work.
(13:26):
And then they were the constant political issues associated with
the union. So what happened is I was kind of
a skeptic rather than a libertarian. And I remember listening
to the nineteen sixty presidential election being shown like everybody
else by John F. Kennedy, but not quite persuaded by it,
so I wouldn't have called myself a Republican at that
particular point in time. I had read by that time
(13:48):
the stuff about Lock and Hume, but it wasn't quite
that I put all the dots together by the time
I got to college and started.
Speaker 1 (13:56):
Reading this the college about what you're.
Speaker 2 (13:58):
I ended nineteen sixty, went to Columbia. It's a shadow
of its former self. But when I went there, it
was a great place. And you know, what do you
remember while you go in there and have freshman orientation?
And the strategy of Columbia was to take all the
great professors and prayer in front of you, Gilbert High's
Modus Hatters and Jacques Barzone, whatever it was. And so
(14:19):
we had a book to read for the orientation period
called The Two Two Disciplined and so forth by E. P.
Snow And this was both a novelist on the one
hand and a scientist on the other. And the great
question that we had to ask is how you could
reconcile if at all the two kinds of expertises that
he had. Well, that's exactly the kind of question that
(14:39):
you want to ask when you're a freshman. It is
about political theory in some sense, but it's not about politics.
The politics, of course, was that John Kennedy lost to Nixon,
and there was an appropriate amount of horror and disappointment
in New York City about that. Remember, the Nixon of
the nineteen fifties was not regarded as an admirable figure
in many ways. Little dog checkers and so forth. Eisenhower
(15:02):
basically you didn't know whether he liked them, was just
acquiescing to him and so forth, And so that was it.
But I then started to take more serious courses, and
you know, I you know, it's all depending on your teachers.
I had a man who recently passed away named David
sed He was not a great scholar, but he was
a great teacher. You know what, do you think? I
could still remember his lectures on the Theatitis, which I
(15:24):
heard in the fall nineteen sixty two. And then we
read Discourse on the Message by Descartes, and then we
read the Ethics of G. E. Moore and so forth,
and these were important books.
Speaker 1 (15:35):
And you weren't studying economics during this period.
Speaker 2 (15:39):
No economics what so okay, but.
Speaker 1 (15:42):
You were going through here and then but eventually you
get directed towards law school.
Speaker 2 (15:47):
Yeah, well I could explain that too. It was, uh,
it was I was doing Polford.
Speaker 1 (15:54):
I'm sorry, I'll get.
Speaker 2 (15:56):
To that, and said, okay, but I mean there, know
what happened is when you were sitting there at that
particular age you have teachers were very powerful like Nagel
and Daniel Bell and so forth. Neither of them were economists,
and that was kind of the missing piece. I never
took an undergraduate course in economics. I did sit in
from time to time, and of course talk by William Vickery,
(16:17):
who won the Nobel Prize and died at the toll
booth going up to Massachusetts, so he could never claim it.
And it did have some influence on that, but that
was not essentially my dominant way of thinking about the
subject matter, and I didn't It's not that I was
hostile to economics. Essentially, I was not part of that
particular tradition. Well, then there was the question about where
(16:38):
I go to law school, and I had a very
distinct view about this subject. I said, if you want
to be an academic, you need a very broad base,
and I thought going to England and studying Roman law,
which was the right call and English legal history and
stuff would really make a big difference when I came
back to the United States.
Speaker 1 (16:56):
That was your idea, mine Roman and not directed by
somebody Columbia.
Speaker 2 (17:00):
And not only that, and not taking PPP in England. Right, Well,
I mean I'd want to go to law school. And
then I will tell you the conversation which still sticks
in my crawl mildly. So we have a pre law
session and the instructor from the law school came over
as a man named Monrad Paulson, Cadish and Paulson Right.
The criminal law gone, and people are starting to ask
(17:24):
questions about law school and this, that and the other thing.
And about three fourths away through the session, I raised
my hand and I asked the following question. I said,
if you want to become a law professor, what should
you do? Do you want me to quote the answer? Yes,
because it's word for word. It's only sixty one years ago.
He said, First you go to Harvard yal On, Columbia.
Then you finished first in your class. Then you become
(17:45):
editor in chief of the Law of You, then you
clerk for the Supreme Court. And then, young man, you
could ask me that question that is a direct quote.
I was absolutely polloxed by that. I couldn't believe that
anybody could be so dumb. All I wanted him to say, well,
read Oliver, when mahomes the Commons law. I mean, I
didn't want him to guarantee me admission. But what I realized,
(18:08):
strangely enough afterwards, is that's a formula for mediocrity. What
you really need to do is to be much more
independent and much more intellectual inventors. Finishing first in the
class may or may not matter. I did go to
Yale and to Oxford. I didn't clerk on the Supreme Court.
I barely made it onto the law of you. But
I was much more intellectually and general intellectually energized than
(18:30):
most of the people who had done those things. And
it turns out the real question about becoming an academic
is could you figure out how to make the transformation
from being a very dutiful and excellent student to being
somebody who's capable of doing original work. And that's the
lesson that became perfectly clear to me even when I
was asking him that question. And so I said to myself,
(18:51):
the last thing I want to do is to fit
into a formula way. All that I do proves that
I have earned the approval and adelation of my faculty
member want to see you. I could kind of strike
off on my own own way. And so what I
did is I did get a scholarship. It wasn't the Rose,
it wasn't the Marshal, it was a Kellor scholarship. So
(19:11):
I go for an interview for the Marshall scholarship, and
you know, I had a very strong record, and I
put down I will go to Oxford or I will
go to Cambridge the law school, when the instructions explicitly
said you could only put down one of the two,
and then you have to put down a white brick
or a red brick. So I go into the meeting
and they say, you know you're not allowed to do this.
I said, yes, I am, because I will not take
(19:32):
a Marshall scholarship if I have to do philosophy. Because
they had asked me whether i'd go to brit School,
which was a time an excellent department, I said no,
I don't care about the degree as much. I mean
they kind of looked at me kind of wonky. Why
is this guy basically killing his chances for the scholarship.
But it was because I knew I was going to
get a scholarship from Columbia and that would allow me
to study law. I didn't know whether I'd go to
(19:54):
Oxford at Cambridge, I ended up at Oriel College, Oxford,
and where I had the great fortune of having first
Alan Watson as a teacher who became kind of famous
as the Transformation guy, and then Bernard Rutt, and they
were my two major tutors, and I learned different things
from both of them. But the most important thing I've
learned was to figure out how to do law by yourself.
Speaker 1 (20:14):
Because that's the way they do it into.
Speaker 2 (20:15):
Yeah, as one on one tutorial. But it was a
very unusual set of circumstances because a I didn't know
what most Englishmen knew. But on the other hand, I
was taking a number of graduate courses in philosophy and
so forth, and so I had to take jurisprudence. Took
it with a man named John Ekolar, a young tutor
coming out of it was then Rhodesian to Pembroke College,
(20:36):
and we became kind of friends, and thirty years Await
and I talked to him. He said, I have to
tell you, every time you walked into my wolfice for
one of these toils, I really got a case of
the willies. I had never dealt with anybody like you,
but he had it. I mean it was you know,
we were the same age. I was maybe a year
younger than I am, but I had done graduate work
in philosophy, and he was just a very smart guy.
And it turned out he was a very distinguished scholar
(20:58):
and a fine gentleman. But it was a very atypical mix.
When you went there.
Speaker 1 (21:03):
Were any of these tutors experts in Roman.
Speaker 2 (21:06):
Law, or Watson was the Roman lawyer. But look, I
mean it started out. I can't begin to tell you
what a catastrophe it was. Because what happened is I
took the second course in Roman law. The first course
in Roman law was taught in the first examinations, which
was for two quarters. The second part was the seven
quarters of instruction, but the Americans had a cram it
(21:29):
into sixth so I had not had the first Roman
course when I took the second Roman court and the
high point of my first tutoria. This I remember because
of the hute embarrassment that it caught is we talked
about stipulations and accept the latios, and I thought an
accept the latrio was like an offer and acceptance. No,
and accept the lato is a release, as a kind
(21:50):
of a converse situation to the formation. And so there's
Professor Watson, very learning, looking at me and disbelieve how
anybody could mess up something so badly on this stuff.
And well, the reason I did it is I knew
a little Latin. I didn't know that. But what happened
is I got attracted to Roman law for reasons that
were not the reasons that our friend Watson had. Watson
(22:13):
was in in fact, a genius at one thing. He
did by far the best translation of the digest, I
mean all four violumes about that. And he had done
a huge amount of work on the history of Roman
law and the early Roman Republic that is roughly before
Caesar and Octavius and all the rest of that stuff
is what he knew. But he wasn't a structuralist. And
what you mean by that, I mean, well, I looked
(22:35):
at the Roman law and I said, well, why is
it that you have a rules for stipul audio, which
are unilateral contracts as opposed to US for sale, which
a bilateral contract, And why do you put that together?
And how do you put it together? And so forth?
Why do you have three different kinds of guarantees instead
of only one kind of guarantee? And why is it
that they don't allow you to bury the term?
Speaker 1 (22:55):
And he approached it.
Speaker 2 (22:57):
Historic matic and the dominant pattern Oxford at that time
was to make sure that you could detect an interpolation
in the text by getting a sense of the grammar
in the mood that was the nineteenth century writer. I mean,
those guys read Latin. They didn't read a foreign language.
They read Latin as well as they read English in
terms of everything they did. And so just as you
could pick up an awkwardness in an English text, they
(23:19):
could pick it up in a Latin text. But I
did not want to spend my time making sure that
the interpolations were correct. So the man who essentially inspired
the trans large if he was a man named David
Dowba and Dalbo was a German refugee. He came to there.
He'd written a very famous article on lyrics Equilia about
the word rit and fuitt is it pasted or is
(23:40):
it future? When you're talking about damages to animals that
are a lot. He was an exceptional tutor, not a tutor,
a lecturer. So I used to go to his lectures.
And I also went to Hla Heart's lectures at that time,
and the tradition at Oxford was professor's lecture. But you
can't talk, and so you just sit there and listen.
But that's okay, And you know they I had huge
influence on my life in terms of the way in
(24:02):
which it thought, but it was in a kind of
a different way. It was God, I think you did
great things, but there's something missing in all of this,
And I said, I couldn't quite get it. Dalbum is
more of a structuralist than Heart, but hard For example,
there were two things that I remember about his lectures.
Once he tried to apply the theory of causation that
(24:24):
works pretty well in towards case to the law of contract,
and he confessed he couldn't make any sense of it. Well,
why didn't he make sense of it? Because the dominant
issue is not contract. In contract, it's not causation. The
dominant issue in contract ex anti agreements to maximize joint welfare.
And what you do is you tend to allocate loss
is one way or another, but causation is strictly derivative
(24:47):
upon the way in which you allocate these losses. And
it turns out that the essential feature in contract law
for consequential damages is to figure out when the expectation
measure works and when it doesn't work. And nobody want
to talk about those issues. And it took me some
time to get past it when I realized that Heart
didn't quite understand it, and he didn't understand antitrust law
(25:08):
for the same kind of reasons, and so.
Speaker 1 (25:10):
Forth a Heart was substantively a criminal law.
Speaker 2 (25:13):
No, No, he was basically he did several things other
than yeah, well, he started off as a chancery barrister
in the nineteen thirties. He was born nineteen oh seven.
And what happened is he went into the service and
he was a code guide breaker, and so forth it
comes out and he wants to study law, and he's
now in his early forties and he writes a paper
(25:35):
for the Aristotarian Society on prescription and descriptive rights. The
paper's a complete intellectual mess, and he later repudiated it.
But the important thing is he had repudiated it for
the wrong reasons that he did not understand why the
paper was wrong, and what he tried to do was
a great mistake that often happens with philosophical times, which
(25:56):
is he thought that you could solve a lot of
problems by definition, when in fact what you have to
solve them is by substanti theory. And so the definition
of a contract it should not include all excusing and
justifying condition. What it is is very simply the definition
from Pothier, which carried over from the French to the
English world, is an agreement by two people to either
(26:18):
perform or abstain from some kind of an act period.
And the question about responsibility is solved in the following way.
If in fact there's non performance of a contract, that's
the premia facial evidence of breach. And what you discover
as you go through the English language, and it carries
over to every other known language as well, is you
have two sets of words. One is descriptive and the
(26:38):
other turns out to be ultimately judgmental. So non performance
is one word. The judgmental word is breach. Right, and
when you start dealing with torts, I mean it turns
out the first word is killed, but the justification word
is murdered. And what you have to do is to
figure out how these words pair up. And the only
way in which you compare the love is you have
(26:59):
to figure out how it is that you make them
move from one to the other. And you know how
you have crossw puzzles, right, and you replace a letter
on a chain and you get to the bottom of
it with a different word, hot, the cold or whatever
it turns out. Well, that's what you have to do.
And when I was fairly early on, I realized that
the notion of a presumption became the dominant intellectual tool,
(27:20):
and that none of these guys wanted to talk about
that as the way in which these things were done,
and so that the whole senterprise, to some extent, was
a mistake. The other thing that Heart got wrong, and
he was an interesting debate, was the difference between himself
and a man named Kelson. And now Hans Kelson is
widely forgotten today by most American. You've heard of him, right, Well.
Speaker 1 (27:41):
He talks about him alive, Yes, right, that's the reason
I know.
Speaker 2 (27:45):
But Kelson, he was a very important legal figure who
lived into his nineties. He started writing very early in
the twentieth century. He wrote his masterpiece on international law
in nineteen forty five, but earlier on he tried to
figure out what the pure authority of law was and
so forth and it and it was a kind of
(28:06):
definitional stuff. Yes, well, and he got it half right.
I mean, when he wanted to do what's laws, he says,
you look at a proposition, thou shalt not kill? Is
it law? Well, the answers and told, you know who
pronounced that? Lawyer, You don't know whether it's law. So
you go back to the sovereign problem. If it's a
sovereign who pronounces it, and then you need a rule
of recognition, and then it's a law. But in truing
(28:29):
it you always have to worry about the presumption side.
And he was more worried about the authentication side and
less worried about the interpretive side. And Heart basically wanted
to say his theory was radically different from that of
Austin and from that of Heart, and that was the
electure we got in nineteen sixty four. Nineteen sixty five
comes along and Heart, in the meantime had visited Kelson
(28:50):
at Berkeley, where he then was staying. He came back
and says, well, I have to tell those of you
who you last year, I made some very mysterious, serious
mistakes in the way in which I understood. And it
was extremely generous of a very eminent guy to come
forward and to talk about all those errors. And essentially
what happens is the two guys were much more convergent
than you might have otherwise had thought, and that the
(29:12):
differences between them really did not matter. It's a choice
of audience. And it turns out, yes, law is addressed
to officials, and yes laws addressed to the public. They
may respond to it in different ways. The public wants
to know the basic case and wants to stay out
of trouble, and the official has to know all the
ins and outs to deal with the hard cases of
adjudication before them. But they're both looking at the elephant
(29:34):
in a slightly different way. And it was very important
to listen to that and to learn from that. And
I only met hert once in my life, and I
was at a friend named Hobby Whiting w Eting who
had worked with him, and I was coming back from Oxford.
I guess it was in the summer of nineteen sixty
seven or sixty eight, by which time I was already teaching,
(29:55):
and I made the terrible not mistake, but observation. There
was a famous man called John Shipman Jack Gray, I
think you remember his name. Well. He did two things.
He wrote a book on the Rule against Perpetuities, with
its mathematical formulas, less mathematical than meets the eye when
you understand the number of accommodations they have to do
a non mathematical basis. And then he wrote another book
(30:16):
about the Nature and Sources of Law, which seemed to
me to be a book that was much more about
the evolution of law with a slightly open ended, somewhat
mostigious situation. So I mentioned at the hardness, and I
didn't see how these two books were easily reconciled. What
a mistake. For the next thirty minutes on that train
from Auxfory, all he did was to grow me with
(30:38):
an inch of my life. And I mean this was
his game, not my turf. I made it as an observation,
I wasn't making it as a commitment. But he took
it his stuff, and when he got onto a topic
he played win his keeps it didn't care who was
on the other side of that thing, And so I
got off of that chain more shaken intellectually than I
ever was. And then I don't know if you know this,
(31:00):
but I spent a large part of my career building
on the heart and honorary model of causation. But most
of the is finding it has very serious internal errors.
Speaker 1 (31:10):
So that starts with heart raising questions causation.
Speaker 2 (31:14):
Yes, yes, and lies, and I could still yeah. Well,
of course he never talked about the differences, but on
page three of the book he made one of the
more profound statements. He says, everybody wants to tell you
that causation is a matter of policy, and that seems
to derive it of any continent whatsoever. He says, I
will recognize that there are difficult cases, but I want
(31:36):
you to understand that they're recognizable cases, and that we
don't want to go to the two extremes of saying
it means nothing, it means everything. That was on page
three or something of the book. In nineteen fifty nine,
the last lectur he gave on the Nightmare in the
Noble Dream. I don't know if you know this, but
it was in Georgia. The nightmare is thinking you get
perfect precision, and the noble right, all right, as you
(31:58):
can't get any precision, and the noble dreamers you can
get it right. And so he was a guy who
was in the middle. Well, the moment you start talking
about presumptions, what happens is all of a sudden that
becomes perfectly clear that it has to be. What the
presumption does is it sets the first stage in an argument,
and it probably covers ninety percent of the cases you do.
(32:18):
And then the next level is a magnet orderitude down.
So what you find out is that the cases are
the greatest difficulty the cases of the lowest frequency, which
means in effect that you could decide them either way.
But so long as the rest of the body is
not upset by the way in which you treat cases
on the fourth brigadion, on the fourth marching order, the
system is going to worry coherent in practice, even though
(32:40):
in theory it's going to have these kind of loose
end And that sort of came to me at that time.
What happens is presumptions then lead you into figuring out
how you balance, and then once you start to figure
out how you have to balance. What it does is
it makes you much less less of a libertarian than
you were, because libertarians are always yes, no rules, not
balanced rules. But they tend to do that under a
(33:02):
very restrictive set of circumstances. Namely, they talk about these
kinds of circumstances whether tom is already caused, and the
issues whether you pay or don't pay. What they don't
talk about is you don't know whether it's going to
happen or not happen, and you cannot use that kind
of certitude. So what do you do? You do what
you do and what I do two kinds of errors,
(33:24):
ladies and gentlemen. Well, that means you have really estimation
problems of one kind or another. You don't get that
hard edged rule, but you do have a theory of
what you're trying to maximize and minimize. And that's enough
to make it into a theory. And so you have
to understand. Once you understand that point, what happens is
you don't become the crazy realist where anything starts to go.
So anyway, learning all that I think was extremely important.
Speaker 1 (33:46):
Well, it strikes me also you mentioned earlier when you
were very early on when you're talking about Isaiah Berlin
in that you were almost immediately attracted to the British
empiricist tradition, now you know, which is very much This
inclases me as well, And it sounds like many of
the same echoes, right, which is, for those of us
like you and I who love the common law and
(34:08):
are skeptical of sort of libertarian theorizing from first principles,
we are describing the way you thought about Roman law
structurally and asking these questions. It's very much of an application,
sort of the British empiricist tradition of let's see what
people are actually doing and figure it out, and hey,
(34:29):
it turns out there's kind of logic here.
Speaker 2 (34:31):
Yeah. Well, let me give you a kind of an
example of that. I mean about the libertarian situation. It
turns out if you are a contractual libertarian or promises
are enforceable independent of their content, all you have to
do is to prove that the conditions on defeasibility, mistake, frustration, coercion,
(34:53):
and so forth on't that? So then you get to
seventeen eleven and you read a case called Reynolds against Michell.
This is the case for the Audience, in which it
turns out the English court when they had a contract
for services, it said that you can prevent your employee
from going off and starting in competition. But there were
three conditions attached to that. It could only be for
(35:15):
a year, it could only be for the same products,
not new products, and only in the same location. The
quintessential balancing ta So I remember asking one of my students,
who just got a PhD in content, I said, what
would a continent say about the rules on restraint of trade?
He didn't know. I said. The first thing he didn't
(35:37):
know is in the libertarian system there is no subcategory
of contracts which are in restraint of trade. They're all
the same. And then you look at this English tradition
and it takes in seventeen eleven, but if you go
back you can see traces of it even further. You
go forward, you see nobody trying to erase it. You
see people trying to qualify.
Speaker 1 (35:57):
And when you look back in fourteen ninety two and
they struck down Covenant South the commuters, it was during
the guild.
Speaker 2 (36:03):
Ere Yeah, and that was and that's another problem.
Speaker 1 (36:06):
The common law has this ability to adapt to the
world around.
Speaker 2 (36:09):
And of course what the interesting thing is the judges
who did it. They were rum for a lot. They
couldn't quite give you a formal explanation, but they were
much more empirical in the sense they looked around at
the world and they said, this seems to us to
be a bit too much. And so with Roman law
and with the early English common law. My early intellectual development,
(36:31):
and it's still part of my law, is to say,
you've got a bunch of rules. They sit very awkwardly
with the libertarian tradition where's the deviation and when is
it right?
Speaker 1 (36:42):
And when is it coming back to that? For this
first session, I want to go ahead and get to
when you went to law school, you came back from Oxford,
you went to law scho.
Speaker 2 (36:50):
And went to Yale, and went to Yale. And now
that was a night. No, it was an interesting phenomenon, right.
First of all, I had left in nineteen sixty four
when the gold Water Campaign was up, and I could
still remember virtually everyone I knew at the time, perhaps
even myself, who said, if he becomes president of the
United States, the world is that and then and well
(37:11):
he lost pretty decisively and when I get back to
Oxality Yale, it's a completely different world from what it
was when I left in nineteen sixty four. The change
started in nineteen sixties. I'll go back to college just
for a little bit. What was the tradition for freshmen
coming into Columbia nineteen sixty We all wore blue beanies
(37:32):
for the first several weeks of classes, light blue with
a white sea on top of it, and you could
see us all over the campus when our beanies. The
next year, half the class warped. Bennis the thirty and
nobody wore beanies and so forth, and so that all
of the kind of collective traditions that you had committing
yourself to a common form of scholarship were essentially removed
(37:54):
from the way in which we worked. I didn't think
much of it at the time, but as I think
back to it, the beanie world was better than the
non beanie world, because what happened in nineteen sixty three,
people weren't wearing beanies anymore. They were wearing SDS flags
or things. I mean, they really were extremely assistant, and
you could watch this thing kind of disintegrate in front
of your eart. So you go off and you see
(38:16):
the Kennedy had just been killed. You see, come back
two years later and this is not just this is
now the dominant ethos at every place that you could find.
And well, it was very hard to fit in because
by that time I was a common law libertarian. That
is the way English education work is the only thing
(38:37):
you studied really was common law. You had one course
in an administrative law and this is basically what the
course works. It's different now in England is that the
courts do not interfere with Parliament or its committees. Very
short course that you had to have. And so I
remember somebody wrote a letter to the judges saying, I
(38:58):
think my examination, mister state of law was misgraded, and
I hope that you guys went to Visa corrected. And
the answer came back. The very fact that you have
brought this lawsuit proved to us that the grade was
fully justified. But that was the tradition, and my teacher,
it was a man named d G. T. Williams, who
was kind of a little bit out of that tradition. No,
(39:21):
he was at Keble College and then he later became
fairly distinguished guy at at Cambridge, he left Oxford, but
he sort of had some that the major issue was
a real estate issue, was a case called Steavenage, and
it had to do with the green belt that was
put abound London. I don't know if you know what
the green belt is, but you think of this as
(39:42):
Central Park going all the way around, and their massive
prohibitions against construction within the area. And so the question
is what kind of attack could you raised on the
green belt and think of this as kind of like
Euclid also, and the answer was only the pettiest of
procedural kinds of objections and the whole and continue to
go because everybody thought that the model of civil servants
(40:06):
with degrees in Latin and geometry were the people to
decide the fate of the union. So it was their
version of the German Research University, their version of Woodwroll
Wilson saying, we understand all these common low wolves are
just an impediment against us great mind. And you know
watching this and then by that time the system had
failed that you knew something was wrong. So I'll give
(40:28):
you another Oxford story.
Speaker 1 (40:31):
So they decided Bentham had won the debate with Bla.
Speaker 2 (40:34):
Well. It turned out they believed the same thing. If
you actually go back, both of them believed that the
permanence of possession was one of the most critical issues.
And they but yeah, but they didn't even have different
method and neither of them had a method a method.
But essentially the Roman proposition that they had to debate
was how do you retain possession? And the Romans got
(40:57):
the right answer that question. We tell you how you
why a possession, we tell you how you lose possession,
but we don't tell you how you keep possession because
you don't have to do anything to keep possession. So
essentially what happens is if you put something in your
house and go out and lock the door, it's not
within your hands, but it's within your possession until somebody
(41:17):
breaks in and takes the thing down. And so what
they did is they solved the problem in that way.
And both of them believe that you had to have
that rule because otherwise you couldn't put anything down and
go outn't hunt for anything else. That was a straight
utilitarian justification. And you go back and you read the
Roman text, they're not quite there, but they very much
(41:37):
understand why it is that the stability of possession becomes critical,
which is why possession, it's one of the great problems
of the early common law, extremely often talked about in
one faster or another. And of course, who is a
trained in Roman law? David Hume.
Speaker 1 (41:54):
He's a Scotsman right.
Speaker 2 (41:57):
And he basically the term that he uses when he
talks about property is the stability of possession and he
got it straight out of the Roman sources on which
you rely.
Speaker 1 (42:06):
So that's almost out of time for this session, so
just give us a few minutes and tell us what
you're You said you came back from Oxford, the universities
had changed. What was your experience like A yehe.
Speaker 2 (42:17):
Well, I was the only guy who knew COmON law
in the whole play, and this was regarded as a
kind of a demerit. And I was not on the
law Inview because that had been established, so it was
always a kind of an outside of that institution. And
then I basically had to get into teaching, and a
man named George Lefko comes through. George was very determined
(42:40):
not to interview anybody, so he only put up a
sign in the Law Review office. I signed it on eleventh.
Tom Gray whom you know was number ten. Tom says,
I got a job at Stanford Aray, so you take
the end. And God was kind to me.
Speaker 1 (42:54):
So straight out of law school you interviewed for.
Speaker 2 (42:57):
Well, I was in my third year and what happened
is leftgo comes in. He was from dark and it's
supposed to be a twenty minute interview and it lasted
for three hours because it was nobody behind me. I
kept chasing after George, and George kept chasing after me,
and it was a brawl and he just said, well,
you're coming out obviously to interview. Then I went out
(43:19):
there to interview, and essentially a USC it's the only
interview I had. UCLA had scheduled me and then said
you're too mature the matter. That probably were right, and
so I did essentially a thirteen hour stint and it
ended in the topless bar, a different environment and so far.
(43:40):
But it was just non stop to and that's my
metier right. There were no papers, no presentation. Dorothy Nelson
asked me if I knew something about the freeway system.
I said, well, Dorothy, I figured out what the basic
organization was and then described the grid and that kind
of pleased her in some sense. And I can still
remember Dorothy had a rare out of putting her foot
(44:00):
in her mouth when she meant well. So I'm just
going to read one sentence from the acceptance letter that
I got three days later. I'm out on a Thursday.
On the Tuesday, I get the letter, and I says, dear,
Professor Epstein, that should have been a hint, right, yes,
but I didn't. And she opens it up. She said, dear,
I was so glad to meet you last week in
Los Angeles. I regret. Oh my god, that regret basically
(44:21):
still sticks in my cass. What do you regret that
I didn't have more time to spend it? I mean?
And then I got an offer, and off we went
to USC And at that point it's my general academic
development as a transition. I will just say one thing.
My late and dear friend Michael Levine and I went
out to lunch the first day I got there with
(44:41):
a man named Lou Brown and Ronald and Michael talked
about a man named Coas.
Speaker 1 (44:48):
Man named Coas.
Speaker 2 (44:49):
I said, oh, sounds interesting, and Lou Brown said, look,
it's important not to make erics. It's important to prevent them,
and so it's Christmas Pants and Christmas Future was sitting
at the same table on the same day.
Speaker 1 (45:02):
Well, that sounds like a great place to stop with
this episode and we can pick up with part two
and learn more about your early career at USC and
then moving to Chicago and your intellectual development from there.
So we'll look forward to part two. The interview with
(45:23):
Richard Epstein
Welcome to Open Minds, a freedom of thought podcast series
interviewing the people who bring courage and independent thought to
the challenges of today. Hello, this is Todd's Awiki. I'm
here on today's Open mind podcast, and I am thrilled
to be here with the great Richard Epstein, law professor extraordinaire, probably,
(00:23):
along with F. A. Hyek, the single most greatest intellectual
influence on my own thinking and career and life. And
so I am really thrilled to have Richard with us
today to talk about his ideas and his intellectual evolution. Richard,
thanks for being here.
Speaker 2 (00:41):
Oh, it's a great pleasure.
Speaker 1 (00:43):
Well, Richard. According to a recent survey I saw, you
are the fifth most cited law professor legal scholar of
all times, narrowing out Oliver Wendell Holmes by at least
five thousand citations, who is a distant sixth. But that's
sort of the end of the story. I want to
go back to the beginning of this story, and I
(01:04):
think our listeners be really thrilled. I know I would
be interested. Hear how a good little Jewish boy from
Brooklyn ended up as the leading classical liberal thinker of
his era. Certainly in legal studies and maybe more generally.
So why don't we start at the beginning and if
you want to talk a little bit about your background,
(01:27):
whether you were always kind of a classical liberal or libertarian,
did you get that from your parents or sort of
what was your early experience.
Speaker 2 (01:35):
Let's start with the parents, right. I was born in
Brooklyn in April nineteen forty three. My father was an
eminent radiologist, and my mother ran the office. And my
first understanding of my parents is that the office was downstairs,
and I could still remember my father charging upstairs in
his white coat for a quick lunch. And it turns
(01:56):
out I was a case arguably have arrested development in
the sense that they had much less time than normal
to talk to me, and I started to be somewhat
of a late talker. I was also somewhat of a
kind of a difficult person, and I would say that
most of my family relatives had grim predictions for my
future fate. The only exception was my Grandpa Abraham, my
(02:19):
mother's father, but he unfortunately died when I was five
and a half. So I was my primary advocate, and
I was always a curious kid. My nickname when I
went on the school bus to Broad Channel Gay Camp
starting at three, was called lid Flipper. Don't ask me why,
but I kept on bouncing up and down and doing
one thing after another. And as I finally made it
(02:41):
into first grade, I had two kinds of teachers. One
of them said, oh, he's a very smart boy and
would try to teach me something, and others would say,
he's a very undisciplined boy. I wish he wouldn't keep
spilling the ink out of the ink well, which is
the kinds of things that we used at that time.
And I could still remember at least one occasion which
I spilled the ink so badly that I had spent
forty five minutes to clean it all up. I was
(03:03):
a klutz then, I'm a klutz now. Nothing much in
that regard has changed. But I had some teachers who
kind of at that early age did something to me
for which I'm still grateful. Of course, you can't repay them, right,
but you try to do it by teaching the next generation.
My first and second grade teacher, Miss Litwin, was always
extremely nice, and she knew that I had some math
(03:23):
talent and she tried to develop one on one and
one of the things that she had me do was
to twot to some of the other kids on the fundamentals.
And you know, by tragedy about my math education, it
was basically relatively undistinguished until I was twelfth grade, and
by that time I was a competent math student, but
nothing special. And then there was mister Greenberg, who was
(03:43):
my sixth grade teacher who taught us how to sing
and essentially was the teacher I had when brown v
Board came out, and that was just a couple of
weeks after Roger Bannis around the four minute mile, and
he was always somebody with a kind of prophetic vision,
and all of that stuff kind of rupted on you.
And so the way in which you sort of describe
your young life is that you're never going to be
(04:05):
the same person as the people who influence you. Indeed,
I've spent my entire life trying to avoid having any
kind of mentor because it's just too much control. But
you try to pick up a bit from this one
or back from somebody else and put them together in
line with your own personality. And I had many teachers
at that level who did that. It was also true
(04:25):
in Junior High and senior High school, I had teachers
who did the same thing. Miss Feldman was a wonderful
ninth grade intimist teacher, right, and I still remember the
way in which we learned all about Ivanhoe, and then
mister Fabrick, my tenth grade teacher, was exactly the opposite.
But when it comes to the tail of two Cities,
I still remember on page thirty seven or whatever it
was that what the Monsigne had drank for breakfast was chrong,
(04:50):
and then there was Madame Defarge and all the rest
of that stuff. And my teacher in my last year's
a man named Franklin W. Watson, I think was w
been at Brown and he introduced me to Florida philosophy,
which gets you're much closer to the home. And the
book that he picked on was one of the great
books of the time. It was the Mentor series on
the Age of Enlightenment, and the introduction was written by
(05:12):
Isaiah Berlin. And Berlin was just absolutely a magnetic kind
of writer. He's known for four or five things that
he's written one things or another, big ideas and small ideas,
boxes and hedgehogs and so forth. Historical inevitability and so forth.
But to me none of that was important. It was
this is the man who opened up the portal to
(05:34):
the British empiricists and the way in which they started
to think. And you know, from the very beginning I
had the following view that these guys are onto something
really big and really good. But it never struck me
as quite right. There was always pieces that seemed to
be missing on this and that was also true of
Berlin's were I was, even at the age of eleven twelve,
(05:55):
certainly by sixteen and seventeen interested in some kind of
synoptic theory. I didn't even know that theory would be
how it would develop, but that was always my mental
and intellectual inclination. What about my academic propensities, Well, most
people think that I was just weird. I did come
from a medical family. My father was a physician, but
he was also a writer, and I actually remember being
(06:17):
eating liver in the kitchens. My father would be off
with a great man named Leo David Offf writing a
book on the abnormal New Moon selfhleogram, which I'm quite
happy to describe to you. If you want to learn
about statistic treatments for understanding the way in which the
brain is exercise. And so people said to me, well,
later on, when did you think that you wanted to
be an academic? I said, probably when I was about eleven,
(06:39):
I said academic. I said, yes. I didn't want to
be a high school teacher or now amentary school teacher.
I wanted to be a professor. And you know, that
is a kind of a very strange way in which
to sort of run your alive. But it never was
anything else that I really wanted to do in life,
and I'm still not quite sure, but I was always
fascinated with the fact that there were ten ideas on
the table, and you could get eight of them to
(07:00):
fit quite comfortably, but those other pesky two didn't seem
to fit in. And the last two turned out to
be why it was I ceased being a pure libertarian
and became some kind of a classical liberty. Needed a
broader theory to take into account of a lot of
disturbing facts and arguments that you knew were correct, but
you couldn't explain within your own theory. And so I
went to college, and I was again extremely fortunate in
(07:23):
having good teachers in the way in which they did it.
And you know, I still remember instances the things that
happened sixty odd years ago which kind of shaped the
way in which I thought about all of this stuff.
I'll just give one of the instances right now. I
was a student of Earnest and Agel, and this was
in nineteen sixty two. I took a class in philosophy
(07:46):
of law, and the book that we read was just
that was Hla Heart the Concept of Law, And you know,
we sort of talked about it, and I was always
kind of troubled by it. I couldn't quite figure out
how we distinguished themselves even at that from Kelson, and
there's a story to that. And moreover, it turned out
that he tried.
Speaker 1 (08:05):
To do Oh Jesus, do law.
Speaker 2 (08:09):
He tried to do law. That was somebody calling me
if I don't want to answer. I tried to do
law as a kind of formal substance of inquiry, for
a formal inquiry where the substance of stuff was not
part of his essential commitment. And if you go to
the back of the book, he has a section on
the minimum content of natural law. And it's not so
minimal as I wrote about this some forty years later.
(08:30):
And he always tried to do what most sort of
Wastandian and English lawyers did, have a core of natural
law that they then cap into a very very narrow area.
And I didn't see how it was that that particular
system work. So even when I had Professor Nagel, I
was just deeply troubled about the lack of a synthetic
or agent by a teacher who himself was more of
(08:52):
a facts and circumstance man with respect to legal and
history than I would well. Anyhow, one of the seminal
events in my life was he thought well enough of
me as a student that he did something which was
largely unheard of it Columbia. He had me come to
a faculty workshop and just sit in the back of
the room. You have to remember at Columbia at that
time they were the offices. They were above the line,
(09:14):
and then there were the enlisted men down below the line,
and never the twain should meet. And he took me
this thing. It was a talk given by a logician
named Charlie Parson, whose father was Talcot Parsons, who was
very famous for the Structure of Social Action book which
I think was very important at the time, but in
retrospect kind of dated and outdated, I think in some sense.
And I'm sitting there listening to this and utter disbelief.
(09:36):
I can't believe how misguided the whole thing seemed to me.
And after over Nagel was just savage. He looked at
me and what he said was, I'm so annoyed. He said,
we managed to straighten these things out back in nineteen
thirty to nineteen thirty five, and the history of philosophy
since that time is unlearning what we saw. And so
(09:58):
I looked at him and said, what do you say?
And he told me he said, well, you didn't want
to go into philosophy. I said, don't know. He says, well,
if you could do what Paul Cohen did. He was
a famous logician who did one famous thing in his lifetime,
but it puts him with the immortals. And I said, no,
I don't want to prove the decidability theory. Indeed, I'm
taking a course with a man named Van Eenhort in
(10:20):
mathematical logics and I couldn't do the math. But somehow
or other, when I read when aslon'so Church wrote about
the ordinary language stuff. It just seemed to me to
be wrong. And I realized that that's where my peculiar
strength lit in figuring out how to do with verbal
translations and approximations of mathematical notions in a way they
try to preserve their intellectual integrity. So anyhow, well, it's
(10:43):
that's the second album.
Speaker 1 (10:44):
Yeah, we'll come back to.
Speaker 2 (10:46):
But what, so Nagel said. I said, I can't do
that stuff, And so he said, look, I have a
friend named Charlie Bradtell, and that's Charles Bridtell later became
a quite distinguished and thoughtful member of the New York
State Court of Appeal. And so for that I teach
a seminole with him over at the law school. And
as far as I'm concerned, you're better off going that
(11:07):
route than you are staying inside a philosophy department. And
so I thought about it, and I said, what he's
telling me is I can take the back channel and
get back into political philosophy without going through the degree. Now, Columbia,
this was a serious issue. One of the reasons why
you had the riot in nineteen sixty eight at Columbia. Well,
the obvious reason was that Columbia lost in the first
(11:28):
round of the NCAA Finals to Davidson. But the second
reason was that it ran on essentially a hierarchical structure
in which they had very low peons called instructors in
below that preceptors or something. And the basic theorem was,
if you had a students about ready to get his PhD,
don't read the thesis, so you could keep him in
(11:49):
line for another year. And so going to Columbia meant
that there was a whole cadre of instructors who would
deeply resent for the web in which they had been
exploited and abused with no realf And so when I
went to law school, I was past all of that stuff.
I did something which was completely unconventional. What I decided
to do was to go to Oxford, but to study
(12:12):
get yours.
Speaker 1 (12:13):
Let's take a quick step back and go back earlier
in time. So you're going through high school. You d
was a radiologist, were you? And obviously we're very right
precocious interested other things. Did you think in political terms
at that point? Were you? You said you kind of
started off as a libertarian. No, I mean did that
(12:35):
come later.
Speaker 2 (12:36):
As a theory? It came later. In fact, I first.
Speaker 1 (12:39):
Realized most Brooklyn Jews in that era would have been Communists.
No I was not, obviously you are not.
Speaker 2 (12:44):
No, they were new deal children in some sense, but
essentially the kind of defining adventures of that time were
much more pragmatic. It was Uncle Sammy and Uncle Albert,
and both of them had businesses in New York City,
and it turns out that they couldn't do business with
the labor union, and so one went to York, Pennsylvania,
(13:06):
the other one somewhere else outside the city Tolds Oklahoma,
I think in the part. And I began to realize
that somehow or other, this was not a sensible way
to do things. And then I asked reasons as to
why all this happened, And it was a combination of
unresponsive physical plan. These stores were on two levels, and
we were trying to run a production line. It doesn't work.
(13:26):
And then they were the constant political issues associated with
the union. So what happened is I was kind of
a skeptic rather than a libertarian. And I remember listening
to the nineteen sixty presidential election being shown like everybody
else by John F. Kennedy, but not quite persuaded by it,
so I wouldn't have called myself a Republican at that
particular point in time. I had read by that time
(13:48):
the stuff about Lock and Hume, but it wasn't quite
that I put all the dots together by the time
I got to college and started.
Speaker 1 (13:56):
Reading this the college about what you're.
Speaker 2 (13:58):
I ended nineteen sixty, went to Columbia. It's a shadow
of its former self. But when I went there, it
was a great place. And you know, what do you
remember while you go in there and have freshman orientation?
And the strategy of Columbia was to take all the
great professors and prayer in front of you, Gilbert High's
Modus Hatters and Jacques Barzone, whatever it was. And so
(14:19):
we had a book to read for the orientation period
called The Two Two Disciplined and so forth by E. P.
Snow And this was both a novelist on the one
hand and a scientist on the other. And the great
question that we had to ask is how you could
reconcile if at all the two kinds of expertises that
he had. Well, that's exactly the kind of question that
(14:39):
you want to ask when you're a freshman. It is
about political theory in some sense, but it's not about politics.
The politics, of course, was that John Kennedy lost to Nixon,
and there was an appropriate amount of horror and disappointment
in New York City about that. Remember, the Nixon of
the nineteen fifties was not regarded as an admirable figure
in many ways. Little dog checkers and so forth. Eisenhower
(15:02):
basically you didn't know whether he liked them, was just
acquiescing to him and so forth, And so that was it.
But I then started to take more serious courses, and
you know, I you know, it's all depending on your teachers.
I had a man who recently passed away named David
sed He was not a great scholar, but he was
a great teacher. You know what, do you think? I
could still remember his lectures on the Theatitis, which I
(15:24):
heard in the fall nineteen sixty two. And then we
read Discourse on the Message by Descartes, and then we
read the Ethics of G. E. Moore and so forth,
and these were important books.
Speaker 1 (15:35):
And you weren't studying economics during this period.
Speaker 2 (15:39):
No economics what so okay, but.
Speaker 1 (15:42):
You were going through here and then but eventually you
get directed towards law school.
Speaker 2 (15:47):
Yeah, well I could explain that too. It was, uh,
it was I was doing Polford.
Speaker 1 (15:54):
I'm sorry, I'll get.
Speaker 2 (15:56):
To that, and said, okay, but I mean there, know
what happened is when you were sitting there at that
particular age you have teachers were very powerful like Nagel
and Daniel Bell and so forth. Neither of them were economists,
and that was kind of the missing piece. I never
took an undergraduate course in economics. I did sit in
from time to time, and of course talk by William Vickery,
(16:17):
who won the Nobel Prize and died at the toll
booth going up to Massachusetts, so he could never claim it.
And it did have some influence on that, but that
was not essentially my dominant way of thinking about the
subject matter, and I didn't It's not that I was
hostile to economics. Essentially, I was not part of that
particular tradition. Well, then there was the question about where
(16:38):
I go to law school, and I had a very
distinct view about this subject. I said, if you want
to be an academic, you need a very broad base,
and I thought going to England and studying Roman law,
which was the right call and English legal history and
stuff would really make a big difference when I came
back to the United States.
Speaker 1 (16:56):
That was your idea, mine Roman and not directed by
somebody Columbia.
Speaker 2 (17:00):
And not only that, and not taking PPP in England. Right, Well,
I mean I'd want to go to law school. And
then I will tell you the conversation which still sticks
in my crawl mildly. So we have a pre law
session and the instructor from the law school came over
as a man named Monrad Paulson, Cadish and Paulson Right.
The criminal law gone, and people are starting to ask
(17:24):
questions about law school and this, that and the other thing.
And about three fourths away through the session, I raised
my hand and I asked the following question. I said,
if you want to become a law professor, what should
you do? Do you want me to quote the answer? Yes,
because it's word for word. It's only sixty one years ago.
He said, First you go to Harvard yal On, Columbia.
Then you finished first in your class. Then you become
(17:45):
editor in chief of the Law of You, then you
clerk for the Supreme Court. And then, young man, you
could ask me that question that is a direct quote.
I was absolutely polloxed by that. I couldn't believe that
anybody could be so dumb. All I wanted him to say, well,
read Oliver, when mahomes the Commons law. I mean, I
didn't want him to guarantee me admission. But what I realized,
(18:08):
strangely enough afterwards, is that's a formula for mediocrity. What
you really need to do is to be much more
independent and much more intellectual inventors. Finishing first in the
class may or may not matter. I did go to
Yale and to Oxford. I didn't clerk on the Supreme Court.
I barely made it onto the law of you. But
I was much more intellectually and general intellectually energized than
(18:30):
most of the people who had done those things. And
it turns out the real question about becoming an academic
is could you figure out how to make the transformation
from being a very dutiful and excellent student to being
somebody who's capable of doing original work. And that's the
lesson that became perfectly clear to me even when I
was asking him that question. And so I said to myself,
(18:51):
the last thing I want to do is to fit
into a formula way. All that I do proves that
I have earned the approval and adelation of my faculty
member want to see you. I could kind of strike
off on my own own way. And so what I
did is I did get a scholarship. It wasn't the Rose,
it wasn't the Marshal, it was a Kellor scholarship. So
(19:11):
I go for an interview for the Marshall scholarship, and
you know, I had a very strong record, and I
put down I will go to Oxford or I will
go to Cambridge the law school, when the instructions explicitly
said you could only put down one of the two,
and then you have to put down a white brick
or a red brick. So I go into the meeting
and they say, you know you're not allowed to do this.
I said, yes, I am, because I will not take
(19:32):
a Marshall scholarship if I have to do philosophy. Because
they had asked me whether i'd go to brit School,
which was a time an excellent department, I said no,
I don't care about the degree as much. I mean
they kind of looked at me kind of wonky. Why
is this guy basically killing his chances for the scholarship.
But it was because I knew I was going to
get a scholarship from Columbia and that would allow me
to study law. I didn't know whether I'd go to
(19:54):
Oxford at Cambridge, I ended up at Oriel College, Oxford,
and where I had the great fortune of having first
Alan Watson as a teacher who became kind of famous
as the Transformation guy, and then Bernard Rutt, and they
were my two major tutors, and I learned different things
from both of them. But the most important thing I've
learned was to figure out how to do law by yourself.
Speaker 1 (20:14):
Because that's the way they do it into.
Speaker 2 (20:15):
Yeah, as one on one tutorial. But it was a
very unusual set of circumstances because a I didn't know
what most Englishmen knew. But on the other hand, I
was taking a number of graduate courses in philosophy and
so forth, and so I had to take jurisprudence. Took
it with a man named John Ekolar, a young tutor
coming out of it was then Rhodesian to Pembroke College,
(20:36):
and we became kind of friends, and thirty years Await
and I talked to him. He said, I have to
tell you, every time you walked into my wolfice for
one of these toils, I really got a case of
the willies. I had never dealt with anybody like you,
but he had it. I mean it was you know,
we were the same age. I was maybe a year
younger than I am, but I had done graduate work
in philosophy, and he was just a very smart guy.
And it turned out he was a very distinguished scholar
(20:58):
and a fine gentleman. But it was a very atypical mix.
When you went there.
Speaker 1 (21:03):
Were any of these tutors experts in Roman.
Speaker 2 (21:06):
Law, or Watson was the Roman lawyer. But look, I
mean it started out. I can't begin to tell you
what a catastrophe it was. Because what happened is I
took the second course in Roman law. The first course
in Roman law was taught in the first examinations, which
was for two quarters. The second part was the seven
quarters of instruction, but the Americans had a cram it
(21:29):
into sixth so I had not had the first Roman
course when I took the second Roman court and the
high point of my first tutoria. This I remember because
of the hute embarrassment that it caught is we talked
about stipulations and accept the latios, and I thought an
accept the latrio was like an offer and acceptance. No,
and accept the lato is a release, as a kind
(21:50):
of a converse situation to the formation. And so there's
Professor Watson, very learning, looking at me and disbelieve how
anybody could mess up something so badly on this stuff.
And well, the reason I did it is I knew
a little Latin. I didn't know that. But what happened
is I got attracted to Roman law for reasons that
were not the reasons that our friend Watson had. Watson
(22:13):
was in in fact, a genius at one thing. He
did by far the best translation of the digest, I
mean all four violumes about that. And he had done
a huge amount of work on the history of Roman
law and the early Roman Republic that is roughly before
Caesar and Octavius and all the rest of that stuff
is what he knew. But he wasn't a structuralist. And
what you mean by that, I mean, well, I looked
(22:35):
at the Roman law and I said, well, why is
it that you have a rules for stipul audio, which
are unilateral contracts as opposed to US for sale, which
a bilateral contract, And why do you put that together?
And how do you put it together? And so forth?
Why do you have three different kinds of guarantees instead
of only one kind of guarantee? And why is it
that they don't allow you to bury the term?
Speaker 1 (22:55):
And he approached it.
Speaker 2 (22:57):
Historic matic and the dominant pattern Oxford at that time
was to make sure that you could detect an interpolation
in the text by getting a sense of the grammar
in the mood that was the nineteenth century writer. I mean,
those guys read Latin. They didn't read a foreign language.
They read Latin as well as they read English in
terms of everything they did. And so just as you
could pick up an awkwardness in an English text, they
(23:19):
could pick it up in a Latin text. But I
did not want to spend my time making sure that
the interpolations were correct. So the man who essentially inspired
the trans large if he was a man named David
Dowba and Dalbo was a German refugee. He came to there.
He'd written a very famous article on lyrics Equilia about
the word rit and fuitt is it pasted or is
(23:40):
it future? When you're talking about damages to animals that
are a lot. He was an exceptional tutor, not a tutor,
a lecturer. So I used to go to his lectures.
And I also went to Hla Heart's lectures at that time,
and the tradition at Oxford was professor's lecture. But you
can't talk, and so you just sit there and listen.
But that's okay, And you know they I had huge
influence on my life in terms of the way in
(24:02):
which it thought, but it was in a kind of
a different way. It was God, I think you did
great things, but there's something missing in all of this,
And I said, I couldn't quite get it. Dalbum is
more of a structuralist than Heart, but hard For example,
there were two things that I remember about his lectures.
Once he tried to apply the theory of causation that
(24:24):
works pretty well in towards case to the law of contract,
and he confessed he couldn't make any sense of it. Well,
why didn't he make sense of it? Because the dominant
issue is not contract. In contract, it's not causation. The
dominant issue in contract ex anti agreements to maximize joint welfare.
And what you do is you tend to allocate loss
is one way or another, but causation is strictly derivative
(24:47):
upon the way in which you allocate these losses. And
it turns out that the essential feature in contract law
for consequential damages is to figure out when the expectation
measure works and when it doesn't work. And nobody want
to talk about those issues. And it took me some
time to get past it when I realized that Heart
didn't quite understand it, and he didn't understand antitrust law
(25:08):
for the same kind of reasons, and so.
Speaker 1 (25:10):
Forth a Heart was substantively a criminal law.
Speaker 2 (25:13):
No, No, he was basically he did several things other
than yeah, well, he started off as a chancery barrister
in the nineteen thirties. He was born nineteen oh seven.
And what happened is he went into the service and
he was a code guide breaker, and so forth it
comes out and he wants to study law, and he's
now in his early forties and he writes a paper
(25:35):
for the Aristotarian Society on prescription and descriptive rights. The
paper's a complete intellectual mess, and he later repudiated it.
But the important thing is he had repudiated it for
the wrong reasons that he did not understand why the
paper was wrong, and what he tried to do was
a great mistake that often happens with philosophical times, which
(25:56):
is he thought that you could solve a lot of
problems by definition, when in fact what you have to
solve them is by substanti theory. And so the definition
of a contract it should not include all excusing and
justifying condition. What it is is very simply the definition
from Pothier, which carried over from the French to the
English world, is an agreement by two people to either
(26:18):
perform or abstain from some kind of an act period.
And the question about responsibility is solved in the following way.
If in fact there's non performance of a contract, that's
the premia facial evidence of breach. And what you discover
as you go through the English language, and it carries
over to every other known language as well, is you
have two sets of words. One is descriptive and the
(26:38):
other turns out to be ultimately judgmental. So non performance
is one word. The judgmental word is breach. Right, and
when you start dealing with torts, I mean it turns
out the first word is killed, but the justification word
is murdered. And what you have to do is to
figure out how these words pair up. And the only
way in which you compare the love is you have
(26:59):
to figure out how it is that you make them
move from one to the other. And you know how
you have crossw puzzles, right, and you replace a letter
on a chain and you get to the bottom of
it with a different word, hot, the cold or whatever
it turns out. Well, that's what you have to do.
And when I was fairly early on, I realized that
the notion of a presumption became the dominant intellectual tool,
(27:20):
and that none of these guys wanted to talk about
that as the way in which these things were done,
and so that the whole senterprise, to some extent, was
a mistake. The other thing that Heart got wrong, and
he was an interesting debate, was the difference between himself
and a man named Kelson. And now Hans Kelson is
widely forgotten today by most American. You've heard of him, right, Well.
Speaker 1 (27:41):
He talks about him alive, Yes, right, that's the reason
I know.
Speaker 2 (27:45):
But Kelson, he was a very important legal figure who
lived into his nineties. He started writing very early in
the twentieth century. He wrote his masterpiece on international law
in nineteen forty five, but earlier on he tried to
figure out what the pure authority of law was and
so forth and it and it was a kind of
(28:06):
definitional stuff. Yes, well, and he got it half right.
I mean, when he wanted to do what's laws, he says,
you look at a proposition, thou shalt not kill? Is
it law? Well, the answers and told, you know who
pronounced that? Lawyer, You don't know whether it's law. So
you go back to the sovereign problem. If it's a
sovereign who pronounces it, and then you need a rule
of recognition, and then it's a law. But in truing
(28:29):
it you always have to worry about the presumption side.
And he was more worried about the authentication side and
less worried about the interpretive side. And Heart basically wanted
to say his theory was radically different from that of
Austin and from that of Heart, and that was the
electure we got in nineteen sixty four. Nineteen sixty five
comes along and Heart, in the meantime had visited Kelson
(28:50):
at Berkeley, where he then was staying. He came back
and says, well, I have to tell those of you
who you last year, I made some very mysterious, serious
mistakes in the way in which I understood. And it
was extremely generous of a very eminent guy to come
forward and to talk about all those errors. And essentially
what happens is the two guys were much more convergent
than you might have otherwise had thought, and that the
(29:12):
differences between them really did not matter. It's a choice
of audience. And it turns out, yes, law is addressed
to officials, and yes laws addressed to the public. They
may respond to it in different ways. The public wants
to know the basic case and wants to stay out
of trouble, and the official has to know all the
ins and outs to deal with the hard cases of
adjudication before them. But they're both looking at the elephant
(29:34):
in a slightly different way. And it was very important
to listen to that and to learn from that. And
I only met hert once in my life, and I
was at a friend named Hobby Whiting w Eting who
had worked with him, and I was coming back from Oxford.
I guess it was in the summer of nineteen sixty
seven or sixty eight, by which time I was already teaching,
(29:55):
and I made the terrible not mistake, but observation. There
was a famous man called John Shipman Jack Gray, I
think you remember his name. Well. He did two things.
He wrote a book on the Rule against Perpetuities, with
its mathematical formulas, less mathematical than meets the eye when
you understand the number of accommodations they have to do
a non mathematical basis. And then he wrote another book
(30:16):
about the Nature and Sources of Law, which seemed to
me to be a book that was much more about
the evolution of law with a slightly open ended, somewhat
mostigious situation. So I mentioned at the hardness, and I
didn't see how these two books were easily reconciled. What
a mistake. For the next thirty minutes on that train
from Auxfory, all he did was to grow me with
(30:38):
an inch of my life. And I mean this was
his game, not my turf. I made it as an observation,
I wasn't making it as a commitment. But he took
it his stuff, and when he got onto a topic
he played win his keeps it didn't care who was
on the other side of that thing, And so I
got off of that chain more shaken intellectually than I
ever was. And then I don't know if you know this,
(31:00):
but I spent a large part of my career building
on the heart and honorary model of causation. But most
of the is finding it has very serious internal errors.
Speaker 1 (31:10):
So that starts with heart raising questions causation.
Speaker 2 (31:14):
Yes, yes, and lies, and I could still yeah. Well,
of course he never talked about the differences, but on
page three of the book he made one of the
more profound statements. He says, everybody wants to tell you
that causation is a matter of policy, and that seems
to derive it of any continent whatsoever. He says, I
will recognize that there are difficult cases, but I want
(31:36):
you to understand that they're recognizable cases, and that we
don't want to go to the two extremes of saying
it means nothing, it means everything. That was on page
three or something of the book. In nineteen fifty nine,
the last lectur he gave on the Nightmare in the
Noble Dream. I don't know if you know this, but
it was in Georgia. The nightmare is thinking you get
perfect precision, and the noble right, all right, as you
(31:58):
can't get any precision, and the noble dreamers you can
get it right. And so he was a guy who
was in the middle. Well, the moment you start talking
about presumptions, what happens is all of a sudden that
becomes perfectly clear that it has to be. What the
presumption does is it sets the first stage in an argument,
and it probably covers ninety percent of the cases you do.
(32:18):
And then the next level is a magnet orderitude down.
So what you find out is that the cases are
the greatest difficulty the cases of the lowest frequency, which
means in effect that you could decide them either way.
But so long as the rest of the body is
not upset by the way in which you treat cases
on the fourth brigadion, on the fourth marching order, the
system is going to worry coherent in practice, even though
(32:40):
in theory it's going to have these kind of loose
end And that sort of came to me at that time.
What happens is presumptions then lead you into figuring out
how you balance, and then once you start to figure
out how you have to balance. What it does is
it makes you much less less of a libertarian than
you were, because libertarians are always yes, no rules, not
balanced rules. But they tend to do that under a
(33:02):
very restrictive set of circumstances. Namely, they talk about these
kinds of circumstances whether tom is already caused, and the
issues whether you pay or don't pay. What they don't
talk about is you don't know whether it's going to
happen or not happen, and you cannot use that kind
of certitude. So what do you do? You do what
you do and what I do two kinds of errors,
(33:24):
ladies and gentlemen. Well, that means you have really estimation
problems of one kind or another. You don't get that
hard edged rule, but you do have a theory of
what you're trying to maximize and minimize. And that's enough
to make it into a theory. And so you have
to understand. Once you understand that point, what happens is
you don't become the crazy realist where anything starts to go.
So anyway, learning all that I think was extremely important.
Speaker 1 (33:46):
Well, it strikes me also you mentioned earlier when you
were very early on when you're talking about Isaiah Berlin
in that you were almost immediately attracted to the British
empiricist tradition, now you know, which is very much This
inclases me as well, And it sounds like many of
the same echoes, right, which is, for those of us
like you and I who love the common law and
(34:08):
are skeptical of sort of libertarian theorizing from first principles,
we are describing the way you thought about Roman law
structurally and asking these questions. It's very much of an application,
sort of the British empiricist tradition of let's see what
people are actually doing and figure it out, and hey,
(34:29):
it turns out there's kind of logic here.
Speaker 2 (34:31):
Yeah. Well, let me give you a kind of an
example of that. I mean about the libertarian situation. It
turns out if you are a contractual libertarian or promises
are enforceable independent of their content, all you have to
do is to prove that the conditions on defeasibility, mistake, frustration, coercion,
(34:53):
and so forth on't that? So then you get to
seventeen eleven and you read a case called Reynolds against Michell.
This is the case for the Audience, in which it
turns out the English court when they had a contract
for services, it said that you can prevent your employee
from going off and starting in competition. But there were
three conditions attached to that. It could only be for
(35:15):
a year, it could only be for the same products,
not new products, and only in the same location. The
quintessential balancing ta So I remember asking one of my students,
who just got a PhD in content, I said, what
would a continent say about the rules on restraint of trade?
He didn't know. I said. The first thing he didn't
(35:37):
know is in the libertarian system there is no subcategory
of contracts which are in restraint of trade. They're all
the same. And then you look at this English tradition
and it takes in seventeen eleven, but if you go
back you can see traces of it even further. You
go forward, you see nobody trying to erase it. You
see people trying to qualify.
Speaker 1 (35:57):
And when you look back in fourteen ninety two and
they struck down Covenant South the commuters, it was during
the guild.
Speaker 2 (36:03):
Ere Yeah, and that was and that's another problem.
Speaker 1 (36:06):
The common law has this ability to adapt to the
world around.
Speaker 2 (36:09):
And of course what the interesting thing is the judges
who did it. They were rum for a lot. They
couldn't quite give you a formal explanation, but they were
much more empirical in the sense they looked around at
the world and they said, this seems to us to
be a bit too much. And so with Roman law
and with the early English common law. My early intellectual development,
(36:31):
and it's still part of my law, is to say,
you've got a bunch of rules. They sit very awkwardly
with the libertarian tradition where's the deviation and when is
it right?
Speaker 1 (36:42):
And when is it coming back to that? For this
first session, I want to go ahead and get to
when you went to law school, you came back from Oxford,
you went to law scho.
Speaker 2 (36:50):
And went to Yale, and went to Yale. And now
that was a night. No, it was an interesting phenomenon, right.
First of all, I had left in nineteen sixty four
when the gold Water Campaign was up, and I could
still remember virtually everyone I knew at the time, perhaps
even myself, who said, if he becomes president of the
United States, the world is that and then and well
(37:11):
he lost pretty decisively and when I get back to
Oxality Yale, it's a completely different world from what it
was when I left in nineteen sixty four. The change
started in nineteen sixties. I'll go back to college just
for a little bit. What was the tradition for freshmen
coming into Columbia nineteen sixty We all wore blue beanies
(37:32):
for the first several weeks of classes, light blue with
a white sea on top of it, and you could
see us all over the campus when our beanies. The
next year, half the class warped. Bennis the thirty and
nobody wore beanies and so forth, and so that all
of the kind of collective traditions that you had committing
yourself to a common form of scholarship were essentially removed
(37:54):
from the way in which we worked. I didn't think
much of it at the time, but as I think
back to it, the beanie world was better than the
non beanie world, because what happened in nineteen sixty three,
people weren't wearing beanies anymore. They were wearing SDS flags
or things. I mean, they really were extremely assistant, and
you could watch this thing kind of disintegrate in front
of your eart. So you go off and you see
(38:16):
the Kennedy had just been killed. You see, come back
two years later and this is not just this is
now the dominant ethos at every place that you could find.
And well, it was very hard to fit in because
by that time I was a common law libertarian. That
is the way English education work is the only thing
(38:37):
you studied really was common law. You had one course
in an administrative law and this is basically what the
course works. It's different now in England is that the
courts do not interfere with Parliament or its committees. Very
short course that you had to have. And so I
remember somebody wrote a letter to the judges saying, I
(38:58):
think my examination, mister state of law was misgraded, and
I hope that you guys went to Visa corrected. And
the answer came back. The very fact that you have
brought this lawsuit proved to us that the grade was
fully justified. But that was the tradition, and my teacher,
it was a man named d G. T. Williams, who
was kind of a little bit out of that tradition. No,
(39:21):
he was at Keble College and then he later became
fairly distinguished guy at at Cambridge, he left Oxford, but
he sort of had some that the major issue was
a real estate issue, was a case called Steavenage, and
it had to do with the green belt that was
put abound London. I don't know if you know what
the green belt is, but you think of this as
(39:42):
Central Park going all the way around, and their massive
prohibitions against construction within the area. And so the question
is what kind of attack could you raised on the
green belt and think of this as kind of like
Euclid also, and the answer was only the pettiest of
procedural kinds of objections and the whole and continue to
go because everybody thought that the model of civil servants
(40:06):
with degrees in Latin and geometry were the people to
decide the fate of the union. So it was their
version of the German Research University, their version of Woodwroll
Wilson saying, we understand all these common low wolves are
just an impediment against us great mind. And you know
watching this and then by that time the system had
failed that you knew something was wrong. So I'll give
(40:28):
you another Oxford story.
Speaker 1 (40:31):
So they decided Bentham had won the debate with Bla.
Speaker 2 (40:34):
Well. It turned out they believed the same thing. If
you actually go back, both of them believed that the
permanence of possession was one of the most critical issues.
And they but yeah, but they didn't even have different
method and neither of them had a method a method.
But essentially the Roman proposition that they had to debate
was how do you retain possession? And the Romans got
(40:57):
the right answer that question. We tell you how you
why a possession, we tell you how you lose possession,
but we don't tell you how you keep possession because
you don't have to do anything to keep possession. So
essentially what happens is if you put something in your
house and go out and lock the door, it's not
within your hands, but it's within your possession until somebody
(41:17):
breaks in and takes the thing down. And so what
they did is they solved the problem in that way.
And both of them believe that you had to have
that rule because otherwise you couldn't put anything down and
go outn't hunt for anything else. That was a straight
utilitarian justification. And you go back and you read the
Roman text, they're not quite there, but they very much
(41:37):
understand why it is that the stability of possession becomes critical,
which is why possession, it's one of the great problems
of the early common law, extremely often talked about in
one faster or another. And of course, who is a
trained in Roman law? David Hume.
Speaker 1 (41:54):
He's a Scotsman right.
Speaker 2 (41:57):
And he basically the term that he uses when he
talks about property is the stability of possession and he
got it straight out of the Roman sources on which
you rely.
Speaker 1 (42:06):
So that's almost out of time for this session, so
just give us a few minutes and tell us what
you're You said you came back from Oxford, the universities
had changed. What was your experience like A yehe.
Speaker 2 (42:17):
Well, I was the only guy who knew COmON law
in the whole play, and this was regarded as a
kind of a demerit. And I was not on the
law Inview because that had been established, so it was
always a kind of an outside of that institution. And
then I basically had to get into teaching, and a
man named George Lefko comes through. George was very determined
(42:40):
not to interview anybody, so he only put up a
sign in the Law Review office. I signed it on eleventh.
Tom Gray whom you know was number ten. Tom says,
I got a job at Stanford Aray, so you take
the end. And God was kind to me.
Speaker 1 (42:54):
So straight out of law school you interviewed for.
Speaker 2 (42:57):
Well, I was in my third year and what happened
is leftgo comes in. He was from dark and it's
supposed to be a twenty minute interview and it lasted
for three hours because it was nobody behind me. I
kept chasing after George, and George kept chasing after me,
and it was a brawl and he just said, well,
you're coming out obviously to interview. Then I went out
(43:19):
there to interview, and essentially a USC it's the only
interview I had. UCLA had scheduled me and then said
you're too mature the matter. That probably were right, and
so I did essentially a thirteen hour stint and it
ended in the topless bar, a different environment and so far.
(43:40):
But it was just non stop to and that's my
metier right. There were no papers, no presentation. Dorothy Nelson
asked me if I knew something about the freeway system.
I said, well, Dorothy, I figured out what the basic
organization was and then described the grid and that kind
of pleased her in some sense. And I can still
remember Dorothy had a rare out of putting her foot
(44:00):
in her mouth when she meant well. So I'm just
going to read one sentence from the acceptance letter that
I got three days later. I'm out on a Thursday.
On the Tuesday, I get the letter, and I says, dear,
Professor Epstein, that should have been a hint, right, yes,
but I didn't. And she opens it up. She said, dear,
I was so glad to meet you last week in
Los Angeles. I regret. Oh my god, that regret basically
(44:21):
still sticks in my cass. What do you regret that
I didn't have more time to spend it? I mean?
And then I got an offer, and off we went
to USC And at that point it's my general academic
development as a transition. I will just say one thing.
My late and dear friend Michael Levine and I went
out to lunch the first day I got there with
(44:41):
a man named Lou Brown and Ronald and Michael talked
about a man named Coas.
Speaker 1 (44:48):
Man named Coas.
Speaker 2 (44:49):
I said, oh, sounds interesting, and Lou Brown said, look,
it's important not to make erics. It's important to prevent them,
and so it's Christmas Pants and Christmas Future was sitting
at the same table on the same day.
Speaker 1 (45:02):
Well, that sounds like a great place to stop with
this episode and we can pick up with part two
and learn more about your early career at USC and
then moving to Chicago and your intellectual development from there.
So we'll look forward to part two. The interview with
(45:23):
Richard Epstein
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