Epstein's Takings: An Appreciation

'Takings' nothing for granted
Jeremy Crimmins
Chicago Daily Law Bulletin
November 25, 2005

After he became a law professor in 1968, it took Richard A. Epstein at least two years to get anything published because "it's tricky," he said. Not to mention the distractions.

"There was a lot of instability" at the University of Southern California where he first taught, Epstein said. The dean shut down the university for a while due to continual student protests.

By Epstein's third year of teaching, he started to get the hang of writing.

Since then, Epstein has published 19 books, nearly 270 law review articles, 84 magazine and newspaper pieces and a several dozen other works.

Of all these, one work stands out: "Takings: Private Property and the Power of Eminent Domain."

Published by Harvard University Press in 1985, the book was "almost universally" condemned by law professors, said Eric A. Kades, a professor at William & Mary School of Law.

Epstein, now at the University of Chicago Law School, echoed that view: the book was "widely reviled when it came out."

Nevertheless, "Takings" has since been cited by the U.S. Supreme Court in four property rights cases, Kades noted.

"Not only does the Supreme Court cite him," Kades said, "but his work has clearly influenced the court, perhaps most clearly in Lucas v. South Carolina Coastal Council," 505 U.S. 1003 (1992).

Twenty years later, Epstein's 1985 book and his body of work on property rights led the William & Mary School of Law to give Epstein the school's 2005 Brigham-Kanner Prize this fall.

The prize is given to recognize the recipient's lifetime of contributions to protecting property rights and advancing those constitutional rights.

Despite the initial condemnation of Epstein's book by the legal academy, "Takings" was an "instant classic ... a must-read ... cited on both sides of the aisle," Kades related.

"The academy is very liberal. He's very conservative," Kades continued, explaining why law professors' original reviews were "almost universally condemnatory."

"Liberals generally believe the state has wide powers to regulate private property," according to Kades. "Conservatives generally believe property owners have wide rights to be free of government regulations of their land use."

Epstein fondly remembered the 1991 U.S. Senate hearings to confirm Clarence Thomas to sit on the Supreme Court -- and the cameo appearance by "Takings."

"It did not start as a debate over Anita Hill," Epstein said. "It started with a debate over natural law and property rights."

Epstein recalled that Sen. Joseph R. Biden Jr., D-Del., showed Epstein's book to Thomas "and wanted him to confirm or disavow this book."

If Thomas had approved of the book, it would have given his opponents reason to reject him, Epstein related, but "Thomas did the right thing and avoided the question."

"When I wrote the book, I had never taught constitutional law," Epstein stated. He said he had done a lot of work with property law and nuisances.

He said he wanted to learn whether the Constitution laid down a difference between property disputes involving individuals and property disputes between the government and a citizen.

"Eventually, I concluded it did not," Epstein said.

In Kades' summation, Epstein's "fundamental axiom ... is that the government's power to regulate is no greater than private citizens' power to assert common-law remedies against each other."

The book, Epstein said, also questioned the legality of New Deal legislation.

"It was a thorough, unrelenting, all-guns-blazing attack on the received wisdom," Epstein said.

But his defense of property rights, he said, was "not meant to be a defense of privilege but a defense of a series of social institutions."

"Where we find eminent domain abuse in most cases is powerful people going to government to condemn land owned by their neighbors to build parking lots" and other commercial uses, Epstein asserted.

Epstein says, as expected, that the Supreme Court recent decision in Kelo v. City of New London, No. 04-108 (June 23, 2005), in holding that New London, Conn., could take citizens' homes in the name of urban planning was "dreadful."

Kades estimated that Epstein's many writings have been cited by other authors about 6,500 times.

"He's one of the giants of the field, one of the very top property scholars of the last 50 years," Kades said.

Yet when Epstein was asked what his focus is, he said, "I don't specialize in anything."

He has taught courses in civil procedure, communications, constitutional law, contracts, corporations, criminal law, health law and policy, legal history, labor law, land use planning, patents, taxes, Roman law, torts, and workers' compensation.

He has written about most of those things, too.

"People ask me, How do you know what you want to write? I haven't the slightest idea," Epstein said. "Somebody suggests a topic. You read, you talk, you listen ... until it all comes pouring out of your head in a relatively organized fashion."

Copyright 2005 Law Bulletin Publishing Company

Richard A. Epstein