Richard A. Epstein

Richard A. Epstein is the inaugural Laurence A Tisch Professor of Law at NYU Law School. Prior to his joining the faculty, he was a visiting law professor at NYU from 2007 through 2009, when he was the James Parker Hall Distinguished Service Professor of Law at the University of Chicago. Epstein also has served as the Peter and Kirstin Bedford Senior Fellow at the Hoover Institution since 2000. His initial law school appointment was at the University of Southern California from 1968 to 1972. Epstein received an LL.D., h.c. from the University of Ghent, 2003. He has been a member of the American Academy of Arts and Sciences since 1985 and has been a Senior Fellow of the Center for Clinical Medical Ethics at the University of Chicago Medical School, also since 1983. He served as editor of the Journal of Legal Studies from 1981 to 1991, and of the Journal of Law and Economics from 1991-2001, From 2001 to 2010 he was a director of the John M. Olin Program in Law and Economics at the University of Chicago. His books include The Case Against the Employee Free Choice Act (Hoover 2009); Supreme Neglect: How to Revive the Constitutional Protection of Property Rights (Oxford 2008); Antitrust Decrees in Theory and Practice: Why Less is More (AEI 2007); Overdose: How Excessive Government Regulation Stifles Pharmaceutical Innovation (Yale University Press. 2006); How Progressives Rewrote the Constitution (Cato 2006). Cases and Materials on Torts (Aspen Law & Business; 8th ed. 2004); Skepticism and Freedom: A Modern Case for Classical Liberalism (University of Chicago, 2003): Torts (Aspen Law & Business 1999); Principles for a Free Society: Reconciling Individual Liberty with the Common Good (Perseus Books, 1998): Mortal Peril: Our Inalienable Rights to Health Care (Addison-Wesley, 1997); Simple Rules for a Complex World (Harvard, 1995); Bargaining With the State (Princeton, 1993); Forbidden Grounds: The Case Against Employment Discrimination Laws (Harvard, 1992); Takings: Private Property and the Power of Eminent Domain (Harvard, 1985); and Modern Products Liability Law (Greenwood Press, 1980). He has also edited Cases and Materials on the Law of Torts (9th edition 2008). He is presently at work on books dealing with the Private Property and the Rule of Law, and Classical Liberal Constitutionalism.

Long-Term and Short-Term Analysis in Constitutional Law and the Health Care Decision

July 3, 2012

Every important legal decision has two key dimensions. The first is the outcome in the individual case, and the second is as a precedent for future development.  There are, in practice, very few cases that have both long and short term consequences, and in many of these they tend to cut the same way.  The short term decision in Brown v. Board of Education had dramatic impact on the system of segregated schools in the South.  Its long term effect was to solidify the elimination of an elaborate interlocking set of institutions that had developed since Plessy v. Ferguson had been decided in 1896.

In other cases, the long and short-term consequences cut in different directions.  In the great New Deal cases, Chief Justice Charles Evans Hughes thought that he had defused an immediate political crisis by sustaining both the National Labor Relations Act against challenges under the commerce clause in NLRB v. Jones & Laughlin Steel, and a minimum wage law for women only in West Coast Hotel v. Parrish, both by 5-to-4 votes. The short term peace brought with it long term dislocations.  The expected life of the NLRA and the minimum wage is very long indeed, and shows no sign of coming to an end.  The resource misallocations of both statutes are enormous.  I have no doubt that the Supreme Court would have survived any challenge to its legitimacy if it had followed previous precedents. Its legitimacy had not come to an end when it had ruled against the Roosevelt administration only two years before.

The same, I fear, is true with respect to the Affordable Care Act. Read More »