Interview with Richard Epstein
Contents
Richard Epstein is the Laurence A. Tisch Professor of Law at New York University School of Law, the Peter and Kirsten Bedford Senior Fellow at Stanford University, and the James Parker Hall Distinguished Service Professor of Law Emeritus and Senior Lecturer at the University of Chicago.
Basketball with Professor Obama
Max Raskin: I want to start with growing up in Brooklyn. Were you a Dodgers fan?
Richard Epstein: No, sadly. This was the sign of my contrarian nature. I was a Yankee fan in Brooklyn when at the time it was required by the neighborhood to be a Brooklyn fan. And my allegiance had nothing to do with large geopolitical issues. It had to do with a brief exchange with my nine-year old neighbor Stevie Munzer in 1949. I liked the Yankee uniform, and he says to me, “What do you know about baseball? What’s a balk?” I didn’t know, and he just sneered at me. Since a Dodger fan could be so crude, I became a Yankee fan.
I didn't dislike the Dodgers though. It was a team, in retrospect, which one can only admire given its great continuity in the late 1940s until it left Brooklyn at the end of the 1957 season.
MR: Did you go to games?
RE: Rarely. I could still remember my father took me for my 10th birthday to the Yankee game to watch. It was the Yankees against the Washington Senators, and it was Eddie Lopat against Bob Porterfield and the Yankees won 4-1. My father couldn't wait to get home. He was not a particular sports fan.
MR: What about basketball? I know you play.
RE: Well, I’m pushing 78 and I’ve had a bunch of surgeries, which essentially make it ill-advised to play basketball. I occasionally shoot, but not too much. But I played a lot when I was younger.
How would I describe my rare package of skills? I was too slow to be a guard, too short to be a forward, and don't even think about being a center. You put all those things together, it's clear that I was destined in serious competition to be an earnest benchwarmer.
MR: How about at the University of Chicago? Did you play with anyone interesting? What about Hayek?
RE: Hayek was born in 1899, he died in 1992. I joined the Chicago game, organized out of the hospital by its then-President Ralph Muller, in 1992.
I did play with Barack Obama – to be precise, in 2001. His closest friend was a man named Martin Nesbitt. Marty is still his closest friend. Marty was for many years my neighbor on Woodlawn Avenue, and our driveways were next to one another. I used to see Barack at Marty's house from time to time, and I would talk to him at parties. Marty had a 40th birthday party in which we played basketball in 2001. We also played with a man named Arne Duncan, who later was Obama’s Secretary of Education. He was a professional basketball player, good enough to be looked at by the NBA and good enough to play very well in the Australian league.
MR: What was it like playing basketball with Obama?
RE: The guy liked to shoot, but he was a very good teammate. Anybody who ever met him realized that in every way he had just extraordinary charisma.
The funny story about him involves Michael McConnell. Michael published an article with the Harvard Law Review, where Obama had become president. Michael was very impressed with Obama. Michael calls then-Dean Geoffrey Stone and suggests he reach out to Obama about coming to teach at the University of Chicago Law School. Obama comes in, and as he leaves, Stone’s secretary says, “I do believe that man will become Governor of Illinois someday.” Of such anecdotes, history is made.
MR: What was Obama like at Chicago?
RE: Nobody got to know Barack very well because he was always a mysterious figure. He came in on a Monday morning, taught on a Friday afternoon. He never came to lunches or to workshops of any sort. Occasionally, you might see him going in and out of the hallways to the parking lot.
Sitting Down to Write
MR: How do you like to read? Digitally? Hard copies?
RE: I tend to read online and then books. I don't read for pleasure very much, because I read so much for work. When I research, I read by tracking down my preconceptions. I’ll have to find something, so, I'll find it, get my quote, and then go back to my narrative. It's only on vacations that I'll take out a novel or autobiography.
MR: What’s the last book you read for pleasure?
RE: The last serious book that I read was Andrew Roberts’ biography of Winston Churchill, which was a great book, over 900 pages.
MR: Do you have a favorite piece of literature?
RE: I think the one that I liked reading best, and not only as a kid, but when I read it to my son –is David Copperfield. I’m still very touched by it.
MR: What about it?
RE: It's the sweep of the story that captures you, and the variety of characters that it embodies. As some very astute critic said, there’s only one boring character in David Copperfield, and that is David Copperfield. It’s obvious, D.C. – C.D., that he's talking about himself. In the most metaphorical sense, it’s biographical. But the cavalcade of characters that he puts into that panorama is memorable – Murdstone & Grinby, Steerforth, Emily, Peggotty, Barkis, Micawber, Uriah Heep. It is just an amazing story.
MR: Do you like art?
RE: My wife and I are collectors. The period in which we've collected the most is the period of basically between 1920-something and 1950-something. And mainly kind of realist art – often from the Midwest.
MR: Do you have a favorite artist?
RE: Oh, God. I'm not a “favorite” guy. If I did have one, it would be such a mundane choice. Picasso – the man is an unquestioned genius. Vermeer is from a different period, and the ability to put composition together in light and dark in a way that nobody else could match. Rembrandt for portraits. Monet, in his early period – I’m not a fan of the water lilies – is really quite something. A collection with a little coherence is better than one with not. You have to pick a period in which the artists are both good on the one hand and affordable on the other. We have a wonderful Clyde Singer – the individualist in our living room.
MR: Do you have any rituals before you start writing?
RE: Yes – sitting down. The way in which I write is the way I've always written. I'm writing in my head all the time, thinking in the background. You never start fresh. You figure out where you left off, go back 500 words, edit it, and then just keep on going. And then you go back to the beginning. There is no such thing today as a distinct draft, just revolving text.
MR: Do you write outlines before you begin writing?
RE: God forbid. I don't know how to write an outline.
MR: Who is the biggest influence on your writing?
RE: The one that comes to mind immediately is F.W. Maitland. But it is impossible to imitate him, so admiration will have to do.
MR: Do you listen to music when you write?
RE: Sometimes yes, sometimes no. Classical music almost always, if I'm writing. The mode composer would probably be Mozart, coupled with very large doses of Bach, Schubert, Beethoven, Schumann, Dvořák.
MR: Do you have a favorite composition?
RE: I have a bunch of them. I've always been partial to some of the great Mozart concertos – No. 20 in D minor and 21 in C major. The piece I've listened to most lately, oddly enough, has been the Linz Symphony in C major K. 425, regarded as a great but not the greatest Mozart.
MR: Do you have any hobbies other than the law?
RE: Doing crossword puzzles, playing chess, occasionally. I do the numeric puzzles, the KenKen puzzle. I regard those as kind of mental exercises that are designed to keep you going on a technical level. Because when you reach my age, and you have been doing your entire career, for 53 years, as an academic, you always have the question – have you started to slow down? So far, I don't think so.
MR: I don’t think so either. How do you stay hip?
RE: Well, in normal times, you never miss lunch with colleagues and friends. And it doesn't matter whom you are having lunch with. You always have lunch with somebody. And if possible, you talk to them as much about their work as you do about your work.
Friendly, Bramwell, and Hand
MR: Did you know Judge Friendly?
RE: I was a third-year student at the Yale Law School. I get a call to interview with Judge Friendly for a potential clerkship, which I would say I half got. He was, to put it mildly, a very impressive man. Bruce Ackerman, who was actually clerking for him at that time, intimated that he might be interested in the clerkship position for me. But by that time, I already had a teaching position at the University of Southern California. At age 25, the draft was looming over my head, so I took the USC position with some degree of relief. It was also a very ambiguous time in the job market, because the year before, the Supreme Court hired directly out of law school. My year was a kind of an evolution of a custom in a two- or three-year period.
MR: Who's someone who should have been on the Supreme Court that never was?
RE: The obvious name is Learned Hand.
MR: Throughout history is there a judge that you would have liked to have clerk for?
RE: There's so many great judges. Baron Bramwell has always been my favorite English judge. He was a pretty consistent libertarian. I even wrote a long article on Bramwell’s opinions.
MR: Do you feel like a grandfather of certain lineages of judges and clerks and students?
RE: Yes. The number of former students I've helped with clerkships or academic positions – dozens upon dozens of them are judges as well. [Michael] McConnell became a judge. Naomi Rao turns out to be a judge. I never picked students to mentor – students come in, they pick me.
You’re like that, right? Do you remember how you met Judge Preska?
MR: Of course. I was sitting next to her a dinner you hosted at the law school.
Do you remember the Federalist Society gala in Union Station a few years ago? When you got up there to give the keynote. What was your line?
RE: Mitch McConnell is great at getting people in the pipeline through the pipeline. My job is to make sure that there are people to go into the pipeline.
MR: Do you get an emotional feeling when you're in a room with so many people whose lives you were somehow instrumental in?
RE: Yeah. There were 2,000 people in that room. I would guess probably 150 or 200 were my students, including maybe 50 students in my Roman law class. I’m including two on the platform – Noel Francisco and David McIntosh.
What’s Your Erdős Number?
MR: What’s the first thing you read in the morning?
RE: Usually it's a cross between the New York Times, which I hold my nose on the editorial page, and the Wall Street Journal, where my reactions are much more mixed.
MR: Do you read it in print?
RE: I do both. Sometimes at night, I will read the Journal online and then in the morning, I will read the Times first, so my wife can read it when she gets up.
MR: Do you use a tablet?
RE: No. I use the computer.
MR: Do you nap?
RE: Yes. Absolutely.
MR: How long? How often?
RE: Well, depends. If I sleep badly the night before, I'll take a nap. If I know I'd have to do something on a demanding basis, I may just take a nice, prophylactic nap so that I am going to be ready?
MR: How long will you nap for?
RE: Usually between 10 and 30 minutes. Sometimes on weekends – usually a Saturday – after having gone full tilt during the week, I will take an hour and a half nap in the afternoon. Unless I'm with my grandchildren – then you get no nap.
MR: What do you have for breakfast?
RE: A bowl of Cheerios with fruit and a piece of toast. Not every day, but 80% of the time.
MR: You’re related to the comedian Paul Reiser.
RE: Yes, my first cousin.
MR: Do you have a favorite comedian? I shouldn't keep asking these favorite questions. But do you have one?
RE: The comedian with whom I have the greatest rapport apart from Paul, maybe even including Paul, is Sam Levenson, who was a Jewish schoolteacher turned comedian. As a boy growing up, he lived at 1380 Union Street, and I lived at 1398. I was friends with his son Connie Levenson.
MR: Do you know your Erdős number?
RE: Mine is 2, I'm sure. One of my good friends for many years was a man named Saunders Mac Lane who was a world class mathematician. I published a paper with him on age discrimination law.
MR: Chicago pizza or New York pizza?
RE: I’m a flat pizza man.
MR: How do you like your hot dogs?
RE: I like a little bit of lettuce and tomato on them.
MR: On your hot dogs?
RE: Yes, I'm an iconoclast.
MR: I’m not talking about hamburgers; I mean hot dogs.
RE: Yes. You heard it right. Look, I'm a damn Yankee fan in Brooklyn. I put that stuff on it, maybe a little onion. I don't like mustard.
MR: Obama famously said that it’s unacceptable to put ketchup on a hot dog after the age of 8.
RE: Yes, I don’t like it either. And I love tomato. So, it turns out that we basically had deep unifying factors to bind us together.
My Kind of Town (Chicago Is)
MR: Let me ask you one thing about Judaism. Did you ever practice?
RE: Well, I took my bar mitzvah, I can give you the first line of my Haftorah. It was in Isaiah.
MR: Do you believe in God?
RE: No, not really. But my rabbis – half of them were atheists. To me, Judaism has always been a set of cultural commitments. And to the extent that those commitments agree with my value structure, I do it. There are large portions of Jews who don't follow these things. Social justice is a very dangerous wagon to ride on – it often it leads to injustice.
MR: Do you have any Jewish songs you remember that you like?
RE: [Sings “Hevenu Shalom Aleichem”].
MR: Which city do you feel more allegiance to: New York or Chicago?
RE: I would think for most of my life it was Chicago, because I was at the University of Chicago. But as we tend to move east, it's not as though I feel allegiance to New York, but I certainly spend almost as much time here as there.
MR: Are you a New Yorker?
RE: Oh, I'm not a Chicagoan. I'm still a New Yorker. That's based on Richard Epstein, before I was 21, I spent 11 years in Brooklyn, six years in Great Neck, and four years at Columbia College.
MR: Is there anything you miss from old New York?
RE: I liked old New York when I was on the streets of Brooklyn in 1953. I miss the public schools, including my own P.S. 161, where I went from 1948 to 1954. I thought there was a kind of a density of life in New York City that was really very exciting. A lot of intellectual ability. Brooklyn was a hotbed of very strong talent. Even growing up there you kind of understood that it was a sort of a special place. In 1977, I went out to the Center for Advanced Study in the Behavioral Sciences at Stanford. There were 50 fellows there and seven of them were from Brooklyn. And then most of them were born within four or five years of one another. Six were Jewish, one was not. I always was blessed with being in environments with a very large number of very gifted people.
MR: What about academic institutions? Are you a Yale man? A Chicago guy?
RE: I’d have to say Chicago. I went to Yale as a transfer student in the second year from Oxford. The deep friendships were often formed during the first year.