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Richard Epstein

9 min read

Richard Epstein is a law professor and a recurring guest on The Bob Zadek Show. In the excerpts, he is identified as a professor of law at NYU School of Law, a senior fellow at the Hoover Institution, and a senior lecturer at the University of Chicago; he is also described as founding and heading the Classical Liberal Institute at NYU California Passes the Worst Piece of Legislation Since AB 5 (2023). Bob Zadek introduces him as having a trained scientific background and as schooled in economics Richard Epstein on Climate Change (2017). Across the episodes he appears as a guest on free trade, climate change, sexual harassment law, animal-welfare regulation, and California labor legislation.

Free trade

In a discussion of foreign trade, Bob Zadek and Epstein examined the economic principles of foreign trade and challenged common misconceptions about fair trade and trade deficits. The episode description states that they explored mutual gain, specialization, and comparative advantage, and explained why free trade benefits all parties involved despite political rhetoric to the contrary Trump Vs. Free Trade with Richard Epstein (2017). The excerpt does not record Epstein’s specific formulations on these points.

Climate change

Epstein’s climate-change episode is the most fully transcribed of the excerpts. He began by arguing that climate change has always been with us and can be found across any time span one chooses, from decades to millennia, and that the system is highly variable yet never spins out of control, since otherwise organic life would have collapsed Richard Epstein on Climate Change (2017). He offered a visual analogy of a small sphere inside a larger one: displaced to the side, it returns to the bottom, a stable system; perched on top, it tumbles. He said there has to be a huge amount of resilience built into the system.

He then turned to human impact, saying our ability to manufacture, build dams, and conduct chemical experiments means we can affect the environment as no other species can, though nothing we do would resemble the meteor that struck the Yucatan about 65 million years ago or be as dramatic as Mount Saint Helens. He noted that carbon dioxide distributes itself uniformly throughout the earth no matter where it is released, which he said makes it a global problem in the context of the Paris Accords, whereas water vapor tends to concentrate in some areas and not others. He identified water vapor as perhaps the single most important greenhouse gas and said it is very difficult for anybody to do anything about it.

Epstein’s conclusion was that given the welter of other forces and the up-and-down quality of temperature movement, carbon dioxide cannot be thought of as the dominant player. He said this makes him, in the eyes of many, a denier — a word he called peculiarly ugly and designed to evoke images of the Holocaust denier — whereas on his own view it makes him a mild skeptic or a lukewarm-er, accepting a weak positive connection between atmospheric carbon dioxide and temperature with the stress on weak. He described the debate as one of attitude, with one side calling the other alarmist and the other calling the one side deniers, and framed the correct scientific questions as, first, what impact carbon dioxide has on temperature changes and, second, what other influences belong in the mix.

The episode description adds that the two critiqued the Paris Climate Accord as a wealth transfer mechanism and explored benefits of carbon dioxide such as global greening, advocating technological progress over alarmist policy Richard Epstein on Climate Change (2017).

Sexual harassment law

In a later episode, Epstein traced sexual harassment law to the employment discrimination provisions of the Civil Rights Act of 1964, noting that the inclusion of sex alongside race was proposed by a Southerner, Howard Smith, and that some thought putting the two together would sink the whole bill while others say Smith actually believed in it An Intellectual Discussion of Sexual Harassment with Richard Epstein (2018). He said that if one scours the record of the 1964 Act, there is not a word mentioned of sexual harassment, and attributed the transformation of the material more to Catharine MacKinnon’s 1978 book Sexual Harassment of Working Women, which claimed workplace harassment should be treated as a form of sex discrimination having to do with conditions of employment.

Epstein said he criticized that position as a technical matter — not because he favors sexual harassment, but because the issue is not one of discrimination: men may harass men and women, or women may harass men and women. He located the real issue in the near-close association between harassment and assault, traditionally covered by common law doctrines of intentional infliction of emotional distress rather than sexual discrimination laws. He described the Supreme Court later adopting MacKinnon’s position and developing two kinds of relationships, quid pro quo and hostile environment, and said the Court was chary and cautious, wanting relatively high thresholds. He then described the bar being lowered as the matter became administrative, most notably through the Dear Colleague letters written by the Office of Civil Rights in 2011, with institutional responsibilities extending to apparatus put in place before cases occur. He noted that Betsy DeVos and the Office of Civil Rights removed the 2011 letter, saying they would rethink the thing from the ground up. He also observed that Title IX, passed in 1971, dealt with institutions receiving government aid, and that even if all the decisions were overruled there would be an enormous push to put these things right back into the bill, which would pass virtually unanimously tomorrow.

Regulation and the Dormant Commerce Clause

Two later episodes concern state regulation. In one, Bob Zadek and Epstein discussed the constitutional implications of California’s Proposition 12, which regulates the living conditions of pigs raised for pork sold in the state; the description names the Dormant Commerce Clause, the potential for extraterritorial regulation, and the challenge brought by pork producers, National Pork Producers Council v. Ross, and how the Supreme Court might rule California’s Food Fight (2022). The excerpt does not record Epstein’s arguments.

In the other, Zadek introduced Epstein as the ideal guest to discuss the newly enacted California FAST Recovery Act, which Zadek described as seeking to socialize the entire California fast food industry by putting it under strict governmental control, adding that other states are looking with curiosity and perhaps envy at what California has done California Passes the Worst Piece of Legislation Since AB 5 (2023). Zadek identified the act as an acronym for the Fast Food Accountability and Standards Recovery Act and said it seeks to capture the entire fast-food industry and bring it under tight governmental control. Epstein replied that the statute is indeed a fast one, that what it purports to do is much more modest than it turns out if one reads the details, and that it first makes a series of findings about systematic forms of abuse inside the fast-food industry — which he called de rigueur for any effort to impose regulation, because you have to have a villain in order to regulate. He noted that the findings give no particulars as to why the particular act is actually curing something; the excerpt breaks off there.

Across episodes

The excerpts show Epstein appearing across multiple episodes on distinct subjects rather than the same question argued twice. The one thread that recurs is climate: the 2017 climate episode is referenced in a 2019 episode, where the host notes that a show with Epstein particularly looks at the cost-benefit analysis of climate change, and where a caller, Mark Joffe, discusses carbon taxes and cap-and-trade as ways to price emissions, saying there is a lot of religion and not as much science as one might like in the climate change debate Not Enough Bricks (2019). The excerpts do not show Epstein himself revisiting the topic, so no development in his position can be traced.

What the sources do not cover

The excerpts do not give Epstein’s date or place of birth, his full academic history, or the titles of his books beyond the reference to MacKinnon’s work. They do not record his specific arguments in the free trade, Proposition 12, or FAST Act episodes, which survive only as descriptions and, in the last case, a fragment that breaks off mid-sentence. No excerpt states the outcome of National Pork Producers Council v. Ross or the provisions of Proposition 12 beyond its subject matter.

Episodes

9 appearances, 2017–2023.

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