Epstein & IJ: Teaming Up for Liberty

February 2000

Epstein & IJ: Teaming Up for Liberty

By Richard A. Epstein

In 1987, Chip Mellor told me he and Clint Bolick intended to develop strategic litigation blueprints for public interest law. I thought it a worthy idea and agreed to lend a hand where possible. I was not sure what would come of their effort, but was delighted when it led to the founding of the Institute for Justice in 1991. I have been happily involved in the affairs of IJ since then, and regard it as one of the most rewarding and pleasant associations of my entire professional career.

To some people, our close working relationship might seem to be an odd marriage of the academic and the practical. The demands of academic work require a certain degree of objectivity and detachment that are inevitably compromised by an active engagement in litigation and public affairs. But equally great forces tug in the opposite direction. No one doubts that the vast majority of law professors in the United States could be described accurately as center or left of center. Yet my own academic studies have led me to contest their predominant worldview at every key point. Having been reared in the philosophy of Hobbes, Locke, Hume and Madison, I have long been a strong believer in the twin institutions of private property and limited government.

Accordingly, I have devoted much of my scholarly energies to explaining how these principles are not obsolete ideas of the founding period, but are well adapted to deal with conditions that the Founders themselves could have scarcely imagined: modern technology; a nation with 50 states and close to 275 million people; and an unprecedented level of cultural and ethnic diversity. We need the State to control the private use of force and to supply infrastructure, but we must be on guard against a State that becomes so powerful that it imposes its monolithic vision and bureaucratic imperative on all its citizens. With the rise of modern communications and transportation, entry into markets that provide education, services, and products should be easier than at any time in our history-if only we could find ways to keep governments at all levels from blocking entry.

Law is, however, both a theoretical and practical discipline. So I have long sought a congenial platform to give the broadest possible voice to these principles. It is on just this point that my long and close association with IJ has proved so fruitful. From the outset, IJ brought principled arguments for limited government and private property to the attention of the United States Supreme Court through amicus curiae briefs. Over the past eight years, I have been privileged to work with Chip, Scott Bullock and Dana Berliner in the preparation of six amicus curiae briefs designed to present our joint philosophical vision in key cases before the Supreme Court on matters of private property and federal power. In Lucas v. South Carolina Coastal Council (1992), we argued that the State’s police power did not allow it to impose a total uncompensated prohibition against building on beachfront property, and helped persuade the Supreme Court to recognize the close interconnection between the common law of nuisance (a bulwark of individual liberty) and the scope of the State’s police power. Most recently, we have (in cooperation with the Cato Institute) submitted a brief to the Supreme Court urging it to strike down the Violence Against Women Act on the ground that it falls outside of Congress’s power under the Commerce Clause and the Fourteenth Amendment. In between, we have submitted briefs that have addressed the doctrine of unconstitutional conditions placed on the use of private property, the use of transferable development rights as a form of phony compensation, and the improper delegation of administrative powers in environmental cases. We cannot claim to have carried the day on all these issues, but we have put before the Court a measured and systematic defense of private property and limited government that dishes up neither mindless worship of the past, nor a disguised plea for preserving the privileges of the haves against the have-nots. In the process, what was once a monologue has now become a debate; what was once a win by default has now become a genuine contest.

Supreme Court advocacy is only one facet of IJ’s work. One central theme of the Institute for Justice is that only economic liberty offers essential opportunities for advancement to people at the bottom of the social and economic ladder. All too often, government sages think that handouts and transfer payments help solve the poverty question. But these nostrums only paper over the fundamental problem because they do nothing to help individuals become self-sufficient contributors to their families and their communities. IJ has rightly maintained that only by opening up economic opportunities can this nation fulfill its promise of equality. Toward that end, IJ has rightly pushed hard on two main fronts. First, it has worked to remove the mindless regulatory barriers to entry that state and local governments have thrown in the path of ordinary people seeking to improve their lot through honest labor. Second, it has fought hard to defend school vouchers as the only way to break the public school monopoly that condemns so many underprivileged children to an inferior education. In this, they are making a vital difference.

I recently had the great privilege to work with Chip and Clint on the establishment of the IJ Clinic on Entrepreneurship at the University of Chicago, which addresses the first of these issues. In classic IJ fashion, the real impetus began with IJ’s educational programs directed toward law students. Two 1999 graduates of The Law School-Mark Chenoweth and James Ho-returned from a 1997 IJ summer conference determined to forge an alliance between IJ and the University of Chicago Law School. Their goal was to establish the first transactional clinic in the United States dedicated to helping entrepreneurs navigate regulatory barriers to opening a business. The initial proposal generated some vocal student opposition at The Law School: sometimes it is difficult to distinguish between defenders of economic privilege and defenders of economic liberty for all. It was a pleasure to work with Mark, James, Chip and Clint to help win over The Law School to partner with IJ on this novel venture. Under the able leadership of Patricia Lee and James Joseph, the IJ Clinic on Entrepreneurship has flourished at The Law School, and it is now widely regarded on all sides of the political spectrum as one of the major assets of a great law school. And this brings me to the last point. Ideas and commitments may be necessary to forge close working associations, but they are not sufficient. The personal element matters as well. What distinguishes IJ is that it brings out the best in everyone who is fortunate enough to work there. It is no accident that IJ’s alums are its best ambassadors. I am pleased that so many University of Chicago graduates have worked at IJ-Donna Matias, Miranda Perry and Neomi Rao, to mention only a few. I am doubly pleased that my daughter, Melissa, was privileged to work as an IJ intern in the summer of 1997 between her junior and senior years at college. From every corner, the same message shines through. The Institute for Justice works because it cares about its people just as it cares about its mission. As we enter a new millennium, we shall surely face new challenges. On both a personal and professional level, I am glad that IJ will be there to help meet them.

Richard Epstein is a professor at the University of Chicago School of Law.