The Goldwater Institute hosted an all too short lecture by Richard Epstein yesterday, for which I made the nearly two hour drive from Tucson.
It was well worth my while; Epstein is at least as impressive in person as in writing, lecturing off-the-cuff with dexterity and humor. The day's stated topic was "The Coming Constitutional Crisis" but the real topic was the administrative state, the substitution of experts and bureaucracy for functions better kept to the judicial and legislative branches. I took notes so as to write a full summary on Associated Content, but they wandered off while I was asking a question in person afterwards. At least one thesis was that the problem is not a lack of judicial restraint nor a complete abandonment of duty but rather that the courts tend to show restraint when they should intervene and vice versa. The opening thought, that most modern Constitutional lawyers concern themselves with questions of institutional competence, kept creeping in as, of course, did Epstein's revolutionary ideas concerning takings.
Much fun for the audience, and I got more than I expected--and by that I don't mean an autograph in my copy of Skepticism and Freedom, although that was nice, too--in answer to a question afterwards about Cass Sunstein's "libertarian paternalism". I asked whether it was a way to "Brer Rabbit" our way away from the administrative state; Epstein replied by illustrating where the idea works (e.g. pension contributions) and doesn't work (e.g. at-will vs with cause termination) and remarking on "Which Sunstein" he'd like to see in the Obama administration.
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