Banquet Dinner Keynote: Prof. Richard Epstein
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Banquet Dinner Keynote: Prof. Richard Epstein


(light playful music) Thanks very much, Gene, and it’s a pleasure to have
you all in the Big Apple, and this has been a really great weekend. It’s been a year in the making. And what better way to cap it all off than with our banquet speaker, Professor Richard Epstein. Professor Epstein. (audience applause) After this weekend, I don’t think I need to really introduce Professor Epstein. He has been a constant presence both at the symposium, on social media, but really he’s been a constant presence in this organization, and for all of us in the
conservative legal movement, I know as a 1L opening up, basically any of my 1L textbooks I was sure to read something
that Professor Epstein wrote and maybe even had a
textbook authored by him. And to have him here and
to keynote this banquet is just really a capstone as a 3L to sort of the ideas that he inspired us all to believe in, the sort of encouragement even when our own faculty may not espouse the ideas that we hold dear, we had Professor Epstein always pushing the ideological envelope and always having our backs, so to say. And with that, I would love to welcome Richard Epstein up to the stage. (audience applause) It’s a big crowd. I don’t have a glass of water. Look, it’s really a very
great honor to be here, and as I begin let me first add my thanks to Will Baude. I have a special reason to thank him. When I’m at the University of Chicago, my office is (audience cheering), is next door to his. He’s sitting next to Miss Grant who’s my Roman law student, right? And so we have there
sitting next to McConnell and Otis, who are former students of mine, so I feel as though I’m very much at home. And the thing to say
about Will is it’s not only that he educates his students, he also educates his
elders, folks like myself. Going into his office
with his pile of books, my first thing is to take
one that I’ve written which is on the bottom of the stack and move it to the top. Just so that he won’t
forget that I’m there. And then it’s like a clinic listening to him talk about things. He’s not only a librarian, but it turns out his
comprehensive knowledge is truly awe inspiring and I’m very much in his intellectual debt as I am for so many other
people in this room. Now I’m talking today
I guess about a topic which is supposed to be benign, but is in fact deeply subversive. And the title of the talk that I gave, if only to myself, was A Common
Law of the First Amendment. What could possibly be
more innocent than that? But this title was in fact patterned on a talk that I gave at
the Yale Law School in 1983 when I was invited by a member of the then nascent Federalist Society
named Eugene Olavski, who calls me up and he says, “The Federalist Society has been allocated “a single spot at the two-day convention “on the celebration of
the 50th anniversary “of the New Deal, “and we wonder whether
you have enough temerity” “in order to come and to fill it.” And my answer to him was, only, I was perfectly happy to do it, even to pay my own way if necessary, given what the founding fathers of the Yale Law School think. And I gave a talk on the
common law for labor relations, which provoked a near riot
on the part of many people who were in the room, and for good reason. What happened was I had taken labor law from a man named Harry Wellington, who was a fine teacher and a
good New Deal accommodationist, which meant in effect
that you took every major premise to settle and
spent your time arguing how you implement the fundamental principles of the National
Labor Relations Act and similar statutes, and whether you did it through a board or through an arbitration proceedings or through a private
tort action, or whatever. And I sat in the class and saying you never ask the right question, which is whether or not you ought to blow this thing entirely up and start over. So when I, (audience applause) so when I come back to the
Yale Law School in 1983, I decide to have my revenge, and I will talk about what
the labor law will look like if you have a common law approach with respect to the subject matter. And this will actually
relate to freedom of speech, and I hope to explain why. The first thing what you do is if you’re a good common lawyer, generally you think that coercion is bad and that contract is good. And so you have as your first proposition that no person ought to be forced to enter into a contract with somebody else unless you fell within
the narrow common carrier situation, and standard competitive firms are not common carriers. So the 1908 and 1915 decisions in the Dare and Coppage v. Kansas, respectively, are not ancient curiosities, but they represented very sound rule when they struck down
collective bargaining statute. And then it turns out if it turns out that these people cannot
force arrangements, inducement to breach of
contract is a traditional tort and shortly thereafter, if you ask workers on a job who are not
union members to come out in unison when called,
it’s inducement to breach of contract, which is tortious,
and you can enjoin them and hold them responsible. Now these are positions which
are the articles of faith of a very tiny minority
of people then and now, and they were completely
dashed with the New Deal in the period between 1932 and about 1940. And so if I was right, the
National Labor Relations Act, the Norris-LaGuardia Act,
the Fair Labor Standards Act, these all go the way of all flesh and have to be struck down. And you can imagine what
the response was to that at this particular New Deal celebration. It was not positive. (audience laughing) But I managed to survive
the day and to have the great virtue of remaining
an academic forever, because once you announce that you believe in the yellowed law contract
as the highest expression of individual liberty, your
life as a public servant is forever over. (audience laughing) Which is just fine with me. It’s more fun to be a critic than it is to be an apparatchik as far as I am concerned. So the question then is,
well how does that relate to the topic that I am
supposed to speak to you now? And well if you start
listening to what I said, what were the kinds of
things that you were prepared to find tortious? Inducement of breach of contract. Well, that involves speech, right? And then the question is,
well if it involves speech, why is it not protected by a clause which starts to deal with
the freedom of speech? And then, if it turns
out you look at contracts and I say, I refuse to deal with you, that’s also speech. Why in turn is that
not gonna be protected? So what we have is this puzzle. They’re getting it exactly backwards. Those things which are
tortious are now protected, and those things which are
contractual are now attacked. The shift from the older
system to the newer system is not just some marginal
error being corrected. It’s a fundamental inversion
of basic relationships. It’s like setting a ship
which is sailing north and turning it around
and sailing it south, and saying, we haven’t done anything except a modest course correction. Well, once you understand this, what then becomes from this? Well, the first thing you realize is that if you’re going to try to analyze anything having to do
with freedom of speech, you cannot silo speech
from other forms of conduct with which it’s related. And if you listen to many of
the remarks that were made at the conference in the last two days, there was always the question,
is this a pure speech thing, a part speech thing, another
kind of speech thing? And what happens is you’re
desperately trying to figure out how to draw boundary lines, most of which, as a matter of general theory, don’t work. And what’s characteristic
of the common lawyers is that they never thought that there were separate amendments with
different standards of review. They had a comprehensive
view of the world, which essentially talked about what’s good in voluntary arrangements
and what’s bad in coercion. And then what you try
to do is to figure out what counts as coercion? And if you get the correct
definitions on this, this is the way in
which it starts to work. Coercion involves the use of force, and everybody understands
that force is not speech. But coercion also involves the
threat of the use of force, and no matter how clever
you are about the way in which you look at the system, it’s going to be very
difficult for you to come up and to say that a threat
of one kind or another by words or I dare say by gesture, it really doesn’t matter
for these purposes, is somehow or other in
a different moral realm than is the actual coercive behavior. Well at this particular
point, there is as a matter of common law, no fundamental
distinction between conduct on the one hand and
speech on the other hand. The question is why do you think these things are good or bad? Well, let’s begin with
a very naive premise, which is generally speaking,
people know their own self-interest, and so if they decide to do a particular action, the
reason why we favor freedom for them is we now know
that somebody is better off and we don’t have any information yet as to whether or not, either
episodically or systematically, anybody else is worse off. And so you can call this
a pareto improvement, to be very clever about it. And generally speaking, the older I get, the harder it is to find an objection to the proposition, I
figured out a way to make somebody better off in his own life and not make anybody else
worse off in their own lives, but nonetheless it’s immoral because. It’s very difficult to
figure out what the Trump is if you define self-interest
in a sufficiently broad way. But this does not mean that
we believe that liberty and license are the same things. Because there always are externalities. Now these externalities are of two sorts. There are some which
are positive, which are extremely important,
and I’ll talk about them maybe a little, but that’s not the essence of this talk. When you’re talking about the state, the first business isn’t to subsidize positive externalities. Your first business is to
make sure that negative externalities are going to
be effectively controlled and suitably defined. And so what the libertarian
says, and says rightly, is the use or threat of
force is in fact not to be protected as a part of liberty because if systematically
engaged in by all persons against all other persons,
this turns out to be the war of all against all,
in which nobody is better off, everybody else is worse off. This is not a very difficult
empirical judgment, and so what you have done therefore, is to now have a way in
which certain forms of speech and certain forms of
contract are going to be equally proscribed, so you
have here a kind of nice view of what it is that we’re dealing with. Now, it turns out that anybody
who does libertarian theory realizes that force has a kid brother, and the kid brother turns out to be some form of misrepresentation. We talk about force and fraud. And again, it takes a
great genius to figure out why fraudulent speech
or fraudulent conduct is in fact to be regarded as
something other than speech when it’s clearly speech,
and yet nobody would want to say that these things are appropriate, because one of the major
agencies associated with speech is as follows. If I can talk to you and
lie to you and get you to give something, then I
don’t have to threaten you, and by and large, threatening
people is more dangerous than lying to people, so I’d rather use the subtle technique
and hold the force back to the cases where I really need it. And we kind of understand
that you’re not allowed to do this. It also turns out that
if you’re talking about the really deadly forms of speech, many of them in the form
of misrepresentations about A to B, which is part
of a very early body of law, known as the law of defamation, and it means essentially,
I say something false to somebody and he doesn’t do
business with a third person, you can really make this
into an enormous norm in which there is a
massive amount of harm. And it also relates to force
because there’s also a tort known as interference
of prospective advantage by the use of force, so
if I shoot a gun at your potential customers and they run away, it’s not only a tort against
the persons who were assaulted, it’s an interference with
advantageous relationship, and defamation should
be regarded as a kind of a kid sister with
respect to that as well. So if you put these things together, what you do now is you
sort of have a very good first approximation
about the kinds of things that we would generally
want to regard as wrong. And we’ve done so
without invoking any kind of general constitutional doctrine. But it turns out that the law is much more complicated than this,
and as you understand what the nature of the
difficulties are with respect to the common law, you can
then see how they transform almost isomorphically to
modern constitutional law. The model that I have talked about here essentially has omitted a
couple of very important questions which have to be
batted back into the occasion. Sometimes you do one of these things, you use a threat in force,
and you could be justified under the circumstances. Sometimes you lie, and you could
be justified in doing that. Now there are people
who want to deny this. One of the most famous
illustrations by Immanuel Kant, which basically relegates him to the world of insane philosophers on a bad day, was that if somebody comes into your house and asks the whereabouts
of your children so that he can murder him, you may remain silent, but you may not lie in order
to throw him off the scent. And people said, was it
senility or stupidity that drove this particular situation? But I’ve seen modern philosophers say the same kinds of thing
in the Kantian tradition. But virtually everybody
understands that whenever you have prima fascia
cases there are going to be justifications or excuses
that can be given to them. If you now think of the
constitution as creating a set of prima fascia cases, prima fascia that you’re allowed to talk,
and then you can overcome that by showing force or
fraud, then you’re gonna allow for justifications, and
it turns out, I don’t care how much of a textualist Mr. Will Bode is or anybody else, sooner or
later, the issue of how it is that you introduce
justifications and start to deal with them is gonna be a central part of your overall kind of system, which means in effect that
textualism, properly understood, is a constitutional norm
that answers a few questions directly and then invites you
to develop a comprehensive theory of liability,
excuses and justifications. If you go back, and you’re
a good common law pleader, you know that confession and avoidance doesn’t end everything. There are exceptions to
this and exceptions to that, and by the time you’re
done, if you’ve ever looked at any ancient texts
and then start looking at the constitution,
what starts out as a tiny provision, Miss Grant,
ends up as the lex Aquilia, if you recall right, and and it turns out one sentence gets 55 pages of detailed exposition, and
if you start looking at it, you realize they can’t avoid any of the questions that they raise. Modern American constitutional law raises exactly the same kind of issues. So we then start to push
ahead a little bit further and say what else is
there about common law that you have to do after
you’ve gone through this elaborate situation of prima fascia case, justifications, exceptions and so forth? You have to think about how
the law of remedies works under these circumstances. And us good libertarians
tend to start the analysis in the ex-poste world where
a single discreet action has taken place, and the only question is rectification for past harms. And that was the model
that Aristotle put forward when he talked about corrective justice in, I think it was, The Ethics, but it may have been
The Politics, who cares? So it turns out there’s
one serious problem with this particular analysis, actually many serious problems. Let’s just start with the first one, is that legal systems, in
effect, have to deal with this difficult problem
known as uncertainty. And that sometimes you have
actions that are in the making which may or may not
turn out to be harmful, and you have to decide
whether you’re going to give an ex-ante remedy on the one hand or an ex-poste remedy on the other, or some combination as between the two. If you then break both of the halves down, it turns out that the ex-ante remedies are extremely complicated,
they can have temporal components to them, they
could have conditions associated with them, they
can involve third parties that may be involved. If you then try to do the ex-poste world, it could be expectation
damages, reliance damages, a fine of one kind or another, and you have to answer
this particular question, but you can stare at
the constitutional text as long you want, and you will
discover there’s not a word which starts to deal with the way in which you face these remedial
issues, and as good First Amendment lawyers, we start hearing that you don’t allow prior restraint, except in the cases when you do. And then you have to figure
out why the presumption is one way rather than the other. And essentially what the
rule is is exactly the same as courts of equity
developed a long time ago, which is by and large, you
wait as long as you can, most of the time before
you issue an injunction, until the time of imminent peril because otherwise what
you do is you manage to shut down too much innocent activity and exactly the same kind of choice abides us in all sorts of issues. So if you go back to one of
the famous English cases, Tuberville and Stampe, the question is, if somebody says, I would strike you if it were not a size
time, can you hit him? Because if you wait, as the
judges say, it may be too late. And then when you get to modern cases, this is no different from
the issue that you face in a case like Abrams
and Shank and Dennis, where these guys are starting
to talk about things, they seem kinda bad, they may
be doing something harmful. Can you or can you not
punish them before the act, or must you wait afterwards? It turns out, with certain
things like conspiracy, you can do it beforehand. And one of the things I
always like to say about the great Brandeis dissent
in Whitney against California is it wasn’t a dissent. It was a concurrence. He was prepared to throw
these guys in the slammer because they had a conspiracy
with a particular end, and nobody can tell me that a conspiracy in some sense is not a form of speech. The externalities are
negative, so we punish it. If it’s an ordinary partnership, is the externalities are positive, so we in fact enforce it. So what’s going on in
this particular case? It just turns out that the
interpretive commitments that we make to a particular constitution require us to go back and replicate as a constitutional matter
all of the kinds of disputes that we have to resolve in
ordinary private law disputes. And it also turns out in
the private law disputes, the more complicated the
case, the more contested the remedies and the more
difficult the choice, and so if you follow the model
that I’m talking about here, you can now understand
why in many situations, as you get yourself into
the constitutional law, you quickly end up into
the constitutional thicket. The question is whether
or not this is fatal to the rule of the law, is one of the questions
that you want to answer. And the answer to that question is no. And the reason why the answer is no is that as you start
to look at complicated variations on any
doctrine, the first thing you must always ask is what the frequency of occurrence of the difficult
problems that we could phrase in the abstract, and in one of my sort of
eureka moments in law school, I was sitting in a
class on civil procedure with the late Fleming James,
who was a tort professor, and I had just gone through
my English experience reading all of the
variations in H.L.A. Hart on causation and the
law, and Fleming James, an old railroad lawyer,
starts talking about proximate cause, and he says, “You know what this stuff is about? “Somebody ramming into somebody else.” And if 98% of the cases
turn out to be like that, or the Paul Grass variation
having to do with setting on fire explosives and things of the sort, you can have contest
on low-frequency issues that are difficult to resolve by courts, so long as you get the easy cases right on both sides of the line. And so doctrinal complexity
is not necessarily a sign that the entire system will necessarily break down and fall apart. So having done this particular
common law type situation, what you then want to do
is to start looking at some constitutional doctrines,
and I don’t know how many minutes I will be given by
Gene, but when he gives me the ax I’ll just stop in midsentence, you want to sort of
see how they square up, and sure enough what happens
is you look at these things, you see all the common law
problems coming back again. You see cases of defamation arising, cases of intentional infliction
of emotional distress, cases of what else did we say, fraudulent behavior against third parties, cases of God knows what
kind of uncertainties that you have in other kinds
of business arrangements. How do the cases treat them and why? Well let me go down to a couple of them. The first one that I think
is extremely important is one that was talked about many times in the conference and we can never ignore. And it’s the relationship
between the law of defamation on the one hand and the
law of personal offense on the other hand. And this is the way I think
one has to deal with it. As I said last night, and I
don’t want to dwell on it again, I thought that New York
Times against Sullivan was a terrible mistake to
the extent that it abandoned the earlier common law
decisions by making actual liability turn on malice. If one follows the arc
of cases since that time, there was huge litigation
over this particular issue in all its variations from
about 1964 to about 1990, and then it just drops like a stone. What happened is every
serious media plaintiff knew that if you tried to sue,
by the time you were done, you were worse of suing than
sort of licking your wounds and going off, and so there are no cases the actual malice test became de facto, an absolute bar. Well what does this do? It makes sure that people now have a free season on public officials, and if you want to
intensify your criticism, you can do so pretty much without
any kind of legal redress. There is counter street but
the last thing we wanna do is having screaming on
both sides of the issue. And so what the legal system
does by removing the standard restraint is it encourages various kinds of extreme behavior,
which goes against one of the themes that we
had at this conference, namely the theme associated with civility. But the greater danger
comes from the second half of this, and that’s the
material that’s associated with the principle of offense and the principle of the heckler’s veto. And I take my key on this particular point from what I thought was an
extremely prescient sentence by Justice Rehnquist,
Chief Justice Rehnquist, in a 2000 case called Dale against the Civil Rights Commission
or whatever they called them. They’re called human
rights, it doesn’t matter. In New Jersey, in which the
issue was whether or not the Boy Scouts, which had
a preference at the time not to admit gay members,
were entitled to have it. And Justice Stevens in one
of the great miscalculations, announced that if it’s a
really intense preference, then I’m willing to expect it, but if it’s just a mild
preference and there’s a lot of difference,
I don’t have to do it. Well, what happens is
this is an open invitation for anybody who wants to
disagree with somebody to realize if they just
disagree they can’t change anything, but if
they get themselves up into a white lather, now all of a sudden they’ve got themselves some
kind of a powerful entitlement. And the last thing that you want to do in any legal circumstances
is to privilege the kind of extreme behavior that
takes place by giving it a purchase on the conduct
of other individuals. And all of the stuff that
the First Amendment says about the heckler’s veto tends
to worry for the most part in traditional analysis about
the immediate circumstance in which one guy is not
allowed to shout down another. But the long-term
insidious behavior is with the incentives that it creates for people to engage in that, and
so the correct answer in these cases is the one
that Professor McConnell said earlier on, is you try
to your damnedest to stop those people who are engaged in the wrong, rather than forcing people who are engaged in permissible speech conduct to surrender on the other side. And if you put together
these two mistakes, both of which are inconsistent
with common law principles, it turns out you have a
fair bit of what’s going on to explain what’s worked in
these particular circumstances. Now, to take another kind
of variation, let’s start looking at the fraud side
of this for a second. And then I’ll turn a little
bit to the remedial side of it. And the case I wanna
talk about here is a case called Alvarez against the United States, having to do with something known as the Stolen Valor Act. And what this is is a
situation, well documented by Justice Alito in his
dissent, where what he does is he shows that are there
are all sorts of people who go around and find —

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