Richard Epstein's Revisionist History Leads To Revising of History


Today’s market idolators don’t know much, but they know what they hate. Take libertarian University of Chicago law professor Richard Epstein, who in his reliably hallucinatory column uses a wonky John Judis defense of the Obama White House’s approach to regulatory policy to divine all sorts of pernicious motives in the Progressive vision of law and policy making.

If this all sounds a bit of a Byzantine route for the sake of some rather pro forma offense-taking on behalf of the molested free market, well, you haven’t seen anything yet.

Epstein, best known for his labored efforts to resurrect the Constitution’s takings clause into something of a free market Magna Carta, leaps upon a passing reference to Progressive Era attorney (and New Deal Supreme Court justice) Louis Brandeis, in Judis’ recent New Republic piece-and from it fashions an all-purpose assault on what he takes to be the incorrigibly paternalist outlook of the Progressive tradition.

Recurring to the argument presented in the original “Brandeis brief”-an argument Brandeis presented before the high court in 1908 to uphold the restrictions on hours enacted in an Oregon law to protect women workers-Epstein delivers this scathing assessment:

The body of the brief is the absolute antithesis of any scientific argument. Brandeis stitches together an endless array of government reports that all boil down to the same unhappy message: a woman’s delicate and frail nature requires the legislative intervention to protect her against the ravages of the workplace. Utterly missing is the modicum of critical intelligence to ask how this claim relates to public policy.

Brandeis never asks about any trends in health risks over the 40 or so years covered in these studies. Nor does he ask why if working conditions were so oppressive, the overall indicators of human health, both male and female, were getting better. Nor, as a matter of political economy, does he explain why state regulation is needed if these sex differences were as profound as he insists. Women themselves could figure that out as well, certainly after reading any of the studies on which Brandeis relies. That done, women could-and surely did-sort themselves by occupation such that the jobs went to those best able to handle risks.

This is all, in Epstein’s judgment, yet another baleful instance of a Progressive penchant for “intellectual self-promotion” against the sober dictates of impartial scientific inquiry into policies that dare to impinge on the sacred right of employer-empowering labor contracts. “Expert scientists let their work speak for itself,” Epstein sneers of the statistics-driven argument advanced in material such as the Brandeis brief. “It’s political actors who flaunt their impeccable credentials as a convenient cover for their partisan motivations…. [T]he distinctive progressive conceit is that they really do walk one step ahead of the unwashed crowd.”

Now, we can certainly stipulate in retrospect that the separate-sphere rationale behind the Oregon law-that women workers mandate special protective measures because of their purportedly frail physical makeup-was analytically misguided, as was regrettably true with much of the Gilded Age’s official political culture. It’s far from the case, however, that Epstein’s stalwart champions of market virtue were notably more enlightened in matters of gender equity-as witnessed, to take one of countless examples from the era, in the hapless 146 women who failed optimally to “sort themselves by occupation” in the free-contract Valhalla of Epstein’s fond imaginings and so were martyred in the Triangle Shirtwaist Fire of 1911 because their employers thought the best way to beneficially employ immigrant workers was to keep them locked up on site at all times.

(The Triangle fire also furnishes perhaps the most cogent reply-again, among countless contenders-to a plaintive sidebar question Epstein poses about modern feminists: “Why aren’t they libertarians?”)

But consider instead the deeply unscientific brief Epstein himself assembles against the preening, paternalist, unwashed-mass-deriding tradition of the “Brandeis brief”-clearly the original sin of Progressive legal reasoning and social thought in Epstein’s view. As David Bernstein, a conservative law professor at George Mason University, persuasively argues, Brandeis’ handiwork in the Muller case was “less radical than it seemed”; since the state “had filed its own traditional brief in the case, he did not need to revisit the state’s argument.”

More to the point, however, the precedent for introducing “sociological” argument about the real-world impact of a high court ruling was not set by Brandeis at all-it first surfaced in the jurisprudence in the landmark 1905 pro-business ruling Lochner v. New York, in which the Court struck down a New York law setting upper limits on the hours that bakers could work. There, in finding for the plaintiffs, Justice R.W. Peckham dug up a set of contemporary public health and workplace surveys that allegedly showed that there was nothing particularly unhealthy about workdays longer than 10 hours in the baking industry. And like any savvy attorney wanting to exploit the prevailing drift of court opinion, Brandeis crafted his Muller brief accordingly. As Bernstein observes:

Brandeis was likely motivated to write a “sociological” brief by Peckham’s assertion in Lochner that he had relied on statistics demonstrating the relative healthfulness of baking. Nevertheless, the brief received a mention in the Court’s opinion upholding the law at issue (although, many have failed to notice, only for reinforcing what the Justices said they already knew from “common sense”), and the so-called “Brandeis Brief” became a staple of constitutional argument over Progressive reforms.

While this may all seem like fairly gnat-straining legal history, it actually doubles up the delusion factor in Epstein’s tirade, since our correspondent duly goes out of way to pay obeisance to the wisdom of the Lochner decision. Gloating over one of the modern court’s most activist pieces of pro-business jurisprudence, Epstein writes that “Justice Peckham rejected the statute as a sham effort to protect worker health and safety. Instead, he regarded it as an unconstitutional ‘labor’ statute designed to hamper the immigrant bakers who compete with union bakers. The statute was exposed for what it was: a covert restraint on trade.”

Riiiiight. See, the thing with legal scholarship-at least in a perfect world-is that it’s supposed to flow smoothly in channels of argumentative procedure, and not backwards from preferred outcomes. So to impute grandiose motives of snotty I-know-what’s-best-for-everyone elitism to a tradition of reasoning one finds ideologically suspect, one had better be sure that one has a reasonably firm grasp on one’s facts, court dynamics and simple questions of historical sequence. In this regard, Epstein’s position is what Olympic judges of rhetoric might term a triple-gainer fail.

And it doesn’t end there. In his closing flourish, Epstein ostentatiously frets that the Obama White House may indeed being crafting dark Brandeis-ian rationales for a more aggressive regulatory policy. “Obama, as a former organizer who has flirted with these dubious academic ideas, has emerged as the stealth reformer that Judis portrays.” Yeah, I don’t know-if one is determined to employ tendentious, lazily argued guilt-by-historical-association claims, I’m much more alarmed by the reflection that Obama was once a professional colleague of Richard Epstein’s.

Chris Lehmann will not stand for this!