Epstein on Roman Law

by Stephan Kinsella on July 18, 2025

I’ve always admired libertarian legal scholar Richard Epstein‘s work, even if I disagree with much in his approach—primarily his minarchism (I’m an anarchist libertarian; he seems to be some kind of minarchist), ¹ his intellectual property views (I’m anti-, he’s pro-), ² and his utilitarian approach (I’m Austrian and have a principled approach; he is Chicago and utilitarian). ³

I first met Richard in person in 2011 participating in an IP panel discussion at NYU, ⁴ and debated him on IP in 2021 at Gene Epstein’s Soho Forum. ⁵

Despite areas where I disagree with him, I’ve learned much from his writing on legal theory and political philosophy over the years. Too many libertarians are weak on sophisticated legal theory, while at the same time most legal experts are mainstream statists or legal positivists with little appreciation for radical anti-state and related views. Epstein is the rare thinker who combines both: deep knowledge of a mainstream discipline and a radical, libertarian approach to politics, economics, and the state. ⁶ And so my writing is peppered with references to his work, ⁷ including some of my favorites, such as “Pleading and Presumptions,” “Defenses and Subsequent Pleas in a System of Strict Liability,” and his brilliant Takings: Private Property and the Power of Eminent Domain, ⁸ which is no less than a full minarchist theory of the state. ⁹ In a recent article, ¹⁰ I brought in his views on in-kind restitution, which he deploys in his Takings book, in discussing difficult issues like immigration and unowned property. ¹¹

In addition to my interest in libertarian theory and Austrian and free market economics, and also in legal theory as well as actual law (international law, intellectual property, and so on), I have long had a deep interest in not only the common law—which seems also to attract most libertarians and free market economists—but also the Roman law and its modern instantiation, the civil law and continental civil codes of Europe and of my home state, Louisiana. And also related aspects of international law.

I can see more clearly now that my interest in these topics is a bit unusual for someone who is not a European or Louisiana legal scholar and academic. Even most of my fellow lawyers have little interest in legal theory and most know little about anything other than the common law. Same with most libertarians and free market economists and Austrians. And I see now that this interest arose partly from happenstance: I was educated both in the civil and Roman law at LSU Law, as well as common law, and I happened to study international law after law school, for master’s in law (LL.M.) at King’s College London and the London School of Economics. ¹²

My LL.M. was from King’s College London, but it was a joint University of London program among five of their law schools, and I took half my courses from King’s and the other half from LSE, including the most influential one, for me, “The International Law of Natural Resources,” taught by professor and now Baroness Rosalyn Higgins, a renowned international law scholar and later President of the International Court of Justice. ¹³ More happenstance, but this course led to more interest in this field and several publications. ¹⁴

I even found the things I learned about international business law in my London studies of use later on, both in my career in oil & gas law and patent law (there are international aspects to the practice of patent law, for example), ¹⁵ and also in my libertarian writing. ¹⁶

In any case, this led to an intense interest in both common law and Roman law/civil, which has persisted to this day; I even attended a purely legal conference on the Louisiana Civil Code’s 200th anniversary at LSU law earlier this year, and thoroughly enjoyed the break from libertarian, Austrian, and normative theorizing (and from IP!). ¹⁷

As a practicing attorney, I wrote on these legal topics to advance my career—international law, oil & gas law, intellectual property law. ¹⁸ And at the same time as my legal career was progressing I was writing on libertarian legal theory topics as well. ¹⁹ Of course, in doing this, I drew on not only my knowledge of IP law, which was essential to my libertarian-Austrian criticism of IP, but also on my knowledge of Roman and civil law as well as common law and international law.

Now I’ve mentioned before that I chose LSU Law mostly by default, as it was a good and reasonably priced local law school, and I wanted to stay in Baton Rouge while my girlfriend, now wife, finished college. ²⁰ I had no idea what kind of law I wanted to practice or in what state. I considered both Baton Rouge, Louisiana, and Houston, and in fact clerked at firms in each city my second summer of law school since I was not sure yet. ²¹ I did not even consider patent law, even though I had BS and MS degrees in electrical engineering and never even took a course on IP law in law school. I ended up accepting an offer to practice in the energy and oil & gas law department of Jackson Walker in Houston; they recruited me in part as my Louisiana law background would enable me to practice both Texas/common law oil & gas law as well as Louisiana law, which is unique as it is the only civil law state in the US. In later years I thought perhaps I should have gone for a better law school, and even briefly considered applying to Harvard Law in my second year. ²²

It only started dawning on my later how my Roman and civil law background was of great use in my libertarian writing as well. As I wrote recently,

Though I turned from engineering to law, I do not regret my initial path in engineering; it provided a good foundation that served me well in both my vocation—law—and in my avocation—my intellectual, libertarian, and scholarly interests. ²³

Or here, Preface and Acknowledgments to Legal Foundations of a Free Society:

I started publishing on matters of libertarian theory in 1992, fresh out of law school. I tried to use my knowledge of the law—both the English common law and the Roman law, as embodied in the civil law of most European countries and my own home state, Louisiana—and Austrian economics and libertarian principles, to advance libertarian theory where I thought I could contribute.

And here, The Louisiana Civil Code of 1825: Content, Influences and Languages; Past and Future: Returning to my Louisiana Roots:

it occurred to me that maybe I should have tried to apply to Harvard or some other prestigious law school. After all, in those days (1988 or so) I might have actually gotten in; being a white male was not as much a liability then. In fact during my first year, because my grades were so good, I contacted Harvard to see if it might be possible to apply and transfer and finish up law school there. Although it did look possible, I abandoned effort because of the complications involved. In retrospect, although I probably should have attempted this at the outset instead of applying only to LSU Law (it just didn’t occur to me), I am in fact glad I ended up at LSU Law, given how it worked out for me personally, career wise, and in terms of my scholarly and libertarian interest areas.

In any case, I regret nothing, as it was was completely serendipitous that I attended LSU Law, because of its focus on Roman and civil law (the European continental legal system), which later greatly benefited me in my intellectual interests and libertarian theorizing. ²⁴ This, plus the unavoidable exposure to the common law in any American law school, plus my in-depth studies in international law at King’s, turned out to be very useful in my libertarian theorizing later on since I was already familiar with these three major legal systems. This enabled me to use analogies and legal solutions from those systems in engaging in libertarian reasoning and theorizing; a lot of libertarian theorists have only cursory of actual legal systems and deep legal scholarship. ²⁵

And here, KOL456 | Haman Nature Hn 109: Philosophy, Rights, Libertarian and Legal Careers:

[From Grok’s summary] At Louisiana State University (LSU), a top civil law school due to Louisiana’s unique civil law system, Kinsella studied Roman and civil law alongside common law, providing a rare comparative framework. This education deepened his understanding of legal systems, which he now sees as serendipitously beneficial to his libertarian work. It enhanced his analyses of contract theory, property rights, and intellectual property, allowing him to draw on historical precedents like Roman law. Without this foundation, Kinsella believes his writing and theorizing would have been significantly less robust, as it fostered a systematic approach integrating legal history with Austrian economics and political philosophy.

As Adam and I discussed:

Adam Haman: Did your engineering studies influence your argumentation style?

Stephan Kinsella: Yes. Engineering, combined with my passion for legal theory, Austrian economics, and political theory, made me systematic. Studying Roman and civil law at LSU, a civil law state, also helped my libertarian analysis, especially in contract and property theory. ²⁶

This has all made me very fond of the Roman and civil law, and I no longer take the view that the common law is obviously superior, as many libertarians (many are Anglo-Americans and seem to be more familiar with US and English common law). ²⁷ And there are aspects of both Roman and common law that are unlibertarian. ²⁸ Hoppe has made a similar point about the relative merits of the English common law versus the European continental and Romanesque civil law:

This is the structure that the initial founding cantons in Switzerland had, where all free men swore an oath that they would come to mutually assist each other in case of an attack against them. And these cities frequently had written law codes, that is, Magdeburg Law or Hamburg Law or Hanover Law or Lübeck Law, etc., so that people who moved to these cities knew what law code would apply to them, and when new cities were founded, the normal thing to do was to adopt one of the already existing law codes and maybe make a few amendments to it. That is, some law codes became the law codes, not just of one city, but of many, many cities, who adopted the initial example of a place that first took the initiative to write these laws down.

In this connection, let me make a little side remark. In English-speaking countries, America and England, there is a certain amount of pride in having the so-called common law, which is, in a way, noncodified law, or case law. The Continental tradition, as you know, has been for a long time different. There, we have had codified law taken from the Romans, especially from the East Romans who had codified this law for the first time in an extensive manner and then, of course, in modern times, the Napoleonic Code, which has been taken over by most Continental European states in one form or another with some modifications. And, as I said, Anglo-Saxons looked down on codified law and hailed their own noncodified common law. I want to just remark that, for instance, Max Weber has a very interesting observation regarding this. He sees the reason for the noncodification of the common law in the self-interest of the lawyers to make the law difficult to understand for the layman and thus make a lot of money. He emphasizes that codified law makes it possible for the layman on the street who can read to study the law book himself and go to court himself and point out, here, that this law is written down. So, maybe this excessive pride that the Anglo-Saxons have in their common law might be a little bit overdrawn. ²⁹

All this is a long prologue to return to what sparked this post, which is Epstein’s own writing on law, legal theory, and political philosophy, which as mentioned I have found useful in my own writing. But it turns out Epstein is not only a common law, constitutional law, legal theory, and libertarian theory expert, he is also a significant scholar of Roman law. This had not really occurred to me until recent years; I always thought of him as a common law lawyer. After all, he studied law at Oxford. From what I can tell most of my fellow American attorneys from common law schools learned almost nothing about Roman and civil law; this is why Jackson Walker recruited me, after all: to handle Louisiana oil & gas law matters for clients with assets in Louisiana, because the legal system is so different and Texas lawyers tend to be intimidated by or unfamiliar with it. I was aware some of Epstein’s writing touched on Roman law but assumed that was mainly due to his wide erudition. But apparently law students at Oxford are exposed to both. ³⁰ In this, it is similar to LSU Law, although at Oxford it’s mostly English common law with some exposure to Roman law, while at LSU the focus is on modern civil law, as well as common law, and Roman law insofar as it’s relevant to the study of Louisiana civil law. (This is one reason LSU Law requires more hours for the JD than normal law schools, since the students must learn both Louisiana civil law as well as common law as practiced in its 49 sister states, requiring the students to take at least one summer of courses in order to graduate on time.) And now, instead of wishing I had gone to Harvard, I almost wish I had gone to Oxford. But then I would not have been exposed to modern Louisiana civil law. Oh well, it all worked out.

In any case, this helps explain the strong influence of Roman Law on Epstein’s own corpus. Speaking of corpus, I began looking into this when I noticed Epstein using the term latin and Roman law term corpore corpori (“to the body”), a tort concept from Roman law in a recent episode of the Epstein, Yoo & Cooke Law Talk podcast. (I am now not sure which episode it was, but one recent one I listened to was “Less Sex, More Text: Law Talk’s 2025 Supreme Court Recap” (July 8, 2025).) Epstein’s co-host, law professor John Yoo, was the author of the controversial 2002 “Torture Memos” in the War on Terror under President George W. Bush, and was appointed as Deputy Assistant Attorney General of the United States by Jay Bybee, then the Assistant Attorney General and head of the Office of Legal Counsel of the United States Department of Justice and now a judge on the Court of Appeals for the Ninth Circuit. Which I find interesting because Bybee taught as a law professor at my law school, the Paul M. Hebert Law Center at Louisiana State University, from 1991 to 1999 (I was there from 1988 to 1991). Small world.

In any case, Epstein mentions this Roman law term elsewhere in his writing, as I discuss in “Corpore Corpori”: “To the body”: Torts in the Roman Law. In the episode noted above, “Less Sex, More Text: Law Talk’s 2025 Supreme Court Recap” (July 8, 2025) (transcript appended below), Epstein mentions how key the Roman law was for him. Just a few excerpts from the transcript:

Richard Epstein (21:25): … I think it’s important to note that in the original Constitution, when they said the Supreme Court shall have jurisdiction over all cases in law and equity, the words “and equity,” when added back into the Constitution, were a major revolution, because now it meant that a whole set of rules on the English side get brought in which are not normally there. They change everything from standing on down. And what happens is, you have to really understand how the flexible positions work, and I was raised in that particular system. Unlike John, I have the benefit of the curse of an English legal education at the beginning, and I think curse is what I call curse. No, no, it is, actually, it has been transformative. Everything from riparian rights under Roman law on forward. Having studied two legal systems is, I think, the single greatest advantage that I’ve ever had in legal education. And I was not aware, when I made that decision back in 1964, just how powerful a situation would turn out to be, ’cause here we are.

***

John Yoo (42:29): So, I thought the dissent was… Can I just say, I love the idea of Richard and his kid proselytizing people in the neighborhood about the virtues of Roman riparian law. This is what makes America so great.

Richard Epstein (42:42): Absolutely, John. And, in fact, we do that, because I’m sitting here looking over Long Island Sound. And the number of times that the riparian rights issue has come up is actually very, very large. Everybody teases me about Roman law, which I’m duly honored. And then, when you start seeing a lot of these cases, it turns out people go back and start talking about the Roman law principles. I would just hope you were as abused as much as a Jehovah’s Witness going… I won’t be, no, I mean, as I said, the single most distinctive feature of my warped, as you would say, my warped worldview, is I was trained first in the civil law and the old English systems before I studied modern American law, and it leaves a trace on you, it’s like baptism, right?

Others have noticed Epstein’s Roman law influences. As Joshua Getzler wrote in 2010:

Amongst modern American jurists, perhaps only Epstein could seek lessons for common-law interpretation by looking at the Lex Aquilia of the 3rd Century BCE:

To see how the common law works, I will examine … not the common law or our own system, but the common law as it developed casuistically in Rome, where the rules of tort law were remarkably similar to our own. The historical remoteness of the Roman law system is, for these purposes, a point in favour of making the comparison. If the approach of Roman lawyers can survive the enormous transitions of space, time, and circumstance, as the Roman rules of tort have done, then there might be less than meets the eye to the frequent assertion that our common law rules are short term matters of convenience. ³¹

It is abundantly clear that Epstein acquired many of the tools to construct the strict liability theory from his legal studies at Oxford in the mid-1960s, where he studied the traditional Roman-law and common-law syllabus with its strong historical consciousness, alongside the new analytical jurisprudence then being formulated by Herbert Hart, Tony Honoré, and their peers and students.6 So Epstein’s Theory of Strict Liability straddles traditions: it is a classic of American legal analysis and at the same time a typically Oxonian contribution to jurisprudence. In his tort writings as in the rest of his lucid, learned and inventive work Epstein bridges the divide between the American and English common law worlds.7

6 Richard A. Epstein, The Modern Uses of Ancient Law, 48 S. CAROLINA L. REV. 243 (1997); Richard A. Epstein, The Not So Minimum Content of Natural Law, 25 OXF. J. OF LEG. STUD. 219 (2005). Epstein also traces his interest in constitutional protection of property to his time studying private law in Oxford; see his book SUPREME NEGLECT: HOW TO REVIVE CONSTITUTIONAL RESPECT FOR PRIVATE PROPERTY Xv-Xvi (2008).

7 The links between American and British common lawyers were much stronger a century ago, as shown by David M. Rabban, From Maine to Maitland via America, 68 CAMB. L.J. 410 (2009). Today jurists like Jeremy Waldron, Ronald Dworkin and Richard Epstein who work effortlessly in both traditions are rare, and of this group Epstein is unique in his engagement with the case-law details of both legal cultures.

See also his comments in the preface to Richard A. Epstein, Supreme Neglect: How to Revive Constitutional Respect for Private Property (Oxford, 2008), p. xv, which opens:

I think it is appropriate to offer a short autobiographical account of why and how I became interested in the constitutional protection of private property under the takings clause. The explanation lies, in an odd sense, in the peculiar path of my own education, which began with my exposure to Roman law and the common law while I was a student at Oxford University in the mid-1960s.

Below is just a sampling of some of Epstein’s works that touch on Roman law:

“The Beauty Of Roman Law,” The Libertarian with Richard Epstein (Hoover Institute podcast; audio; Sep. 17, 2019). Interview of Epstein, where he “explains why Roman Law remains relevant today; why it made especially valuable contributions on the topic of water law; how a failure to understand Roman law has weakened Supreme Court decisions; and what the connection is between the Romans and the Anglo-American legal tradition”.
Roman Law talk by Richard Epstein, Classical Liberal Institute at NYU School of Law (Youtube)
Playlist of short lectures by Epstein produced for the Federalist Society (Youtube)
“A Common Lawyer Looks at Constitutional Interpretation,” discussing corpore corpori and the Lex Aquilia, the Roman statute that codifies much of the tort law of ancient Rome ³²
Richard A. Epstein, “Classical Legal Tradition,” Cornell Law Review 73, no. 2 (1987-1988): 292-299
Richard A. Epstein, The Modern Uses of Ancient Law, 48 S. CAROLINA L. REV. 243 (1997)
My post discussing Epstein’s argument as for why Roman “occupatio” is superior as the key to homesteading as opposed to Locke’s labor mixing. ³³ As I note there:
- “As Richard notes in these lectures he is a huge fan of the common law but also of the Roman law. In these lectures he makes a point I had never thought much about before, about how the Roman idea of occupatio—acquisition of title to an unowned thing (like land) by simply occupying it is superior to the Lockean idea of labor-mixing. I never thought they were fundamentally that different, though it is curious that Hoppe in his “homesteading” theory seems to focus more on embordering and/or transforming as as to establish an intersubjectively ascertainable (objective) link between the actor-user-possessor and the resource, so as to prove or establish title or ownership. This approach it seems to me closer to the Roman occupatio approach than to the Lockean labor mixing idea, though again, I think the Lockean approach is similar if we drop his assumption that the actor owns his labor; so that labor mixing or transformation simply becomes one mode that an actor can establish his link to the resource, that is, labor mixing is just one way of embordering.” ³⁴
“The Economic Structure of Roman Property Law,” in The Oxford Handbook of Roman Law and Society, Paul J. Du Plessis, Clifford Ando and Kaius Tuori, eds. (Oxford University Press, 2016)
- Grok summary: This chapter examines the economic foundations of Roman property law, analyzing how the Romans structured property rights, including the distinction between common and private property. Epstein highlights the sophisticated classification of property in Roman law and its relevance to modern property systems.
“The Natural Law Origins of Private and Public Law,” New York University Journal of Law and Liberty, 17 N.Y.U. J. L. & Lib 205 (2024)
- Grok summary: This article explores the natural law principles underlying Roman law and their influence on both private and public law. Epstein argues for a middle ground between moral absolutism and modern realist perspectives, emphasizing Roman law’s role in shaping concepts like marriage, family, property, and procedural principles such as audi alterem partem (hear the other side) and nemo judex in causa sua (no one shall be a judge in their own case). He defends the conceptual unity of Roman law and its applicability to modern legal problems.
“The Necessity of Convergence in Private Law,” Southern California Law Review 92, no. 4 (May 2019)
- Grok summary: In this article, Epstein discusses the convergence of civil and natural law in Roman legal systems, referencing The Institutes of Gaius. He argues that Roman law’s reliance on natural reason and the Law of Nations provides a framework for understanding private law across diverse legal systems. The article emphasizes the enduring relevance of Roman law’s approach to property, contracts, and torts.

Transcript (cleaned up by Grok):

“Less Sex, More Text: Law Talk’s 2025 Supreme Court Recap” (July 8, 2025)

Law Talk: Supreme Court Cases Discussion

Host: Charles Cooke
Guests: Richard Epstein, John Yoo
Production: Civotas Institute at the University of Texas Austin

Introduction

Charles Cooke (0:00): Okay, welcome to Law Talk, now a production of the Civotas Institute at the University of Texas Austin. Welcome to… Well, do they need any introduction? They do not. Richard Epstein and John Yoo. I am Charles C. W. Cooke. And since we last did an episode, we had a whole host of huge Supreme Court cases. In fact, we had six in one day on the last day of the term. That was Friday, June 27th.

Trump v. Cassa: Nationwide Injunctions

Charles Cooke (0:42): The biggest case of the term, arguably the one we’re going to start with today, was Trump v. Cassa. Now this started life as a case about the 14th Amendment and birthright citizenship, but over time it morphed away from that and in fact the merits were not reached and became a case about the validity of nationwide injunctions. It was 6-3 and the usual suspects lined up in the usual positions. Now before we go to John and to Richard, I will tell you my big takeaway from this, which was that I was persuaded by the majority opinions that legally speaking, that is under the Judiciary Act, under the various statutes that have been passed since, in particular the Administrative Procedure Act, and under the Court’s inherent powers constitutionally, there is a limit on nationwide injunctions and that it is not acceptable for a random judge somewhere in the country to claim powers that he does not, per the Court, have. But here’s my worry. I worry that without Congress acting to take back power from the president, without the Supreme Court getting involved in big cases swiftly, and without Congress giving the lower courts some more guidance on when they ought to intervene, that this is going to empower the presidency and make it even more imperial. And as such, although I think that the dissents, which were at times quite silly, were wrong on the law and that the Court was obliged only to consider the law, the objections that were raised structurally or politically in the dissents were not without merit. It does seem to me to be a problem to have a system in which the lower courts are unable to issue nationwide injunctions and a presidency that is increasingly unbound, because you could end up with some serious harms as the cases make their way through the courts and up to the Supreme Court. And by the time the Supreme Court weighs in, a lot of damage could be done. So, I’ll start with you, John. To what extent do you agree with my position on this? And are my structural fears overblown?

John Yoo (3:42): As usual, Charlie, I agree with you about 75% of the way. The 25% is the fun part to talk about. And I’m so glad that you are willing to volunteer yourself as a second target at which Richard has to shoot, because as we keep moving, it’s a target-rich environment for him, but he can’t concentrate on more than one target at a time. So, you know, first I agree with you. In a way, it’s a technical issue of federal courts law. How far does the power of a court run in issuing a remedy? And I find that kind of boring. I think the answer is actually quite simple, which is that the Constitution says federal courts decide cases and controversies, and the cases or controversies are just the people who appear before you in the courtroom. And so that’s how far the judge’s power goes, is to the people who appear. But as you said though, it contains much more important structural issues about the Constitution, and of course it has the most immediate political effect of letting, of unleashing President Trump’s agenda from these nationwide injunctions and preventing any single district judge from stalling the federal government in its tracks. Although, as you said, Charlie, this means that the Supreme Court is going to have to intervene faster and earlier in cases like the birthright citizenship case or a lot of President Trump’s executive orders. But the really big structural issue, I think, is one that’s raised most sharply by Abraham Lincoln and Dred Scott. I don’t want to overclaim here, but remember that Abraham Lincoln was faced with this problem of a Supreme Court that believed in its own supremacy and thought that it should issue a decision, Dred Scott, that settled the rights of all freed or escaped slaves throughout the country. And remember Lincoln said, because, right, Lincoln’s a member, the leader of the Republican Party. Lincoln’s, the Republican Party is founded out of opposition to Dred Scott and rises to prominence and wins the 1860 election because it’s opposed to Dred Scott’s holding, which is that slavery cannot be stopped by Congress and the president or even the freed states. And Lincoln said this. He said, I will obey the last line of Dred Scott, which means Dred Scott himself has to be handed over back to his original owner. And then Lincoln says, “I have no obligation under the Constitution to obey that opinion.” And he says, “It’s an opinion of the Supreme Court, the logic of the Supreme Court, and apply to every other case in the country. All those other slave owners can sue by the millions to grab back freed slaves, but I’m not going to go out and find them and voluntarily hand them over.” That’s essentially the same position, I think, that President Trump and President Biden and all the other past presidents are taking. I will obey the order of the district judge, but as an independent branch of government with the right to interpret the Constitution, too, I don’t have to bend the knee to the Supreme Court’s interpretation everywhere else. And I think that’s the deeper structural decision that the Supreme Court made here in this Cassa case. But surely, before we go to Richard, surely the Supreme Court said that it has the capacity to issue nationwide injunctions. It does, but I don’t know whether a president doesn’t also have the authority to take. Now, Lincoln also said that you should only do this when the Supreme Court’s really wrong on an issue of major importance like slavery. And Lincoln also said, in general, I will obey the Supreme Court nationwide, because I think that’s their job and they might be better at it than me. But he also said we would be giving up our right to self-government if we let the Supreme Court decide finally for the whole country on the Constitution’s meaning.

Richard Epstein (7:39): Interesting. So Richard, how much of that do you agree with? Well, I’m trying to catch my breath, but go back from Dred Scott 100 years later to Brown v. Board of Education, and all of a sudden now the Court’s the good guy on segregation, not the bad guy. And the great question was whether or not you would say about Brown v. Board, it only applied to the parties that were there and that every other southern state was free to do what it wanted until they themselves were directly sued. And what we did is we had exactly the opposite result in a case called Cooper v. Aaron, which says when the Supreme Court talks, it’s going to be a form, not of judicial parity, which was what John was pushing, but rather a form of judicial supremacy, which was the way in which this thing started to work out, and I think, in effect, talking about a nationwide injunction is not the form you want in order to deal with that debate. I think that it is also the case that most of the people in this country have accepted the Cooper v. Aaron solution was done for about 1958 or so. And that that would be today the law of the land. Well, which do I believe? Well, let me put it this way. I believe that the branch which is correct ought to have the final say. The problem is we never agree as to which that branch turns out to be. And so in this particular case, I think that the word you used, Charles, to say we don’t want to allow some random judicial court to have the power over the case was wrong. The reason it’s wrong is that you use the word random. And when people are starting to bring suits with respect to these kinds of cases, the last thing that happens is that a plaintiff who has the choice of forum is going to randomly go into the telephone book and say, “Well, I think I’ll go to the central district of Idaho for this particular case.” There are huge strategic advantages to going to one place or the other, and that means that the plaintiff is going to have a huge advantage, which means that these nationwide injunctions are going to be skewed in one form or another, and so I think what happens is that the correct rule, which is the old English rule of equity, is that when you start to issue an injunction, you bind only the parties to the particular case, and you don’t bind third parties, and they will be bound, if at all, by a doctrine of precedent, which means that the case can be used elsewhere in the American system. If you do something in the Third Circuit, that’s not going to be binding on the judges in the Fourth Circuit. So that you’re going to have, essentially, the Supreme Court to resolve them. And the problem with John’s position is that if the Court itself does not have an authority to do this, and you have splits in the circuit, and you have a congressional ace in the hole or a presidential view, what’s going to happen next? And this is another problem we have. Donald Trump, as the president of the United States, has taken the single most aggressive position on the scope of executive power that I’ve ever seen anywhere. The most recent manifestation of that had to do with the TikTok case, where he said, “Well, Congress had passed a statute which surely relates to foreign commerce. But I’m the president, and I have exclusive control over foreign affairs, and so that statute is not binding on me.” Well, that’s a complete sort of revolution from taking place, and you have this inter-mural fight, and it seems to me that the only body that can resolve it is going to be the Supreme Court. It said some very silly things in some of the earlier cases, cut back on them in some later cases, but I’m afraid I still believe, unhappily, in the doctrine of judicial supremacy. Why is it an unhappy situation? Because it turns out, no matter where you put the ultimate power, there are going to be cases where you miserably reject the result. And so what you have to do is to project over the full range of cases to see which of these doctrines is going to be least harmful. And in doing that, I think I come up with the Supreme Court for one very simple reason. We’re not in England, where parliamentary supremacy is unchallenged because you have one guy doing it. In the United States, you have a presidential system, and you have a federalism system. And if it turns out that the courts cannot resolve these problems, the inter-branch disputes that you’re going to see are going to be, to my mind, extremely dangerous. So I think that I thought the decision was right. I would want to decide it on somewhat narrower grounds. Anytime one wants to talk about 18th-century equity principles, that’s the stuff that I was raised on when I was a student doing law in England back in the 1960s. And so I’m very glad to see that they, I think, got that one right. I also think they were right not to say boo about the substantive merits of this particular case, which is going to be a titanic battle come the fall.

Charles Cooke (12:26): Let’s talk about some of the exceptions. We’ve touched briefly on whether the Supreme Court is one, but it thinks it’s one. Kavanaugh made this clear. There were no objections to it. The Supreme Court certainly thinks that it can issue nationwide injunctions. There were two other big exceptions to this ruling. One is Rule 23 proceedings, which are class action suits. And Justice Alito wrote separately to say that he’s worried that what will happen now is every judge who wishes to issue a nationwide injunction will just satisfy Rule 23 prematurely. And the second exception was the Administrative Procedure Act, which contains provisions for nationwide injunctions. Now the implication here, made explicit, is that Congress can pass other exceptions. There is some disagreement on this, it seems, with Clarence Thomas and Neil Gorsuch both saying that there are limits on that. But that to one side, should Congress now step in and pass a set of rules for lower courts, laying out when and what circumstances they can issue nationwide injunctions? And is there a problem with doing that, as Thomas and Gorsuch have implied?

Richard Epstein (13:54): I’ll take that one on. I think, in effect, that rules with respect to class actions cannot be done to overcome any inherent jurisdictional limitations on the ability of the courts to decide cases. And if you tried to do this by saying the current rules on class action have four requirements for bringing cases together, and Congress decides to say that so long as you have a single common issue across these cases, you could bring a class action, I think that would be an unconstitutional circumvention of the basic prohibition that they have. And so I don’t believe that you could do it that way. As to the Administrative Procedure Act, I think it’s exactly the same kind of thing. This is an effort to try to organize the jurisdiction that Congress and the various courts have over the administrative state. And I do not think that you can pass something about the Administrative Procedure Act which essentially forces the court to take the kinds of issues which it’s not allowed to do. Remember Marbury v. Madison, although it was completely screwed up on the facts, did announce a principle that was correct. If there is no jurisdiction in a court to decide a particular case, Congress in many cases cannot cure that defect by announcing that the structural limitations no longer exist. So there’s a long dispute as to which cases you could add into the hopper and which ones you could take out. But in this particular case, if the sole purpose of using class actions or the APA is to essentially circumvent the nationwide injunction prohibition, I think that both those motions should fail.

John Yoo (15:31): I don’t think Congress needs to now. I think the courts got the right answer. I think you would only want Congress to pass a statute just to codify the result. I think I’m not so worried, maybe as Justice Alito was, that the class action lawsuits are going to be an easy exception, because, and look, undeniably, this decision expands the power of the presidency. And the president will be able to delay in court even longer any kind of injunction by fighting over whether the class has been properly, what we call, certified. You know, there are all these requirements under Rule 23, like common issue of law, numerosity. I don’t want to bore people with them unless you want to go to law school and sit through civil procedure again, but this just provides more issues for the executive branch to fight on and delay any kind of nationwide injunction. You’re, Charlie, you make a good point about the Administrative Procedure Act. I don’t find that also such a worry. I mean, I think if plaintiffs are going to go to Washington, D.C., and litigate this through the federal courts there, which specialize in administrative law under the APA, that’s the way it used to be, actually, until these nationwide injunctions started really appearing in the last decade. And a lot of decisions fall outside the APA. The APA doesn’t cover everything. The APA, you know, it basically regulates the use of delegated authority by the administrative agencies. It may not cover a lot of the discretionary decisions of the president. And so I would think we should let, we should see how things work out under the Cassa decision. I have, I personally think that, you know, five years from now, we’re not even going to be talking about this decision. It’ll be a footnote in federal court’s casebooks. What’s really important is, you know, the structural issues that we’ve been discussing, and then the political issue that it allows President Trump to go forward on his agenda. Agree with parts of it and disagree with parts of it, as we all do, but at least people voted for him. He’s putting this agenda into place. As you say, Charlie, it’s up to Congress to stop him, I think, more than the courts. And I think that’s really the bottom line message is that you shouldn’t rely on the courts to adjudicate everything that Trump is doing.

Richard Epstein (17:41): Yeah. Look, I wanted to take, again, part exception to that. Take the tariff case. John and I disagree on the merits, but I thought the case of the government was really weak. And so then the question is, you get a preliminary injunction, chiefly determined by the question of the substantial likelihood of success on appeal. And given, if you see today Trump reannounces the tariffs, the stock market goes down five or six hundred points in response to it. I thought that would be appropriate for a judicial decision to essentially enjoin that particular case, the tariff power of the president, until it’s resolved by the Supreme Court. And the quid pro quo is you bring it up as quickly as you can, because under these circumstances, now it’s the other way around. Since the president is not bound, he’s going to frolic as much as he possibly can, and it’s going to take, I guess, at least six to eight months before you can get any authoritative decision coming out of the Court. So if I were running this world, I would have essentially gone to the Supreme Court and asked them to reinstate the preliminary injunction, because I think the dangers of going ahead are much more dangerous in this novel area than waiting behind. So that’s another technique, I think, that has to be thrown into the mix.

Charles Cooke (18:54): I do think that there is a paradox here, practically speaking, and that is, if you look at, say, Biden’s repeated attempts to forgive student loans. Yes. The first one relied upon the Heroes Act. Biden said, “The Heroes Act allows me to forgive hundreds of billions of dollars of student loans, and I’m just going to do it.” And he started to do it, and the case went up and eventually hit the Supreme Court. Once that decision came down, Biden tried something else. Now, he wanted to convince the public that he was defying the Supreme Court. He kept saying, “The Supreme Court said that I couldn’t do this, but I’m doing it anyway.” That wasn’t quite true. He went through a different avenue, and that avenue involved the Administrative Procedure Act. There’s a paradox here, though, in that, under this ruling, practically speaking, the first avenue, that is, not using the Administrative Procedure Act, just doing it as a president, is going to be easier for presidents to get away with than running through all of the hoops, because the Court has said, I think correctly, that in that case, if you’re a lower court judge, you can’t issue a nationwide injunction, even if what the president’s doing is flagrantly illegal. But in the second case, where the APA is involved, you can. And I just worry, this isn’t a legal point, this is more of a structural point. I just worry that unless Congress gets its act together, we are going to see presidents doing crazy things for quite a long time before the courts get involved.

John Yoo (20:32): I think that’s right. It’s because, something I hope we’ll get to later in the podcast, it’s because Congress has delegated such enormous power to the president and to the agencies with almost no standards on how they use those powers, right? This is an invitation for exactly what you described, Charlie. And the harder thing, which I think we didn’t quite get to enough in the case, in both the Biden student loan case and then the early case against DACA, is that presidents can achieve a lot by not doing anything, by being passive. Biden essentially saying, “I’m just not going to collect loans.” President Obama is, “I’m not going to enforce the immigration laws.” That makes it even harder for the courts to force a president to do something. And as you say, so then it really is only up to Congress to fix the problem and go to the American people and say, “Support us in our efforts to get the executive to actually execute the laws.”

Richard Epstein (21:25): I think we can do something better than that, John. The proposition that I gave was that you do not have, in the original case, any authoritative decision, and so you do not allow a particular judge to make a particular judgment. But in this particular case, if Biden comes back where the Supreme Court has, in fact, issued a definitive ruling against him, and people now want to say that they could split a hair and get around it, I think it is now appropriate for a district court to say, “Look, what the president, look what the Supreme Court did on this at a nationwide level. We’re not doing this on our own authority. We’re doing it on the authority of the Supreme Court, and we’re going to stop him.” And at that particular point, you can say to the other side, okay, run up to the Supreme Court and see if they start to disagree with you. But when we start talking about equitable principles in the 19th and 18th-century variety, they were always flexible. They start off as presumptions. And we certainly have a very good reason for not allowing the random district court judge to make up his own mind. But it’s not a reason that’s available if all that random district court judge, sorry Charlie, is doing is enforcing a decree that was made and issued by the Supreme Court. So I would treat this as the son of a universal injunction and would enjoin it accordingly. So the equitable stuff, as I understand it, is completely different, and I think it’s important to note that in the original Constitution, when they said the Supreme Court shall have jurisdiction over all cases in law and equity, the words “and equity,” when added back into the Constitution, were a major revolution, because now it meant that a whole set of rules on the English side get brought in which are not normally there. They change everything from standing on down. And what happens is, you have to really understand how the flexible positions work, and I was raised in that particular system. Unlike John, I have the benefit of the curse of an English legal education at the beginning, and I think curse is what I call curse. No, no, it is, actually, it has been transformative. Everything from riparian rights under Roman law on forward. Having studied two legal systems is, I think, the single greatest advantage that I’ve ever had in legal education. And I was not aware, when I made that decision back in 1964, just how powerful a situation would turn out to be, ’cause here we are.

John Yoo (23:51): No, John, I think, but I do think that what you raised, Charlie, is a fair objection, but if you start looking at the way in which this thing goes, it’s clearly an effort at circumvention, and there’s already been an authoritative Supreme Court decision. So, I don’t think that the randomness is there. Indeed, I would think that every single judge, no matter where they are, would be duty-bound to say, you can’t run around a Supreme Court decision and hope that you can escape it when we’re around.

Charles Cooke (24:21): I’m going to be henceforth much more precise in my use of the word random, which I used to denote not a Supreme Court justice, but I should have been clearer.

United States v. Skrmetti: Transgender Treatment Ban

Charles Cooke (24:34): All right, speaking of precision in language, let’s move on to United States v. Skrmetti. This was another blockbuster case from the term that just finished. A potted history of it goes a bit like this. Tennessee passed a law that banned the prescription and use of puberty blockers and hormone therapy for the treatment of so-called gender dysphoria in minors. This law was challenged under the Equal Protection Clause of the 14th Amendment, and the Supreme Court ruled 6 to 3 that the ban was predicated on medical reasons and age and not on sex, that it therefore did not discriminate based on sex in violation of the 14th Amendment, and as a result only required rational basis review rather than heightened scrutiny, and then there were a bunch of concurrences that made various points. Justice Barrett, for example, said that transgender individuals are not a protected class per se, and therefore that, irrespective of whether or not this law is based on sex, there would be no other outcome for them but rational basis review as a result. Now, I, as an originalist, as a devotee of original public meaning, think that the Court got this one right. I do accept that it is really quite complicated trying to work out what is sex discrimination, what is related to sex, and what is not in these cases, when you have somebody who is making a claim based on their desire or belief that they are one sex and not the other. And it’s also complicated by the fact that Tennessee’s law was applicable only to people who wanted treatment for gender dysphoria, not who wanted medications to help them conform to the sex they were assigned at birth, as the phrase goes. But I think this was the correct decision. I don’t think the Equal Protection Clause of the 14th Amendment prohibits this sort of law. John, where are you at?

John Yoo (27:22): I think this is of a piece with the way the Court approached the Dobbs abortion question, basically deferring to the states to make decisions about what’s acceptable or unacceptable medical treatment, and in gender, in general, to allow the states to regulate with their police powers on any area where there’s no clear constitutional right that would preempt it. So I think, just like in Dobbs, the Court here said there’s no core constitutional right at issue here, and in this case, actually, conservatives, some conservatives, are upset with the Court here too, because the Court said we’re not going to say one way or the other whether there’s any constitutional group that we’re going to protect with heightened scrutiny for transgender people. And there are some conservatives who wanted the Court actually to say that, actually, these procedures should be completely banned by the Supreme Court. But instead, the Court said, in areas where there’s no clear constitutional right, then we’re going to allow the states, as we do on most other things, to decide for themselves the policy. I think that’s the right decision in terms of our federalism. I think another angle that hasn’t been played up as much in the commentary is that this decision also is an important nod to families. I notice that the law here at issue was to prevent transgender treatment of children. It doesn’t try to prevent adults from seeking these treatments. And I think, so I think it’s of a piece with other decisions this term that also expanded, I think, the right of families to control harmful things that happen to their children. Now, this is an interesting question for conservatives, because I think most Americans think that the protection of the family as an institution is an important state interest, maybe the most important state interest, but it’s not in the constitutional text. The constitutional text talks about the state, talks about individual rights. It doesn’t talk about the right of families, even though we all assume it must. And so, there are a series of decisions from the early 20th century where the Supreme Court creates a right of families under the Constitution. But I think this is a problem for conservatives who believe in the original understanding and don’t see anything in the text about this, right? But I think this has been, this term, if you want to talk about this case, and then ones we’re going to talk about later, about the LGBTQ books and schools, and about age verification for porn sites, this was the term where the family won and formed, shows that more than anything.

Richard Epstein (30:19): I think about this in a slightly different way. So, I’m going to take after Charlie again, which is my new habit. And if we try to go back to the original… Thank God that the pressure is off me at last. Well, you wait, John, you have your turn. What happens is the term about originalism in the 14th Amendment is very much tied up with the structural issues. And I think you could make a pretty strong argument that the 14th Amendment, all the citizenship stuff, was done under the Privileges or Immunities Clause, and that the Equal Protection and Due Process Clauses were only dealing with criminal prosecutions of one kind or another. So they would be utterly inapplicable to this case. To do that, you have to basically get rid of the amount of law that has taken place over the last 150 or 125 years. And nobody’s going to do that. So it is, but that doesn’t mean I don’t agree with that. Yes, I’m just, well, I know you don’t, but we could argue that some… No, I’m saying I have, I think the Privileges and Immunities case is a really strong one. So I just, to agree with Charlie on that. I’m just making clear that I agree with you that it’s probably not going to happen. But that doesn’t contradict my position. No, that is exactly, the Privileges and Immunities is the place where this ought to come. And I think that if you do it through that clause, it’s much more powerful than doing it through the Equal Protection Clause. And what we’re doing is we’re basically compensating for the very restrictive reading of Privileges or Immunities in the Slaughterhouse Case, which was decided in the early 1870s and basically gutted the original constitutional structure. But looking at Skrmetti, one of the things about it is the parental rights issue is simply not involved in this particular case, and that’s surely the much stronger claim, relationship to this, and both to Mahmoud. You could say that, look, I’m the parent of this case, I turn my children over to the state only for limited purposes, and unless I’m committing some form of abuse and neglect, which is a customary ground for intervention, you can’t touch me. But they didn’t do that, and so what happens is all the question of parental controls are out of it, and then you have to figure out whether or not the treatment given to one kid is not the same, and the Equal Protection argument, I think, falls on this simple proposition: everybody agrees that the disease, the treatments that you give to boys and to girls, are appropriate to their sex, and this is not a case in which we’re saying we’re going to prohibit this transformative surgery to girls and allow it to boys, it’s the same rule with respect to both of them. And if that’s the case, that both of them are prohibited from doing things that are medically destructive, the issue, it seems to me, is very clear, there’s no Equal Protection claim that arises out of these cases. And there is nothing more common, when you start looking at medicine, to have detailed restrictions imposed by the FDA on the particular terms and circumstances under which particular drugs can be used. And if you’re trying to bring somebody back to their original sex, help a boy grow or a girl grow, that’s very different from trying to do the other. Every recent medical discussion, including some that have been published quite recently, have all come up with the same conclusion: that the risk associated with these treatments is much greater than is commonly supposed, and that the justifications for them that have been given in the medical literature by the various transgender organizations are exceedingly weak. That was the result of the Cass Report in England, and there have been recent studies coming out of MIT saying exactly the same thing in the United States. And so, as far as I’m concerned, if what you’re doing here is you have a health and safety issue, what you do is you say, “Look, when you’re an adult and you can make these decisions on your own, and you’re going to have to go through a lot of fairly exhaustive decisions, but we’re not going to allow for an irreversible surgery there.” Now, this is clearly going to be the case if the parents are opposed to the surgery and the state wants to impose upon it. But I think it’s a hard case, but in most cases a credible case, to say it’s a form of abuse and neglect to subject the child to that kind of treatment, given the state of the medical knowledge. Now, if you go back to Skrmetti, the girl involved in the case, she did not want a sex change operation. A mother said, I want my daughter to be more of what she was. I can’t even figure out why that case is there, because I don’t think, since I read it several times, that I got the basic situation over. So, I think, in effect, this argument was easy. The hard arguments are going to come when the parental rights issues are there, and that’s what gets you into Mahmoud. And here, it seems to me, that John has got a point. The parental rights are going to be dominant in that particular case. And so now you have to ask, why are they going to be irrelevant in a case like this? And so, now, remember, many people in this issue actually believe that the state can kind of sequester students in some particular way. It’s not even clear that the real strong believers in this think that parents actually have a veto right over transgender surgery for their children, if they’re, say, 15, 16, or 17 years old. The case is easy. The other problem is extremely hard, and let me just give an analysis. If you’re trying to figure out in the law of torts, and in the basically in the regulation by zoning and so forth, what happens is, legal activities are things that you cannot stop. But if they’re nuisances, you can stop them. So, what’s the definition of a nuisance now becomes a constitutional issue. And it’s exactly the same thing. What’s the definition of abuse and neglect? If it turns out the term is very narrow, then the parent should have their way. If it’s somewhat broader, it goes the opposite way. And so, what happens is, these terms have never been subject to the kind of intense scrutiny that they’re going to get in the transgender context. And there’ll be a lot more litigation. So, I don’t think anybody should assume that the whole question is put to bed by this particular decision. I think it was the wrong issue to grant certiorari on. I think the parental rights issues are much stronger for the plaintiffs than are the Equal Protection issues.

Charles Cooke (36:18): All right. But let me push back on that a little bit. So, just a little bit. Let’s put to one side this question of parental rights. Given that neither case, neither Mahmoud nor the Skrmetti decision, were litigated on those grounds. Doesn’t the outcome of both these cases fit nicely with my view of the 14th Amendment? In other words, you have the Skrmetti case that is litigated on Equal Protection, but we can even pretend it was litigated on Privileges and Immunities, if we want, and you have the Mahmoud case, which was litigated on First Amendment grounds. Now, in one instance, Skrmetti, you have claims being made about constitutional rights which don’t exist. Either there is no Equal Protection claim, based on the Court’s ruling in Skrmetti, or, as you say, Richard, the Equal Protection jurisprudence over the last century and a half is just wrong, and instead the focus should have been on Privileges and Immunities. I don’t know what you would find within that clause, although I think that a lot more litigation should be brought on that, for example, in the McDonald case of 2010, I think that was a Privileges and Immunities case rather than the way that it was handled. With Mahmoud, you’ve got a First Amendment challenge, brought by… Yeah, but, Charles, it was brought by parents. It was brought by parents. But the point is that the Court looked at the question of whether or not public schools burdened parents’ religious exercise by providing no opportunity or notice for an opt-out. Obviously, the First Amendment exists, and even under a Privileges and Immunities reading of the Constitution and the 14th Amendment, the First Amendment would evidently exist in exactly the same way as it does now. So, there’s no contradiction here in the Court’s decision-making, right? Because I never said there was. Here’s how… Now, I was the one who raised this as a possible, not me. Not guilty.

John Yoo (38:18): Here’s a way to think of it. Suppose, in Skrmetti, the state had said, we are banning gender transition, right, it’s not just surgery, it’s also hormone blockers and so on, suppose the state just said, we’re banning all of those medical procedures for adults too, I think it’s a harder case. Does the state have the right to stop you from doing something you and your doctor believe would actually benefit you, but the state thinks it won’t? And then think about the Mahmoud, suppose, instead of this taking place in the classroom, and again, as you point out, Rachel, an opt-out under the Free Exercise Clause from these classes, suppose, instead, the state had said, we are putting these books in the public library, and we’re going to have publicly supported classes at the public library extolling the ideology of these books. I’m not so sure the Court strikes that down either. So, I think that’s why I think the family element, and the fact that it involves children, is so important to the way the Court decides it.

Charles Cooke (39:34): But there’s a lot more coercion involved in making children go to public school with truancy laws and such than there is with government subsidizing a public library, isn’t there?

Richard Epstein (39:40): Yes. But he was talking about a school library. Look, let’s go back to that issue. What happens is, if you go back to the first of these cases, called Tinker, you’re telling students that they have to go to a public school, and then somebody says, can you put any condition on that that you want, so they can’t wear this kind, that kind of hat or armband in protest of the Vietnam War, and the answer has always been, if you’re coercing them to come, there’s some limitations. Here’s the basic problem: suppose it turns out these parents, and remember, they were a very diverse group of parents, said, you are only giving this point of view, we want equal time, so that you express to the students who are not familiar with it what the Muslim, Jewish, and Christian traditions are about that subject, and you have to give them equal time, that would be regarded as a per se violation of the Free Exercise and the Establishment Clauses, both, in the situation. So, the reason why this case is so utterly treacherous is, one side says, we’re not bound by the religion clause, the other side is. So, you can never get an even debate between the two sides on that particular question. And so, just ask yourself, the school board is displaced. Montgomery County gets a new set of principles, and what they announce is they’re going to have every week a session about the religious beliefs of each of the particular stuff. You can’t even do that at a graduation ceremony, and you’re certainly not going to be allowed to do it for this Court here. So, if you can’t do the other side, there’s an utter lack of balance. And the parents here aren’t saying, please proselytize for us. They’re saying, this is just not an appropriate subject for kindergartners. And I think, in fact, that they’re dead right about that kind of issue. And Charlie, what you said is surely correct. Privileges or Immunities certainly included, if you go back to some of the definitions, the ability to raise your own children is one of the natural rights. I wrote this long article on that particular subject some time ago, and I think that that’s clearly the correct rule. And so, for example, if you have a child and you want to take them out and proselytize with them, can the state say, no, no, the child is not allowed to be out after 7:00? Well, in a case called Prince, back in the 1940s, they said you could do it. But I think today, those decisions which limit parental control or guardian control are much more suspect. But the basic asymmetry in this case, I think, is the hidden difficulty. Any one of these parents, if they tried to have their religious views expressed, couldn’t do it. Justice Sotomayor says, at least five times in the dissent, this is just mere exposure to this stuff. Well, that’s just wrong. It’s indoctrination, not exposure. But if it were mere exposure to religious liberties, you couldn’t bring them into the school under the separation doctrine. So, you never want to have a system where there are two competing ideologies, one of which is banned for constitutional reason, and the other is given free flow.

John Yoo (42:29): So, I thought the dissent was… Can I just say, I love the idea of Richard and his kid proselytizing people in the neighborhood about the virtues of Roman riparian law. This is what makes America so great.

Richard Epstein (42:42): Absolutely, John. And, in fact, we do that, because I’m sitting here looking over Long Island Sound. And the number of times that the riparian rights issue has come up is actually very, very large. Everybody teases me about Roman law, which I’m duly honored. And then, when you start seeing a lot of these cases, it turns out people go back and start talking about the Roman law principles. I would just hope you were as abused as much as a Jehovah’s Witness going… I won’t be, no, I mean, as I said, the single most distinctive feature of my warped, as you would say, my warped worldview, is I was trained first in the civil law and the old English systems before I studied modern American law, and it leaves a trace on you, it’s like baptism, right?

Free Speech Coalition v. Paxton: Age Verification for Pornography

Charles Cooke (43:27): All right, well, another case that intersects with children and adults and the Constitution was Free Speech Coalition v. Paxton. Now, in the last few years, a bunch of states, including Texas, which was involved in this case, have passed laws that require anyone who wishes to visit a pornography website on the internet to have their age verified. Now, this was litigated. There are a host of cases, most from the 1990s, on the internet, and then there are earlier cases, one famous from the ’60s, Ginsberg v. New York, on pornography. The basic contours of this case were that the plaintiffs, those who represented the pornography websites, suggested that the Texas law ought to be considered under strict scrutiny as a violation of the First Amendment. And Texas said, “No, no, no, no, no. It should be merely rational basis, because pornography on the internet is a different case than, say, viewpoint discrimination.” And the Court split the baby and said, “Nope, we’re going to apply intermediate scrutiny, and under intermediate scrutiny, Texas’s law survives and is not a violation.” Now, I have a few questions about this. I didn’t read anything in the majority opinion that I found particularly objectionable. I was slightly primed to, not because I have a problem with keeping children away from pornography, but because I think some of the designs of some of these laws are a problem for various internet technical reasons we don’t need to get into on a law talk podcast. But I read the majority opinion, and I thought, yeah, this mostly makes sense. But I did have a couple of questions. I wonder if either of you want to take on, or if you want to ignore them and talk about something else, that’s fine, too. Why doesn’t this fall under a viewpoint discrimination rubric? Why is this not treating a particular type of speech differently? Now, I accept the originalist argument that pornography is not the freedom of speech as originally defined, but the Supreme Court has historically included it in many cases, and no one really pushed back on this in this case. So, why doesn’t it have a viewpoint discrimination problem? And was intermediate scrutiny the right answer, or is that just sort of putting your thumb on the scales, as Justice Scalia used to argue? So, you can get to the conclusion you want.

Richard Epstein (46:22): You want, look, if you start with, I’ll take this one first. If you start with this situation, and you start going back to the originalist version, and they talked about freedom of speech, it was a code word which covered all sorts of things like music, art, politics, and the rest. But pornography was illegal in every state in the union, and there was no constitutional challenge to it. And so, at that particular point, if the conduct is illegal, it turns out it doesn’t get any kind of scrutiny under the First Amendment, and that was the origin, and then, slowly, what happens is we have these decisions on pornography and obscenity and so forth, and now it’s lifted a little bit, and you give them less scrutiny. So, the answer is one or the other. But I would not treat this as a pornography case. I would treat this, as John is going to tell me, rightly, I think, that it’s a parental rights case. Do you want your children to be able to watch pornography if their parents are against it? And I think the answer to that question is no. And so, therefore, trying to have an age verification is a respectable means of trying to enforce that particular situation. And I would think that that would even survive strict scrutiny, given the nature of the activities involved and so forth. And so, to give you another example, suppose it turns out what they said is, before you can listen to a presidential debate, you have to be 18 years of age. I think most of us would describe that as per se unconstitutional. So, you have to look at the history of the underlying substantive behavior to see that the First Amendment stuff is being responsive to that. So, I regard this as a perfectly sensible case. And when a case is perfectly sensible, I don’t like to find constitutional ways to override them, because I think public health, safety, and morals are the traditional police power justifications, are accurately called into play in this case.

John Yoo (48:17): Yeah. I think, Charlie, again, so, I would just say, think about what the Court would have done if this law were not targeted to protect children or to reinforce the rights of the family to protect children. Suppose it had been, you know, we want age verification for everyone who uses a pornography website, just ’cause we want to know what people’s ages are. Or suppose we said, you know, the government said, we don’t want old people. We want to protect the elderly from these dastardly websites. So, I think that, because it’s children. Yeah, yeah, oh yeah, Mrs. Epstein better be putting some kind of content blocker on your internet, your computer, Richard, if she hasn’t already. If she hasn’t already, tell her to call me, and I’ll tell her how to put one on. But, actually, no, she don’t get her involved in computer manipulation. She’s in rebellion. Actually, Charlie’s a computer genius. He can do it without you even knowing. Charlie, I will send my wife in contact with you. But I think Charlie’s right. Otherwise, there would be a very good content, you know, content, I’m sorry, content restriction case to be brought. And I think the other interesting thing here is, again, like, but the Court, you’re right, Charlie, the Court doesn’t really express it that way. They don’t bring forward the family rights thing, but I think it makes a big difference in the decision of the case, as Richard said, right, they look at the original understanding, and they decide obscenity is not really protected by the First Amendment. That’s actually an interesting direction about the Court on the First Amendment, because, generally, the Roberts Court, one of the things they agree on, is very robust protections for the free speech and the First Amendment in general. But I wonder if this is a sign that they’re going to start defining free speech as primarily political speech and start to reduce protections for things like obscenity, reduce protections for things which might not be at the core of the First Amendment, like, you know, pornography. I think that’s something that you could see, this Court’s sort of libertarian and conservative directions coming into conflict.

Charles Cooke (50:37): If you asked me, if I were all nine justices, this case would have been quite simple, because my conclusion would have been that, under an originalist reading of the First Amendment, pornography is not protected, and therefore there is no case before the Supreme Court, because there’s no claim. But, of course, they didn’t do that, and none of them said that. So, I think it’d be very interesting if they did. But I was surprised that even Justice Thomas didn’t make this point.

Richard Epstein (50:59): I think we have to talk a little bit about methodology and originalism. What happens is, originalism is great until it turns out that you get an unbroken line of decisions which essentially changes the direction and fabric of American law, at which point one tends to be a non-originalist. When we talked about all the stuff with the Equal Protection Clause being unrelated to criminal activities and so forth, that has been around as the dominant position since the 1880s or 1890s. And people like me and you, Charlie, are not going to be able to say, “Oh, no, it doesn’t apply there.” And, remember, no Privileges, Immunities. So, all of a sudden, you get the voting cases. Now, if you try to put the voting cases in under the 14th Amendment, what’s going to happen to them? Well, they’re going to die, because there’s a case called Minor v. Happersett, in which it was made manifestly clear by a unanimous Supreme Court that voting rights are not protected under the 14th Amendment. They are not an incident of citizenship. Well, that’s what happens if you want to go back to Privileges and Immunities. So, these guys are not going to do it. And I call this the prescriptive constitution. It’s based upon the same notion you have in Roman private law, which is, if you do a wrong thing for long enough, all of a sudden it becomes a right thing. And statutes of limitations, that’s totally wrong, Richard. That does not apply to constitutional interpretation. Take everything you like from the common law, Roman law, and say, there’s no adverse possession in the Constitution. Otherwise, segregation would have been constitutional.

John Yoo (52:16): No, no, no. You have to be much more careful about how it is that you do. Well, segregation went on for 60 years, and it was agreed on by all three branches. You can’t allow, like, practice to change constitutional…

Richard Epstein (52:34): I didn’t say that you could do it uniformly. I said, what happens is, some of these changes go on, and you accept them. Others, you want to reject them, and you have to explain. The question is, which one do you accept, and which one?

John Yoo (52:52): Well, I’ll give you an… I would say you don’t accept any of them. No, John, you don’t believe that any more than I do. I would give the original understanding primacy over incorrect subsequent interpretation.

Richard Epstein (53:06): Okay. So, there’s no jurisdiction in federal court over corporations.

John Yoo (53:13): I’ve always actually wondered why, whether the 14th Amendment does not apply to corporations. I don’t see why corporations should be considered individuals with constitutional… I mean, but I’m talking about…

Richard Epstein (53:20): Happy to get rid of that. No, the diversity jurisdiction. I’m just talking about why corporations aren’t individuals that have constitutional rights at all. So, they wouldn’t fall under it.

John Yoo (53:31): Even, I would make it even easier for you. The obscenity cases that we were talking about here, which is an interpretation of the First Amendment that goes back 50 or 60 years, would be no more difficult to overturn than was Roe.

Richard Epstein (53:43): I agree with that. Yeah, I mean, I think Roe is, of course, clearly and manifestly wrong. But one of the things about it, of course, if you overturn that, it leaves it to the states, and it was a disaster for the Republicans in doing so. But now, suppose what you wanted to do was to say, look, for the last hundred years, everybody got it wrong when they allowed corporations to sue in state court or in federal court, rather, and are we going to invalidate every one of the decisions that were made in these cases, on the ground that there was a want of jurisdiction, when it came…

John Yoo (54:12): They’re based on an incorrect interpretation, I agree, it’s very difficult, it’s impossible…

Richard Epstein (54:19): But, but, but, okay, but what we’re talking about here is whether or not that view could be given path dependency, practically overturned. We’re not talking about whether or not that has now made it what the Constitution means. And I think that that is a big distinction. I don’t think it makes it right. I don’t think it makes it the original meaning.

John Yoo (54:39): This is the same argument, Richard. Richard, this is the same argument that segregationists made. They said, segregation has become so hardwired into the southern political, legal, and cultural systems, that you can’t uproot it.

Richard Epstein (54:51): No, but your argument is, it’s just so hard to uproot something practically that we have to leave it in place. I didn’t say that every time there’s an established convention that’s for a long time, it’s got to be preserved. I said, whenever you have an established protection, you have to figure out whether it’s one that ought to be preserved or not. What’s the test that I would do? Well, how do you, your test? I’m going to give it to… No, it’s not. In the segregation cases, of course, what was going on was an abridgement of individual rights of a very strong nature. In the cases that I’m talking about, what you’re trying to do is to create a system in which a classical liberal model, which is the basic model of the time, is going to be preserved, because, I mean, if you’re going to do this, John, there are going to be no Article I courts. That’s a contradiction in terms.

John Yoo (55:36): But, agree with that, too. There shouldn’t be any Article I…

Richard Epstein (55:41): You know, all you’re doing is saying things that me and Charlie would like to happen, right? I mean, I know, you’re next, you’re going to say, oh, and you shouldn’t allow agencies to issue regulations raising taxes. I’m like, bring it, tell me something more that’s going to, so terrible, that’s going to happen.

John Yoo (55:58): I’m just telling you that, if you look at some of them, the point about regulations, of course, is, the non-delegation doctrine is very much a part of the traditional original Constitution situation. So, just to take one particular…

Richard Epstein (56:09): Can I just point out, though, Richard, that what you’re doing is, you’re saying, the precedents that I agree with, and the ones that I don’t agree with, are dictated by an external moral system that I have to the Constitution. I’m going to pick and choose.

John Yoo (56:23): No, ’cause you said, the ones, some are consistent with the classic liberal Constitution, and some are not consistent with the classic liberal Constitution. And it’s your view of what is the liberal, classic liberal Constitution?

Richard Epstein (56:35): No, John, it’s not that. It’s the view of everybody before me who’s passed on this issue for the past 150 years. That’s why it’s prescription. So, do we go back to the original view of the Electoral College, where it turns out they’re deliberative bodies and so forth? Well, we got past that in 18-something-or-other, and by 1950 was ratified. I’m not talking about Richard Epstein as being the sole protagonist on this. I’m talking about a very established, powerful tradition, shared by just about everybody.

John Yoo (57:04): Still, it’s still a moral view that it’s external to the text.

Charles Cooke (57:11): Don’t think, though, that acknowledging that some originalist ideas would be more difficult than others to put into action because time has passed, I don’t think that’s a criticism of originalism, so much as it’s an acceptance that we are imperfect, as…

Richard Epstein (57:23): No, it is a very important one, because it turns out, there are methodologies that have been used by everyone, not just me, which, essentially, when you have a deviation from the originalist position, which is baked into everything that happens thereafter, you don’t change it. So, how do you get to Article I courts? It’s because of the evolution of the customs party. And what happened is, around 1810 or 1812, instead of it being an internal position, they created an informal court. And then, when somebody says, “Oh, let’s get rid of that particular court,” what the Supreme Court did is, it fudged, and it says, for public rights, we don’t get, continue to lie about it, because the practical consequences were…

John Yoo (58:02): Look, this is the way every legal system has done, and so, go back to statutes of limitations, ours…

Richard Epstein (58:15): No, not on the statute of limitations, problem is very simple. You trespass on somebody. What has this got to do with that, is not…

John Yoo (58:20): This is my point. The problem with the way you’re doing this is, you are pulling these elements from other legal systems that are not constitutional, American constitutional. You’re saying, we should adapt them and throw them into the Constitution, ’cause that’s the way we should reason.

Richard Epstein (58:38): John, I’m not saying we should. I’m saying we have, and that everybody who was faced with the question of what you do, when they have to decide, stop it or not stop it, has not decided to stop it. So, today, in our kind of strange American Constitution, you could not get anybody to create an Article III court. All new courts that are going to be created are going to be Article I courts. It’s not because Richard Epstein said so. It’s because lifetime tenure became just such a very difficult problem that nobody wanted to do it, and we’ve done it for a long time. The Interstate Commerce Commission was surely illegal in some sense, back in 1887. But it doesn’t get challenged until 1935, you know, with Humphrey’s Executor. And nobody wanted to go back and say, every one of the subsequent statutes dealing with that topic are unconstitutional. You’re making it appear as though it’s Richard Epstein is describing himself. What Richard Epstein is trying to do is to describe the way the other decisions done. And the reason why Plessy never lasted is because it was thought to be antithetical by everybody to fundamental notions of individual rights. It wasn’t just Richard Epstein who wanted to say that. But diversity jurisdiction for corporations, come on. If you got rid of that, so forth, you can’t possibly want to do that. And nobody does. And we have the same problem, issue after issue.

Consumers’ Research v. FCC: Non-Delegation Doctrine

Charles Cooke (1:00:06): And what happened? Well, you know what? John Yoo thinks that we should move on to another case. Well, I think John is going to be wrong. Let’s put some meat on the bone with our final case. We can talk about Consumers’ Research v. Federal Communications Commission, which is, in some sense, absolutely relevant to what we were just discussing. So, the Telecommunications Act of 1996 contained permission for the FCC, the Federal Communications Commission, to administer a universal service program. And what that means, in practice, is that, if you pay a telephone bill in the U.S., you pay a small monthly fee on that bill, and that money goes into a pot, and the universal service fund, as it is called, is then used to give discounts and breaks and subsidies to people who don’t have much money, to expand infrastructure, connect hospitals, and so on and so forth. And the amount of money that’s collected now is enormous. I mean, it’s about 10 billion dollars a year. Now, the problem here, from the perspective of the plaintiffs in the case, and I must say, from my perspective as well, is that this fund is administered, and the money is raised into it, by a private organization, called the USAC, the Universal Service Administration Company. And the claim that was made is that Congress is raising funds, taxes, even, on Americans, well, without doing it directly. It’s handed over the responsibility to this organization, and this organization, in some cases, has handed that responsibility over to private entities. So, you have a delegation of a delegation, and the argument here was that Congress simply is not allowed to do that. That the taxing power is given to Congress, not to some, here’s the word again, random organization that is outside of the legislature. But the Court let it go. They said that Congress is in charge, because it made the delegation. It could pull back the delegation, or add guidance, or change the system at any point, and therefore, it’s fine. And Justice Gorsuch wrote a, I think it was 42-page, 36-page dissent, very long, which was very dear to my heart, in which he laid out the case. I think this should have gone the other way. I was not surprised, but I was very disappointed. Richard, why do you think, after all these years, this should have gone the other way?

Richard Epstein (1:03:00): Well, I mean, I thought you would, look, I mean, the original mistake was the Thomas mistake, when he said that you could have a taxing power that you give to some private party to levy. And I think that those cases, saying that you could do it to the FTC, and out of the money, was just wrong. Go back to the original delegation case, it was the Hampton case, and people forget what the delegation was in that case. It was a situation where you had a mechanical set of rules that allowed you to determine, with great deal of specificity, formulas for putting tariffs on different goods coming in from different countries. And that’s, essentially, if you don’t allow that form of delegation, then nothing could run. This goes back to the old post office case. Congress can set up a post office situation. Does it really have to specify, in the year 2000, where each particular post office is going to go in each city? No, you can delegate that out, subject to parameters. But, in this case, it’s just a huge slush of transfer of money from one group of individuals to another. And that’s so far removed from the kinds of technical issues that are before. There is no prescriptive constitution on this issue, because the worst of the cases came down two years ago. I can’t think of any case that was decided a hundred years ago, or more, in which the kinds of delegations that they’re talking about now are there. So, I think, in effect, the structural arguments that you make are correct, and that this is a case where the prescription is irrelevant. And so, the originalist arguments on non-delegation are there. And why are they important? For a very simple proposition: if A gives a body a delegation, the only permissible delegations, in my view, is that the recipient body has to have the same distribution of preferences as the body that gave the delegation, or otherwise, what delegation does, is it allows a majority to solidify its position through an agency, and to skew the balance that Congress gave. So, it’s a very powerful functional explanation for what you want. And so, this particular case, Gorsuch is, in fact, correct. So, the reason I’m an originalist on this case is, A, the structural arguments are really strong, and B, there’s no prescriptive arguments going against it, as there are in all the Article I jurisdiction cases.

John Yoo (1:05:22): Yeah, I agree with both of you. I think there is a non-delegation doctrine, and I think it would have been easy in this case to say, one of the things Congress can’t do is delegate the power to tax, and, you know, I always thought there were two powers, and I wonder what’ll happen next, that Congress can’t delegate: the power to tax, and the power to impose criminal punishments. So, I can’t think that the Court really is going to be this loose on delegation, given how, it’s maybe its primary, the primary legacy it will have historically, will be that it sought to bring the administrative state within the tripartite structure of our government, and not let it sit out there, uncontrolled. So, I think it’s really, I think what the Court did is, it took a breather. You know, there’s so many other issues that it’s been deciding these last few years, right? You look back at the string of conservative victories. You know, we’ve talked about Dobbs. You could talk about Bruen and gun rights. We talk about the expansion of religious liberties. We could talk about the expansion of presidential power. But I think this term, the Court, you know, was focusing on, again, on these cases, I think of as sort of pro-family. And they just wanted to call pause in its effort to bring the administrative state to heel. But I think they’re going to continue in the future. I don’t think these are going to be permanent or long-lasting decisions.

Richard Epstein (1:06:49): I think that I disagree with that. If you want to figure out the area of the most wretched Supreme Court jurisdiction, it’s all the cases that have to do with the internet, First Amendment, NetChoice in those cases. The Supreme Court has no idea of what’s going on in any of those cases. And I think what has happened is, when they don’t understand something, they think there’s no particular harm in doing it the way they’ve done it. And I think, in effect, that what you see here is a very instructive situation, in which the middle three have moved left, and they’re not going to move back right again. And so, I think, in effect, there’s a 6-3 Court on this issue, the opposite way.

Charles Cooke (1:07:34): Do you think, though, that if we had a non-delegation case, the facts of which were comprehensible to the justices, this would come out differently?

Richard Epstein (1:07:41): I don’t think these guys are interested in doing anything, any more than Scalia was interested in doing it with respect to the criminal justice system. I think they’ve thrown up their hands. I see five justices who said that they want to reinvigorate the non-delegation doctrine, just, they’re searching about for a test, and you think they…

John Yoo (1:07:58): No, no, no. I’m saying, they’re looking for… No, no, no. I’m saying, they’re looking for a legal test they can use to give the non-delegation doctrine more force than just the intelligible principle idea, which is…

Richard Epstein (1:08:11): Well, I gave you a principle, which is that delegation, essentially, has to make sure that the delegated body has the same set of preferences that the delegation… Maybe they’ll adopt that, although they might find that hard to do legally. It’s exactly the opposite, and, indeed, it was done in that particular fashion. I’ve spent a lot of time, they’re not adopting your test, but they, what they’re doing is, they’re not adopting any test, which will stop.

John Yoo (1:08:35): I know, for now, Richard, my point is, they’re not doing it now, but in a future case, they may well find a test they want to impose, and they can’t. They didn’t want to do it in this term.

Richard Epstein (1:08:47): Well, I just don’t believe they’re going to do it. I think, actually, this is Justice Roberts in his home base. This is what he believes. This is what he wants to happen. And so, unless he’s going to switch along, it’s going to be 6-3 all the way down. So, I mean, the Supreme Court, it does have the squishy Republican middle, essentially, is much more pro-redistribution through administrative action than otherwise. Justice Roberts had the perfect chance to do something with the NFIB case on some of these issues, about what counts as a state fund and so forth. And what he did is, he tortured a statute to bring it back to a congressional situation. I think he’s hardwired on this issue. He’s had this view since 2005. And you’re not going to persuade him on that, any more than you’re going to persuade me, John, on the prescriptive constitution.

Conclusion

Charles Cooke (1:09:39): All right. Well, next time on Law Talk, we will all once again try to persuade one another. We probably can’t persuade John Roberts, who may or may not listen. If he is listening, hello. But to the rest of you, we will say goodbye. Thank you so much for listening. Thank you to Richard Epstein. Thank you to John Yoo. I am Charles C. W. Cooke, the host. And this is a production of Civotas Institute at the University of Texas Austin.