An Example of Academic Out-of-Touchedness

The discussion of why liberal and even some conservative (see this hissy fit by Charles Fried) academics were unable to see the plausibility of the constitutional challenge to the individual mandate reminds me of an anecdote from my law school days.

I was at a Federalist Society student conference chatting with a prominent professor.  We got into a discussion of the Takings Clause, and he told me about the various theories of Takings he goes through when he teaches the clause.  Conspicuously absent was any mention of Richard Epstein’s theories, even though Epstein was one of the most cited law professors in the country, and had published just a few years earlier a widely-discussed book on the subject.

So I asked this professor whether he covered Epstein’s theories at all.  He said, “no, I don’t even mention them.”  I asked why.  He said, “I don’t think anyone takes Epstein’s book seriously.”  This, mind you, from a professor who was something of a libertarian fellow traveler himself.

Flash forward a year, to my clerkship interviews.  I applied to both Democratic and Republican appointees, but only Republicans gave me interviews.  With one exception, every one of the judges seven or eight judges I interviewed with, including some of the most prominent judges in the country, asked me what I thought of Epstein’s book.

Now I’m sure that they asked me this in part because it was pretty obvious that I was libertarian-minded, and this was the most prominent libertarian law book of the day. Still, it was clear from the questions that this book that “no one” was taking seriously in liberal-dominated academia was being taken very seriously among elite conservative jurists.

(As an aside, ironically the one judge who didn’t ask me about Epstein’s book was Clarence Thomas, who wound up having the book waved at him by Joe Biden at the beginning of his confirmation hearing).