80 U. Chi. L. Rev. Dialogue 1 (2013)

handle is hein.journals/uchidial80 and id is 1 raw text is: Tushnet's Lawless World
A Response to Mark Tushnet, Book Review, Epstein's Best of
All Possible Worlds: The Rule of Law, 80 U Chi L Rev 487
Richard A. Epsteint
I did not pick this unfortunate fight, but it is my regrettable
task to have to respond to Professor Mark Tushnet's Review of
my book Design for Liberty: Private Property, Public Administra-
tion and the Rule of Law.1 Professor Tushnet regards Design for
Liberty as a quixotic endeavor to reform the world, worthy of
Glenn Beck,2 driven by a political naivet6 that reminds him of
an improbable cross between Candide and Mr. Micawber.3
Throughout his Review, he uses his not inconsiderable rhetorical
skills to mock a book whose message and argument he does not
A grizzled hanger-on from the largely defunct Critical Legal
Studies movement, Professor Tushnet's subpar performance
stems from a combination of three interrelated defects: his in-
grained skepticism of legal rules; his narrow intellectual focus
that incorporates nothing outside of constitutional law; and his
inveterate intellectual laziness, which makes it impossible for
him to stick with a problem long enough to understand it. Pro-
fessor Tushnet has always played an enfant terrible who believes
that all efforts to create rule-bound structures are bound to dis-
integrate in failure. On narrow focus, his bibliography reveals a
person who, over his thirty-year academic career, has not written
t Laurence A. Tisch Professor of Law, New York University School of Law; Peter
and Kirsten Bedford Senior Fellow, the Hoover Institution; James Parker Hall Distin-
guished Service Professor Emeritus of Law and Senior Lecturer, The University of Chi-
cago Law School. My thanks to Peter Horn and Benjamin Margo, NYU Law School Class
of 2014 for their excellent research decision on an earlier draft of this Response.
1 Richard A. Epstein, Design for Liberty: Private Property, Public Administration
and the Rule of Law (Harvard 2011).
2 Mark Tushnet, Epstein's Best of All Possible Worlds: The Rule of Law, 80 U Chi L
Rev 487, 510 (2013).
3 Id at 487-88, 513.


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