Morgan, thank you for calling me to task on this. Here's what our good friend Richard Epstein means by "easy" cases and "hard" cases. Easy cases, to him, are those problems that present scholars with a limited range of issues, dilemmas, and alternatives through which to sift. These include issues like freedom of contract and other basic underpinnings of our political-economic structure. My personal reading of Epstein suggests that "easy" cases might be extended to those with practicable solutions. Hence the devolutionary aspect I suggested in my last post. I think many of our big political battles (drugs, gay marriage, tax cuts, etc.) when reduced to a local scale, become "easy" cases. "Hard" cases, for Epstein, include issues like the proper term length for a copyright or patent. These questions perplex even the best scholars, and if too much time is spent on them, we'll lose valuable energies that could be used in solving other problems. Again, my reading suggests that these problems could also be the big political battles at a larger, national scale, where we are more likely to "lose."

      I hope this brings the issue into sharper relief. Personally, I think Epstein has a lot to say and his argument should be given some weight. The real dilemma, for me, is the issue of how far we carry out these kind of economic analyses.

Daniel Corbett