The Epstein Affair

A prominent law prof got COVID-19 numbers disastrously wrong.  Then things got worse.

The New Yorker recently published a devastating interview with law professor Richard Epstein. He had attracted their notice by publishing two columns on the Hoover Institution website, the first projecting a total of 500 U.S. deaths from the coronavirus (later raised to 5000), and the second defending his work.  I don’t see any need to add to the chorus of disapproval, but I do want to ask what lessons we can learn from this episode.

How did he go so disastrously astray?  It’s not as if he were a marginal figure in academia.  He taught many years at the University of Chicago Law School. Nowadays, he has appointments at NYU Law and the Hoover Institution in Palo Alto. Epstein achieved fame within certain circles with a 1985 book  published by Harvard University Press.   The book argued that the vast majority of government regulations were unconstitutional takings of private property. Since then, he has continued to champion the cause of libertarianism. He’s a prolific and well-cited scholar as well as a formidable debater. I should add, based on my contacts with him over the years, that he’s a decent, well-intentioned person who doesn’t have much patience for the Trump brand of conservatism.

Epstein’s view of the coronavirus outbreak, however, is wildly different from that of epidemiologists.  In his first post, Epstein relied largely on the assumption that the death rate from the virus would peak fairly quickly and then decline.  He attributed this partly to adaptive behavior by the population — basically people voluntarily practicing social distancing.  However, as support for that argument, he relied on numbers from South Korea and Washington State, both of which had launched vigorous (though quite different) governmental responses.  Thus, we don’t know what the trend would have been without the government interventions.

Epstein’s viral adaptation argument is also flawed. The argument is that less lethal variants of a virus give their hosts more time to infect others, and thereby have an evolutionary advantage over more lethal variants. That may be true, but there’s no reason to think that such a change would take place in a period of weeks as Epstein’s argument assumes. Some viruses like smallpox have remained lethal for centuries on end.

Epstein’s other post  uses the experience of the swine flu epidemic to argue that the “wildly high estimates” by “supposed experts”regarding  the dangers of coronavirus  should be ignored.   Epstein argues that little government intervention is needed because “[a]ll of these choices are done better at the level of plants, hotels, restaurants, and schools than remotely by political leaders.”

You don’t need to be an epidemiologist to spot two glaring flaws in these arguments.  First of all, the coronavirus isn’t remotely comparable to the swine flu, which spread about half as quickly and had about one-tenth the mortality rate. Second, even if we assumed that all individuals and businesses are rational, fully informed decision-makers, basic economics says they would still take insufficient precautions. The reason is that they would take into account the risks relating to themselves, but not the harm done to others if they spread the virus.

There are a lot of other, more detailed critiques that could be made, but the major issues are right there on the surface. It surprises me that Epstein himself didn’t spot these problems. In part, this may be an effect of the rightwing “bubble,” in which people get their information only from other, likeminded individuals. You may have noticed his dismissive attitude toward “supposed experts,” which also reflects a common conservative view of expertise. And of course, there is what psychologists call “motivated reasoning.”  From a libertarian perspective, it’s probably a horrifying idea that there would ever be a good reason for massive government intervention — so of course, any evidence suggesting the need for such action simply must be defective!  It’s probably for the same reasons that Epstein has downplayed the seriousness of climate change.

Epstein is not the first notable academic to make the mistake of assuming that intellectual achievement in one field implies instant expertise in another. Nor will he be the last.  But what makes this episode so disturbing is that his analysis was reportedly influential within the Trump Administration, misleading officials into dismissing the need for an urgent response. Lives may have been lost as a result.

It is also troubling that the Hoover Institution lends its imprimatur to work of this sort.  There are respectable scholars who work at Hoover, but apparently little or no effort is made at quality control. The Hoover’s intellectual credibility is in tatters.

The willingness of the Trump Administration to take its epidemiological advice from a law professor — any law professor — is appalling. The points seems pretty obvious: If you’ve got a constitutional question, ask a law professor.  If there’s a pandemic, ask an epidemiologist.  You’d think our national leaders could figure that out.

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Reader Comments

2 Replies to “The Epstein Affair”

  1. “It is also troubling that the Hoover Institution lends its imprimatur to work of this sort. There are respectable scholars who work at Hoover, but apparently little or no effort is made at quality control. The Hoover’s intellectual credibility is in tatters.”

    It has been for years, and it it’s nice that people are slowly coming around to that realization. The folks at Hoover have always had ideological blinders on.

  2. Motivated reasoning is a hell of a drug, and not just for rightwingers. I think you see it in the hesitation to support mask-wearing, and the now motivated-reasoning pivot that it’s good to wear but only protects others, not the wearer.

    The left probably had a similar problem in its critiques of the Trump’s travel bans related to coronavirus (although Trump’s bans were as likely related to motivated reasoning bias towards xenophobia).

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About Dan

Dan Farber has written and taught on environmental and constitutional law as well as about contracts, jurisprudence and legislation. Currently at Berkeley Law, he has al…

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