Richard Epstein Self Destructs

What is the right way to deflate a dubious expert? It may be counter-intuitive, but the best approach is often just to let the expert talk.  The New Yorker’s Isaac Chotiner provides an outstanding demonstration that art in a recent interview with Richard Epstein, a professor of law at New York University and a fellow at the Hoover Institute, whose essay minimizing the risks of Covid-19 may have influenced President Trump’s views on social distancing. On March 16, on the Hoover Institute website, Epstein challenged the prevailing epidemiological model, and proposed instead that there might be only 500 deaths in the U.S. from Covid-19. Epstein’s contrarian post attracted a lot of attention, especially when it began circulating in conservative circles, including the White House, perhaps playing a part in President Trump’s announced goal of ending social distancing by April 12. Fortunately, Trump has since extended the social distancing guideline until April 30, on the advice of Dr. Anthony Fauci. And Epstein later revised his projection of deaths upward to 5000 -- 95,000 fewer than Dr. Fauci's estimate -- after  number his original 500 already been exceeded, blaming his earlier estimate on a math error.

Chotiner’s interview with Epstein was published today. It is fair to say that Epstein made fool of himself, with exchanges such as this (Chotiner’s questions in bold):

I know, but these are scientific issues here.

You know nothing about the subject but are so confident that you’re going to say that I’m a crackpot.

No. Richard—

That’s what you’re saying, isn’t it? That’s what you’re saying?

I’m not saying anything of the sort.

Admit to it. You’re saying I’m a crackpot.

I’m not saying anything of the—

Well, what am I then? I’m an amateur? You’re the great scholar on this?

No, no. I’m not a great scholar on this.

Tell me what you think about the quality of the work!

O.K. I’m going to tell you. I think the fact that I am not a great scholar on this and I’m able to find these flaws or these holes in what you wrote is a sign that maybe you should’ve thought harder before writing it.

What it shows is that you are a complete intellectual amateur. Period.

O.K. Can I ask you one more question?

You just don’t know anything about anything. You’re a journalist. Would you like to compare your résumé to mine?

There is much more in that vein (although not so colorful), as Chotiner confronts Epstein with empirical and logical flaws in his essay, and Epstein makes increasingly rambling and confused rationalizations. Here is another of his boastful self-justifications:

No, I’m trained in all of these things. I’ve done a lot of work in these particular areas. And one of the things that is most annoying about this debate is you see all sorts of people putting up expertise on these subjects, but they won’t let anybody question their particular judgment. One of the things you get as a lawyer is a skill of cross-examination.

Epstein went straight from law school into law teaching. It is all but certain that he has never cross examined a witness in his life. He definitely has no actual skill in cross examination, and his claim is just one more example of his exaggerated expertise.

Some people will read the devastating interview and compare it to a cross examination, but that would be wrong. In fact, it would be more accurate to call it a deposition. In cross examination, the goal is control the witness’s testimony through leading questions that require short answers, preferably “yes or no.” Chotiner did not attempt this, nor should he have.

In a deposition, especially of an expert witness, the goal is to get the deponent talking as much as possible, using open-ended questions, both for discovery (finding out what the witness knows) and strategy (provoking the witness to go out on a limb). The most effective technique in the deposition of an opposing expert is to invite self-justification, which will expose the gaps and exaggerations in the witness’s knowledge, understanding, or background. That’s what Chotiner did to Epstein, and he did it beautifully. Epstein accused him of unfairness and disrespect, but you can see that Chotiner remained composed and respectful, while Epstein flew off the handle in response to quite legitimate questions. Perfect.

Plug: My book on this subject is Expert Testimony: A Guide for Expert Witnesses and the Lawyers Who Examine Them.

Comments

[Anon]

This law professor got caught pontificating about something he doesnt know anything about, then reliably goes to the "check my CV" defense. What a hack.

[Steven J. Harper]

Don't underestimate his influence.

Back in 2013, The Wall Street Journal allowed Epstein to review -- and trash -- my book, The Lawyer Bubble - A Profession in Crisis, notwithstanding his obvious conflict of interest: In the book, I named him as someone who resisted successfully Kagan's return to her tenured professorship at U of C after serving as President Obama's solicitor general. Epstein had objected that Kagan had an insufficient body of scholarly work.

In a brief passage, I cited Epstein as an example of some academics who resisted efforts to give law students real-world training from experienced practitioners.

Epstein's harsh review was the lone outlier among dozens of professional reviewers who praised my book. In the new afterward to the 2016 paperback edition, I responded to his specious criticisms of the book.

[twbb]

I hate to see Epstein thoroughly humiliate himself like that, but...nah I'm just kidding, I love seeing Epstein thoroughly humiliate himself like that (and the Hoover Institution) given his pernicious role in helping dismantle the regulatory state. I'm betting Cass Sunstein is also happy Epstein is embarrassing himself in public given Sunstein's own similarly idiotic attack on "coronavirus panic" that predated it.

I'm wondering if law-professors-humiliating-themselves is kind of a natural result of the lack of peer review in legal academic literature. Maybe if, say, scientist reviewers had had the opportunity to shred apart Epstein's prior forays into amateur evolutionary theory, his reputation wouldn't be in ruins now.

[Steven Harper]

Don't underestimate his influence.

Back in 2013, The Wall Street Journal allowed Epstein to review -- and trash -- my book, The Lawyer Bubble - A Profession in Crisis, notwithstanding his obvious conflict of interest: In the book, I named him as someone who resisted successfully Kagan's return to her tenured professorship at U of C after working in Clinton's White House. Epstein had objected that Kagan had an insufficient body of scholarly work.

In a brief passage, I cited Epstein as an example of some academics who resisted efforts to give law students real-world training from experienced practitioners.

Epstein's harsh review was the lone outlier among dozens of professional reviewers who praised my book. In the new afterward to the 2016 paperback edition, I responded to his specious criticisms of the book.

[Steve Diamond]

It's not the self-destruction of Epstein personally that matters most, I think, but the exposure of the severe limitations of his Ayn Rand libertarian "equilibrium" economics. It is the illusion that that ideology engenders (to wit, some kind of invisible hand will nudge us back to the mean) that is, in part, responsible for the mess we're in.

As an example, take this comment by Dr. (a real doctor) John Swarzberg of the UC Berkeley School of Public Health:

"I’ve been working in hospitals since 1970, when I graduated from medical school. At that time, hospitals were less focused on the bottom line. The business model now is driven by the concept of efficiency, and that translates to the idea that empty beds are not efficient. So you want to make sure hospitals are filled up, that we have only as many beds as we need at any given time as predicted by past experience. That means that overall we have far fewer hospital beds than we used to.

"And it’s also not efficient for hospitals to have extra ventilators or masks and other kinds of personal protective equipment (PPE). In general, it’s much more efficient to have a supply chain that sends you items just when you need them. And that might be sufficient for normal times. But this crisis demonstrates how short-sighted that kind of thinking can be. It’s a big reason we’re in the position we are in now."

This is a "reversion to the mean" business model that bases itself on data that assumes a normal distribution when, in fact, outliers or fat tail events are far more common than those models predict. Epstein and co. refuse to acknowledge what critics of market efficiency in finance and several other disciplines have recognized for a long time - the world is rough and wild (to borrow from Benoit Mandelbrot) not smooth and continuous.

Oh, and it's not a good idea for law professors to imperiously step on geneticists, epidemiologists, or anthropologists just because they have helped lawyers prepare expert cross-examinations in litigation.

[Jared]

On many intellectual topics, there is a wide agreement on opinion, then there are some outlier "experts." The Republican Party for years, and Trump in particular, have grabbed on to these outlier "experts". On topics like tax cuts paying for themselves. Or climate change. Then the debate becomes "experts disagree" and the press throws up its hands because it does not think it should be the arbiter if 99 experts say one thing and one person says another. Trump has made this trend far, far worse. On many, many topics, the 99 experts are "fake news" and the one guy who tells him what he wants to hear suddenly finds himself in the cabinet setting policy for the nation or getting a prime time show on FoxNews and preaching to millions.

It is one reason for a major divide in our country for many years now, and particular while a little over half the country can see Trump lying to us every day and a substantial minority just living in a tell me what I want to hear world.

[Patrick S. O'Donnell]

I have a brisk, summary critique of the central argument of this paper by Epstein: “In Defense of the ‘Old’ Public Health: The Legal Framework for the Regulation of Public Health” (John M. Olin Law; Economics Working Paper No. 170, The Law School of the University of Chicago, Dec. 2, 2002), in my essay, Toward a Philosophically Sensitive Definition of Public Health Law (available on my Academia page):

Richard Epstein proffers a libertarian (‘classical liberal’) polemic against “broad (and meddlesome) definitions of public health,” arguing the approaches like those outlined above “will in all likelihood be conducive to the ill-health of the very individuals whom it seeks to protect,” for it “frustrates the very ends that it is intended to serve,” while “extend[ing] regulation into areas where it ought not to take place….” Epstein’s alternative model hearkens back to an implausible account of the good ol’ days—before 1937—a time, it seems, when public officials well understood “the profound interactions between public health and private wealth creation” (Epstein 2002). The analogy here is government regulation of the “free market,” where government “interference” is thought to guarantee only perverse economic and welfarist effects. The priority given the desideratum of “private wealth creation” is questionable at best, ignoring as it does the sundry reasons for government and its direct promotion of the common good, as well as its indispensable role in the direct and indirect provision of the conditions propitious for individual development and human flourishing.