Favorite Joke Among Lawyers

New Interview: I spoke with law professor Richard Epstein, whose controversial article on coronavirus circulated in the Trump administration, about why he believes many coronavirus models are wrong, and the dangers of sloppy science during a pandemic. https://t.co/kpurftthzw

— Isaac Chotiner (@IChotiner) March 29, 2020

(I belatedly realized I buried the lede on this.  Richard Epstein is the author of an article referred to in the interview, which was widely influential in the White House.  Carry on.)

...is the lawyer who thinks he's an expert in any field of endeavor because he's a lawyer!  A favorite joke among lawyers because every lawyer knows a lawyer like that.  In this case, it's Richard Epstein:

O.K., so your expertise in the subject I guess comes in part from your work with aids, which you just referenced, is that right?

AIDS, and I’ve worked on evolutionary theory for forty years in its relationship to law.

This, we must point out, would not qualify him as an expert witness in any court in the land, including J.P. court.  Let's start with his "expertise" in evolutionary theory (the bracketed bits are in the original, and are the responses of real experts).  His basic evolutionary theory seems to be that winners win, and humanity prevails because diseases weaken and we don't!  Yeah!

You wrote, “The adaptive responses should reduce the exposures in the high-risk groups, given the tendency for the coronavirus to weaken over time.” What tendency are you talking about, and how do we know it will weaken over time?

Well, what happens is it’s an evolutionary tendency. [“There is absolutely no evidence for that,” Ko told me. According to Kuritzkes, “There is no proof that this is the case. To the extent we see that evolution taking place it is usually over a much vaster timescale.”] So the mechanism is you start with people, some of whom have a very strong version of the virus, and some of whom have a very weak version of the virus. If the strong-version-of-the-virus people are in contact with other people before they die, it will pass on. But, if it turns out that you slow the time of interaction down, either in an individual case or in the aggregate, these people are more likely to die before they could transfer the virus off to everybody else.

Needless to say, that isn't happening with novel coronavirus at all.  Otherwise cases would have plateaued much earlier.  Besides, who is the "high-risk group"?  40% of cases in the U.S. are in persons 18-45.  An infant in Illinois died and was posthumously tested positive for cocos-19.  This guy's "theories" are blowing up in his face.  And here's where the "my legal experience makes me an expert in many, many fields" comes in:

You keep talking about your “sense.” I think that’s the word you’re using. But you’re stating as a fact that the virus is going to weaken over time. It seems like we do not know that. We can turn to other viruses and how they’ve—

No, that is not what I said. I said there’s a long-term tendency in these ways. Over time, yes. And is this a hundred-per-cent tendency? No. Is there any known exception to it? No. [“We did not see SARS or Ebola weaken over time,” Kuritzkes said. “It is only appropriate public-health measures or vaccines that have helped to control those epidemics.”] It seems to me that if you do this, what you’re trying to do is to figure out what the probabilities are, and I think the answer is, if you look at all of the cases that we’ve seen, no matter what’s going on, even if you subtract out the coercion that was used in China and in Korea and so forth, you cannot come up with a credible story that those places in Korea would have had, say, a half a million cases a day. Or in China you would have had, say, thirty million cases a day. And so I do think that the tendency to weaken is there, and I’m willing to bet a great deal of money on it, in the sense that I think that this is right. And I think that the standard models that are put forward by the epidemiologists that have no built-in behavioral response to it—

And you’re not an epidemiologist, correct?

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. I spent an enormous amount of time over my career teaching medical people about some of this stuff, and their great strengths are procedures and diagnoses in the cases. Their great weakness is understanding general-equilibrium theory.

I'm not sure what "all of these things" is that he's trained in (as we will see below, he is not trained in reasoning or argument).  I've never heard the "skill of cross-examination" related to "understanding general-equilibrium theory."  Wiki tells me its an economic theory, so there is no connection whatsoever between it and cross-examination, or practicing medicine, for that matter.  If this guy argues like this in court, he's a terrible courtroom lawyer.

You write, “There are two factors to consider. One is the age of the exposed population, and the other is the rate of change in the virulence of the virus as the rate of transmission slows, which should continue apace. By way of comparison, the virulent aids virus that killed wantonly in the 1980s crested and declined when it gave way to a milder form of virus years later once the condition was recognized and the bath houses were closed down.” [I read this passage to Kuritzkes, who responded, “It’s completely inaccurate. It had nothing to do with the change in the virus. We were able to do it by safe-sex practices and the like, and we saw the explosive growth of H.I.V. during the nineteen-nineties in sub-Saharan Africa and more recently in Eastern Europe. There is nothing about the virus that has become less virulent.”] What milder form of the virus are you talking about?

Look, all it is is it’s a distribution. What you do is you figure out what this toxicity strength is and if it’s X at one point, then it’s going to be some fraction of X down the road. And it’s quite clear that that is what happened with aids. And then, when it comes along and you start getting [the antiretroviral drug] AZT and other conditions, it’s easier to treat them because all of a sudden aids is evolved in much the same path as syphilis. If you go through the history of syphilis, it starts off, it’s essentially a deadly disease and kills most people. And then those who survive have the milder version of it. And so after a while what happens is it becomes a tamer disease. [Syphilis is a bacterial infection, not a viral infection. “One doesn’t have anything to do with the other,” Kuritzkes said. Ko told me, “That’s not something that is based in empirical evidence, so the fallacy in his argument is the over-all lack of scientific rigor in his analysis.”] 

The lack of empirical evidence is something he seems to acknowledge, but he thinks that makes him smarter:

No, look, I’m not an empiricist, but, again, let me just be clear to you, because you’re much too skeptical. The evolutionary component has not been taken into account in these models, and so before one is so dismissive, what you really need to do is to get somebody who’s an expert on this stuff to look at the evolutionary theory and explain why a principle of natural selection doesn’t apply here.

Let me stop right there:  how can anyone be "too skeptical" about an argument?  How is that even vaguely a defense of an argument, unless you're facing the extreme case of someone who refuses to listen to what you have to say?  All the interviewer refuses to do here is to allow Epstein to say any damned fool thing he wants.  Again, we'll come back to that.  For now, back to Epstein's words:

What I’m doing here is nothing exotic. I’m taking standard Darwinian economics—standard economic-evolutionary theory out of Darwin—and applying it to this particular case. And, if that’s wrong, somebody should tell me. But what happens is I just get these letters from people saying, “You’re not an expert. The H1 virus differs from this one in the following way.” What I don’t get from anybody is a systematic refutation which looks at the points parameter by parameter.

Huh?  He gets letters explaining precisely why he's wrong, but not looking "at the points parameter by parameter"?  No wonder he says the interviewer is too skeptical.  He can't get the log out of his own eye.

I guess my point is that shouldn’t you be careful about offering up these theories before they’re printed?

No. It turns out in this particular world if you become quiet about this stuff it never gets heard. And what we’ve had now is very loud talk on one side. I think most of it is incorrect. I’m always willing to debate somebody on the other side who wants to say this is the way the model works. In fact, I have several of my Hoover colleagues who have done exactly that.

There is an economic adage (a "law" oF economics, I understand), that bad money drives out good.  The concept applies to ideas, too.  Bad ideas are usually the ones promoted by people who don't understand the subject, and refuse to admit they don't understand.  And I love that "this particular world" phrase.  As opposed to a world where Epstein's genius is universally acknowledged and no one is "too skeptical" of his opinions?  Do I go too far?  In this particular world, this is what Epstein said for the record:

I was just asking about—

I’m saying what I think to be the truth. I mean, I just find it incredible—

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?

No, actually, I would not.

Then good. Then maybe what you want to do is to say, “Gee, I’m not quite sure that this is right. I’m going to check with somebody else.” But, you want to come at me hard, I am going to come back harder at you. And then if I can’t jam my fingers down your throat, then I am not worth it. But you have basically gone over the line. If you want to ask questions, ask questions. I put forward a model. But a little bit of respect.

O.K. Let me ask you this question. All my questions are asked with respect.

That’s not the way I hear it.

Donald Trump is not one of a kind.  And Chotiner did Epstein a kindness by not ending the interview there.  But in my reading, that is the last word one needs to hear from Richard Epstein. And why does this matter? As Chotiner points out, the article Epstein wrote (that Chotiner quotes from) has been very influential in the White House.

Idiots leading idiots, IOW.