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Epstein and Sunstein


Here at LGM we’ve been pointing out how Famous and Respected Law Professor Richard Epstein continues to vomit all over himself in public with his ignorant, arrogant, constantly revised, and yet somehow still radically wrong predictions about the course of COVID-19 in the United States and the world.

Let the Internet Record reflect that Epstein predicted sixteen days ago that the total death toll in the USA from the virus would be about 500 people. That total was nearly recorded in New York state yesterday. Let this be known henceforth as an Epstein Unit. The US will be up to about ten Epstein units by tonight, and probably many dozens within a week or two.

Let the record also reflect that Epstein’s utterly dilettantish and destructive foray into a field in which he has no training or expertise of any kind had a significant influence on federal government policy, because that government is currently full of imbeciles like Jared Kushner, who apparently thought Epstein was really onto something.

But LGM is nothing if not ecumenical in its contempt for arrogant jackass law professors, wherever they may be found across the ideological spectrum. Savor for a moment these secular homiletics emitted yesterday by Cass Sunstein, who, like Epstein, is one of the three most cited law professors of the last decade, and who, like Epstein, has also played an important role in influencing federal government policy:

The broader phenomenon is something that psychologists call “truth bias”: People show a general tendency to think that statements are truthful, even if they have good reason to disbelieve those statements.

If, for example, people are provided with information that has clearly been discredited, they might nonetheless rely on that information in forming their judgments. Similarly, people are more likely to misremember, as true, a statement that they have been explicitly told is false than to misremember, as false, a statement that they have been explicitly told is true . . .

In politics generally, and in terms of public health issues, there are a lot of false statements out there (including many from President Donald Trump). Newspapers, magazines and social media platforms often emphasize that such statements can be and often are corrected. They hide behind that comforting fact.

It’s literally true. But in terms of how the human mind works, it’s misleading.

With respect to demonstrably harmful falsehoods, there’s an increasingly strong argument for this conclusion: It’s much better not to circulate them in the first place.

Words of wisdom, Cass, words of wisdom.

Now consider this incredibly irresponsible bit of COVID-19 denialism, inflicted on the world by a Leading Public Intellectual just four weeks earlier:

Turn to the coronavirus in this light. The situation is very fluid, but as of now, most people in North America and Europe do not need to worry much about the risk of contracting the disease. That’s true even for people who are traveling to nations such as Italy that have seen outbreaks of the disease. 

Still, the disease is new, and it can be fatal. That’s more than enough to trigger probability neglect.

At this stage, no one can specify the magnitude of the threat from the coronavirus. But one thing is clear: A lot of people are more scared than they have any reason to be. They have an exaggerated sense of their own personal risk.

How come?

The best answer goes by an unlovely name: “probability neglect.” Suppose that a potential outcome grips your emotions, maybe because it is absolutely terrifying, maybe because it is amazingly wonderful. If so, there is an excellent chance that you will focus on it — and pay far less attention than you should to a crucial question, which is how likely it is to occur.  . .

There are two implications. The first is that unless the disease is contained in the near future, it will induce much more fear, and much more in the way of economic and social dislocation, than is warranted by the actual risk. Many people will take precautionary steps (canceling vacations, refusing to fly, avoiding whole nations) even if there is no adequate reason to do that. Those steps can in turn increase economic dislocations, including plummeting stock prices.

If you think this sounds exactly the sort of insidiously bad information repeated by an authoritative source that Cass Sunstein was warning us all against yesterday, you would be right. And if you guessed that the earlier piece was also written by Cass Sunstein, you are just cynical enough for these times.

There isn’t, needless to say, the merest hint of an acknowledgement on Sunstein’s part in his latest column that he was catastrophically wrong about COVID-19, at a time when a warning about complacency from someone like him might have actually made a tiny bit of a difference on the margin. Or maybe it wouldn’t have, but the balls on this guy. The only differences between him and Epstein is that he had just enough prudential wit to not stick any numbers in his original piece, and that he’s now going for the I’ll just pretend I never said anything like that strategy, rather than the doubling and tripling down approach favored by erstwhile University of Chicago Law School colleague.

And this isn’t some sort of one-time slip-up on Sunstein’s part, as Andrew Gelman reminds us in this very timely and if anything understated critique of Harvard’s Malcolm Gladwell Professor of Sloppy Appropriation of Other Peoples’ Work (This comparison, which is mine not Gelman’s, is actually unfair to Gladwell, who doesn’t pretend to be anything other than a popularizer and simplifier of academic research, as opposed to One of the Leading Scholars of Our Time).

It’s also symptomatic of the many things that are wrong with this Thing of Ours that, at the very time that the two most arguably influential — and certainly the most cited — legal academics of our time have been making colossal fools of themselves in an incredibly destructive way in the middle of an enormous national crisis, legal academics, otherwise so voluble on every important and trivial subject under the sun, have had almost nothing to say about this, with a tiny handful of honorable exceptions.

This episode should have destroyed both Epstein’s and Sunstein’s fantastically overblown reputations. Of course it won’t, because law in general and legal academia in particular are about power rather than knowledge, and because not coincidentally the latter institution is full of hierarchy-worshiping intellectual and moral cowards, who cling to their sinecures by treating people like Epstein and Sunstein with a cringing deference that is, under the circumstances, nothing less than nauseating.

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