Friday, April 10, 2020

Pandemic Productivity: Newton, Shakespeare, and the Rest of Us

by Michael C. Dorf

William Shakespeare grew up in a world frequently beset by pestilence and may well have written King Lear while quarantined due to the plague. A little over a half century later, Isaac Newton, then a student at Trinity College, Cambridge, was sent home to avoid the plague. He invented calculus and made substantial progress on the laws of motion.

It is easy to think of these giants of literature and science and feel shame--or, as humorously suggested by a recent New Yorker satire, to console oneself by remembering that Shakespeare and Newton could not distract themselves with Netflix. Yet the examples of Shakespeare and Newton raise real questions for those of us who live the life of the mind--albeit with nothing like the ability, power, or influence of such greats. How should the so-called thinking class be spending our time in quarantine?

There is a straightforward answer for those of us with relevant expertise. If you are a virologist, epidemiologist, or some other sort of biologist who can quickly shift gears, you have likely already retooled your research and/or laboratory to seek to better understand, treat, and/or prevent COVID-19, just as factories that usually produce clothing are now producing masks and automobile manufacturers are shifting to making ventilators.

But what if your expertise is in history, literature, or law? Let's consider a few possibilities.

(1) Deploy your expertise to combat the pandemic.

Despite frequent talk of how the current pandemic is "unprecedented," in fact there are numerous precedents, albeit none of them perfect. A historian could describe quarantines of the past. Why? One reason would be to teach lessons that could impact current policy. The contrast between the approaches of St. Louis and Philadelphia with respect to the Spanish flu has been much in the news, but it's only one of many examples in human history of more and less successful efforts to fight communicable diseases.

A literary scholar could likewise draw on a rich canon of outbreak-related work, from the Bard's own oeuvre to Albert Camus's The Plague. To what end? Obviously, reading about past pandemics would not be an escape. However, great literature also provides profound insight. One learns at least as much about the mysteries of human motivation by reading Dostoevsky's Notes from Underground as Freud's The Ego and the Id. Here's a nice essay by a classicist with the fitting title "Plagues Follow Bad Leadership in Ancient Greek Tales." Yes, much about our current crisis is different from what came before. Modern science and technology both made us more vulnerable and, if marshaled intelligently, give us more tools to fight back. Yet less may have changed than we think. Great literature can connect us with the stories of generations past.

As I hope the material on this blog illustrates, legal scholars have a great deal of relevance to say, whether it's Professor Buchanan (who is also an economist) on how to address the macroeconomic fallout of the pandemic and its response, Professor Klein on the legal framework that governs teaching law via Zoom, Professors Levinson and Segall on whether the law does or should require religious exceptions from prohibitions on large gatherings, or yours truly on the constitutionality of political favoritism in the allocation of scarce medical resources. Those are just a few of the many pandemic-related writings from my co-bloggers and me. Still more can be found at other sites, of course.

(2) (Don't) Opine on Matters Way Beyond Your Expertise

In shifting gears from our usual subject matters, there is a risk that we will venture way beyond our expertise. As I explained in my March 26 essay, NYU Law Professor Richard Epstein did just that in a pair of essays published on the Hoover Institution website. Disastrously, Epstein's first such essay--in which he predicted that the COVID-19 death toll in the US would end up at around 500--apparently played a role in influencing the White House to delay promoting aggressive action, with a potential cost of many thousands of lives. Epstein acknowledged a mistake and corrected his prediction, but his new US prediction was  5,000 deaths for the whole of the pandemic. The US exceeded that higher total on April 1. As of this morning, New York State alone has recorded over 7,000 COVID-19 deaths, while the official death toll in the country as a whole is approaching 17,000. Both of those numbers substantially undercount true Coronavirus deaths due to people dying at home and spotty testing. And both the official and actual death toll will continue to increase long after we are on the downside of the new-infections curve. Meanwhile, the deaths we are seeing now are coming after most states took the sorts of dramatic measures that Epstein thought unnecessary. One can only imagine how bad things would be had the Trump administration and the nation's governors followed Epstein's "contrarian" advice.

Meanwhile, to my knowledge, Professor Epstein--whose two disastrously incompetent musings for the Hoover Institution will far exceed in real-world impact all of his other work combined--has not apologized. On the contrary, he has doubled down. Epstein gave a stunning interview to Isaac Chotiner of The New Yorker in which he claimed great expertise in "evolutionary theory," while continuing to spout nonsense. Here's a sample of Epstein's brittle arrogance:
Epstein: Admit to it. You’re saying I’m a crackpot.

Chotiner: I’m not saying anything of the—

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

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

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

Chotiner: 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.

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

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

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

But wait! How can I criticize Epstein for venturing beyond his expertise when I too can be accused of that sin? I am not, after all, a medical expert of any sort; yet there I was calling for a national lockdown in a Verdict column published on March 15. Is the only difference that I was right and he was wrong?

That's surely an extremely important difference, but it's not the only one. The main point of my Verdict column was to explain that there are no insuperable legal obstacles to a national lockdown. It's true that in order to get to that point, I had to first argue that lockdown is a wise policy, but in so doing I tried not to claim any special expertise or to perform my own idiosyncratic calculations.

More broadly, legal scholars must frequently engage with policy questions that go beyond our expertise as such for two reasons. First, there often arise interesting legal questions about particular policies. For example, when the Supreme Court was considering the constitutionality of the so-called individual mandate of the Affordable Care Act in 2012, we needed to know enough about insurance markets to be able to evaluate the claim that the mandate was necessary to prevent the moral hazard that would otherwise exist due to the prohibition on screening out clients with pre-existing conditions. Second, contested legal questions can rarely be completely separated from policy questions.  Whether the Equal Protection Clause permits race-based affirmative action and whether the Second Amendment permits magazine capacity limits are not simply questions about the meaning of words; they're also in substantial measure policy questions. To be a competent legal scholar or lawyer one must be able to at least comprehend and speak coherently about matters that are not strictly speaking within our expertise.

The danger, in other words, is not that we legal scholars will say something about policy matters beyond our expertise in the course of providing legal analysis. The Epsteinian danger is that we will think ourselves experts in those policy matters, or worse, continue to think so even after we have erred disastrously.

(3) Stick to Your Agenda

Although one can perhaps find traces of a concern about the plague in the bleakness of King Lear, the play is on its face a tragic story of sibling rivalry, ambition, and human fallibility. Meanwhile, nothing about calculus or the laws of motion has any connection to the occasion of Newton's quarantine. Shakespeare and Newton mostly just used their time in isolation to focus on work they wished to get done in any event. That's not a bad idea for us mere mortals too. Thus, on this blog and elsewhere, some of us legal scholars are continuing to do our regular work.

That's certainly true for those of us who have shifted our teaching to Zoom classes. If you began the semester with a Federal Courts syllabus that had you teaching sovereign immunity around now, that's what you're likely teaching.

Likewise for scholarship. For example, Professor Buchanan and I are in the process of making revisions to a new article (forthcoming in the next volume of the Cornell Law Review) that looks at the relationship between, on one hand, Law and Economics, and, on the other hand, originalism and textualism. We drafted most of the article after the emergence of COVID-19 in China and Europe but before it was widespread in the US, and the article has nothing to do with the Coronavirus, nor do we intend to revise it in a way that makes it relevant to the pandemic.

Working on such other/regular matters has at least two benefits. One is therapeutic. When we immerse ourselves in the sorts of concerns to which we are accustomed in normal times, we distract ourselves from the horrors of the news. There is also the possibility of producing something of high quality. Although I doubt there are many academics whose teaching is better now that they are Zooming it in, it is possible to imagine that the elimination of some other obligations allows some of us to focus more intently on our scholarship.

Needless to say, however, that last possibility will very much depend on individual circumstances. Some scholars have newly housebound young children for whom they must now provide daycare. Others may have sick or vulnerable relatives for whom they are responsible. Some are sick themselves. Accordingly, many of us have substantially less time to focus on our scholarship than during the "before" time.  

(4) Volunteer/Donate

Those of us lucky enough to find ourselves with extra time on our hands (because, say, attending a virtual conference via Zoom takes the two hours one is logged onto Zoom, rather than the two days of there-and-back travel plus hanging out) might want to use some of it to fight the pandemic and its side effects in whatever way we can. Many people are already fighting the pandemic through their jobs: Doctors, nurses, paramedics, and other medical staff; police, firefighters, and other first responders; postal workers and others who deliver essentials for carriers like UPS and FedEx; pharmacy, grocery store, and restaurant owners and employees who work at essential facilities; sanitation workers, prison guards, and many many others. All of these people--and especially the health care workers risking exposure to high and thus more lethal viral loads--deserve praise, gratitude, and most of all support from the rest of us.

For those who are not themselves at elevated risk or living with someone at elevated risk (and thus taking extra precautions to avoid infecting that someone), that could mean making purchases for friends or neighbors. It could mean making and donating such personal protective equipment (PPE) such as masks and gowns as are needed. It could mean making contactless deliveries for a local food bank or, for those who are relatively shielded from the economic impact of the shutdown, simply donating money to worthy causes. One must be careful, however, not to make things worse. Volunteering to provide meals for those in need is noble but harmful if the volunteers do not practice social distancing in the process.   

(5) Attend to Your Physical and Mental Health

What if it's all too overwhelming and you'd rather just stay home, sleep more, and watch TV? Not that you need it, but you have my permission. Staying home is certainly better than unnecessarily going out, and taking care of your mental health is itself virtuous. Stress lowers immunity, as does sleep deprivation. To be sure, getting some exercise and eating healthy will also boost your immunity, though for people confined in small apartments and/or struggling simply to ensure that they have enough calories these could be challenges.

My bottom-line: You're probably not going to write the next King Lear or make a world-changing mathematical or scientific discovery during your quarantine. Give yourself permission to do less or even nothing. Depending on the something, nothing could even be better than something.

2 comments:

Patrick S. O'Donnell said...

Among the things I have done during this period was to put together a short bibliography on disease, epidemics, and pandemics, available here: https://www.academia.edu/42565799/Diseases_Epidemics_and_Pandemics_Basic_Rea

Patrick S. O'Donnell said...

One other item: the pandemic made me think about the importance of social epidemiology, which until most recently, was not part of the discussion in the mass and social media. Hence this post: https://www.religiousleftlaw.com/2020/04/friedrich-engels-the-english-working-class-and-incipient-social-epidemiology.html