The Potentially Deadly Toll of a Law Professor's Libertarianism

by Michael C. Dorf

My Verdict column calling for a national lockdown and, if needed to ensure its enforcement, suspension of habeas corpus, continues to receive pushback. Some of that pushback has a through-the-looking-glass quality, like this piece in RT, which for those unfamiliar, is a Putin-backed propaganda outlet for pro-Trump and other trollish views. I shall wear being called an "authoritarian minded law professor" by an organ of a foreign authoritarian as a badge of honor.

That said, the RT article makes a valid point: people who raise doubts about lockdown policies could have a legitimate argument and thus should be given a hearing. Today I'll look at the most prominent law professor to make the case that we are overreacting: Richard Epstein. His views do not withstand even the most minimal scrutiny and may already be responsible for serious real-world effects.

In a column published on March 12, Professor Epstein predicted that US deaths from COVID-19 would  ultimately total about 500. The US exceeded that number early this week, leading Epstein to correct the number to 5,000 and acknowledge his error. That's fair. Anyone can make what Epstein acknowledged was "a stupid gaffe." Yet that revised estimate is still probably at least two orders of magnitude too low. Meanwhile, there are two further problems.

First, and most consequentially, Epstein's gaffe (and the rest of his analysis) apparently played a key role in persuading Donald Trump to make his deadly pivot back towards playing down the COVID-19 threat and set the absurd goal of restarting the economy and filling pews on Easter (seventeen days from today). Even if Trump walks that back, in the meantime, his airing of the view encourages his followers to go about their business heedless of the risk and encourages Republican governors to drag their feet. Epstein's "stupid gaffe" could end up being responsible for further overwhelming our health care system and thus causing numerous avoidable deaths.

Second, Epstein's follow-up column of March 23 makes additional, even stupider gaffes. In his opening paragraph, Epstein states:
In Spain, the death toll is 2,206.  Italy has taken the lead with 6,077 deaths, 85 percent of which are of people over 70, which stems, it appears, from a conscious decision not to supply ventilators to anyone over 60.  [China, Iran, Italy, and Spain] make up close to 13,000 deaths or about 82 percent of the total. Taken together, these . . . countries account for over 13,595 of the 16,097 deaths. The good news here is that the growth rates in both Italy and Spain have turned downward in the past 48 hours.
I'll focus on two absurdities. First, Epstein dismisses the high death rate in Italy because it appears to result "from a conscious decision not to supply ventilators to anyone over 60." Yet doctors in Italy are not wantonly cruel. That tragic decision is OBVIOUSLY a result of  a flood of cases and thus a shortage of ventilators. Can Epstein be unaware of that fact? It's hard to see how. To support his point, he links to a short Jerusalem Post article that expressly reports the ventilator shortage as the reason for the tragic triage decision. And yet Epstein somehow thinks that he has provided an argument against measures designed to flatten the curve.

Second, what are we to make of the "good news" that "that the growth rates in both Italy and Spain have turned downward in the past 48 hours" as of Monday? Here are the daily new cases in Italy through yesterday:

And here are daily new cases in Spain through yesterday:

Notice anything? Well, for one, Epstein's claim is not that the numbers of new cases are declining substantially, but that the exponential rate of growth is slowing. That does not appear to be true in Spain, although perhaps that's just bad timing on Epstein's part, because the spike of the last three days came after his column appeared. So let's focus on Italy, where the rate of growth does appear to have slowed, even though the situation remains catastrophic.

Slowing the rate of exponential growth of new cases is important but inadequate unless the exponent is less than 1. Otherwise, the health system continues to be overwhelmed and people who could receive life-saving treatment are left to die. It's still better to reduce the value of the exponent, even if it remains above 1, of course, because that spreads cases out over time and more people get the disease later in the pandemic, when better treatments may be available, but the goal should be to bring the growth rate down as close to zero as possible.

I have not yet named Epstein's biggest, stupidest gaffe of all: If Italy's new cases are in fact finally turning down, that is almost certainly because it has been a little over two weeks since the country went on lockdown. This is the pattern that appeared in Wuhan; given the incubation period, new cases continue to rise until about two weeks after lockdown. Then they fall. If Italy is a source of "good news," it is most likely due to the very policy that Epstein deems an overreaction. To borrow a phrase Justice Ginsburg used in another context, pointing to the slowing spread in Italy to justify a go-slow response to the coronavirus "is like throwing away your umbrella in a rainstorm because you are not getting wet."

What are we to make of Epstein's almost-criminal stupidity? Richard Epstein is hardly a stupid man. Nor do I have reason to think that he is a pathological liar like the President whose policies he has disastrously influenced. What then explains his making arguments that are either extremely stupid, extremely dishonest, or both? Ideological priors seem like the only possible explanation.

Epstein is a libertarian who distrusts government. Rather than thinking pragmatically, he falls back on his familiar truisms, saying in his March 23 column that "[t]he central Hayekian principle applies: All of these choices are done better at the level of plants, hotels, restaurants, and schools than remotely by political leaders." It is said there are no atheists in foxholes. Apparently libertarians are made of more stubborn stuff.

Now I want to acknowledge that there is a legitimate other side to this argument that need not rely on stupidity, dishonesty, or ideological rigidity. There is some evidence that the coronavirus is much less deadly but much more widespread than widely assumed. If so, that's good news over the medium to long run. It would mean that pretty soon we'll all have it and most of us will be fine. But this possibility does not undercut the case for lockdowns now, which aim to spread the still-large number of acute cases we will still have over a longer period in order to avoid overwhelming our health care system. I should really say in order to avoid continuing to overwhelm our health care system. With hospitals in New York City already experiencing an apocalyptic surge of cases and deaths, the need to slow the spread is beyond urgent.

Finally, I also want to acknowledge that the economic and social cost of shutdown is real and enormous. But let's be clear that the economic and social cost--as well as the cost in lives--will also be enormous if, as now seems inevitable, we end up doing too little. Moreover, effectively implemented, lockdown has long-run economic benefits. The point of lockdown is to reduce the transmission rate enough so that we can begin to shift to a South Korea-style approach that relies on widespread and rapid testing coupled with isolation and contact tracing. Increasingly, and with each passing day, however, the pandemic's expansion and the inadequate response of the Trump administration and those state officials and private actors following in its footsteps make that approach unavailable.