There’s a decent argument that no single human being did more to prove the merits of the Chevron doctrine than law professor Richard Epstein. Before the Supreme Court’s last Term shift, the law recognized that, when it comes to scientific disputes over what constitutes toxic waste in vague, open-ended public safety laws, the courts should default to the actual government scientists charged with implementing those statutes. Now John Roberts gets to decide how much rat poison is safe to put in a hot dog. COMFORTING!
But Epstein was, unintentionally, way ahead of the game in proving why this result is so deadly.
Epstein took to the pages of the Hoover Institution on March 18, 2020, to explain to all the bedwetting doctors and public health experts out there that he, as a LAWYER, had already considered the arrival of COVID upon American shores and determined that it was all much ado about nothing. All Epstein really needed to reach this conclusion was some out-of-context data reported by the always-reliable-on-the-subject Chinese government. And while, at the time and to this day, there are actual medical debates over the relative merits of lockdowns vs. other prophylactic measures, Epstein bypassed citing these battles of the experts to issue his own analysis. In the end, Epstein reasoned, the virus then rampaging across Europe would only kill about 500 people!
By noon of March 24, 2020 — less than one week after publishing his article! — the death toll in the U.S. already reached 592. Epstein said the “500” number was “smaller than I intended to state” and revised his figure to… 5,000. Epstein and Hoover stopped making corrections after his new estimate confirmed his buffoonery. But here’s what he said at that time:
So my adjusted figure, however tweaked, remains both far lower, and I believe far more accurate, than the common claim that there could be a million dead in the U.S…..
The current U.S. death toll from COVID is somewhere north of 1.2 million right now.
Fast forward to today and a Federalist Society webinar about the post-Chevron legal landscape. It seems Epstein’s experience as an armchair scientist whiffing on public health with deadly consequences — Donald Trump’s administration enthusiastically clung to Epstein’s baseless analysis at the outset of the pandemic — has taught him some humility.
LOL, just kidding!
On a great Fed Soc webinar just now, and Richard Epstein has just said that he was “against Chevron from day one.”
— Alison Somin (@AlisonSomin) October 29, 2024
I’ll bet he was.
A shocking number of lawyers are positively convinced that they know more about every subject based on three years of torts and civ pro than real scientists. It develops when a lawyer confuses doing the research to explain the merits of 16th century oil painting with thinking they’re qualified to be a painter. One is about cultivating a flexible mind respecting the lawyer’s gift for marshaling and communicating expert information and the other is about being an idiot.
It’s a special brand of hubris possessed only by lawyers and your friend who thinks you’d “have a lot of fun” at their improv night.
The irony, of course, is that the Chevron doctrine began as a right-wing troll that could allow Reagan-era administrators to bypass Congress and lift restrictions on whole swaths of sludge while finally counting ketchup as a vegetable for school lunches. But it quickly morphed into its more logical end — a vehicle for trained experts to fulfill laws that Congress intentionally leaves open-ended. Because legislators aren’t equipped to predict every potentially toxic substance that could ever be invented, but can command agency scientists to “stop people from poisoning lakes.”
But apparently Epstein knew even back then that he and his fellow law-degree-holding friends would be better at science than all the scienticians out there!
Now, thanks to the Supreme Court, he can realize his dream of empowering an army of J.D.s to “well, actually” every nerd who successfully passed organic chemistry.
Earlier: Remember When A Law School Prof Said Only 500 Americans Would Die Of COVID? Whatever Happened With That?
John Roberts Says Judges Should Decide How Much Rat Poison Is Too Much For Your Hot Dogs
Mask Mandate Struck Down Because ‘Sanitation’ Doesn’t Mean ‘Keeping Things Clean’ For… Reasons
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.