Richard Epstein

Richard A. Epstein

Credentials

Background

Richard A. Epstein is a legal scholar and author. He is the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution on War, Revolution and Peace, a think tank affiliated with Stanford University,6Richard A. Epstein,” Hoover Institution. Archived April 24, 2020. Archive URL: https://archive.vn/wip/n0pp9 and the Laurence A. Tisch Professor of Law at New York University Law School.7Richard A. Epstein,” New York University School of Law Faculty. Archived April 13, 2023. Archive URL: https://web.archive.org/web/20230413150309/https://its.law.nyu.edu/facultyprofiles/index.cfm?fuseaction=profile.overview&personid=26355

In a 2020 article, “All the President’s Crackpots,” The Nation’s Jeet Heer described Richard A. Epstein as “one of the most influential members of the law and economics movement that has worked since the 1950s to persuade judges to apply libertarian economic theories about cost and benefit in rendering legal judgements [sic]”:8Jeet Heer. “All the President’s Crackpots: Richard A. Epstein’s crank theories about the coronavirus are influential thanks to a powerful network of right-wing legal activists,” The Nation, March 30, 2020. Archived March 31, 2020. Archive URL: https://archive.li/xHmpF

“…[E]ven in Federalist Society circles, Epstein is an extremist. In his book Takings (1985), he argued for an expansive view of property law that would require generous compensation to property owners for standard procedures like zoning and wetland regulations, rendering them prohibitively expensive. The purpose of the book was to advocate using the courts to undermine any possibility of environmental policy. In his subsequent book Forbidden Ground (1992), he pushed for the repeal of antidiscrimination laws going back to the 1964 Civil Rights Act. Epstein made the case that employers should be allowed to hire and fire based on race.”

Richard Epstein’s additional think tank affiliations include adjunct scholar at the Cato Institute9Richard A. Epstein,” Cato Institute. Archived April 24, 2020. Archive.ph URL:https://archive.vn/wip/X0O0f and policy advisor for legal affairs at The Heartland Institute.10Who We Are: Richard Epstein,” Heartland Institute. Archived April 24, 2020. Archive URL: https://archive.vn/IepQL 11HEARTLAND INSTITUTE SCHOLARS REACT TO PRESIDENT OBAMA’S RECESS APPOINTMENTS,” The Heartland Institute, January 5, 2012. Archived April 24, 2020. Archive URL: https://archive.vn/63V1b

Epstein is listed as an expert with the Global Economics Group.12Experts: Richard A. Epstein,Global Economics Group. Archived April 24, 2020. Archive URL: https://archive.vn/eN7vS.

Richard Epstein appears regularly on the Hoover Institution podcast The Libertarian.

Academic Positions

From 1968 to 1970, and again from 1970 to 1973, Richard Epstein was an associate professor of law at the University of Southern California.13Richard A. Epstein,” The University of Chicago Law School. Archived April 24, 2020. Archive URL: https://archive.vn/wip/lLUvq

Richard Epstein then joined the faculty at the University of Chicago Law School, where he began as a visiting associate professor of law (1972–1973). He became a professor of law (1973–1982), and then the James Parker Hall Distinguished Service Professor of Law (1988–2011). In 2011 he retired from the University of Chicago Law School with the title James Parker Hall Distinguished Service Professor of Law Emeritus and Senior Lecturer. Epstein was the law school’s interim dean from February-June 2001.14Richard A. Epstein,” The University of Chicago Law School. Archived April 24, 2020. Archive URL: https://archive.vn/wip/lLUvq.15Richard A. Epstein,” Hoover Institution. Archived April 24, 2020. Archive URL: https://archive.vn/wip/n0pp9

Since 2011, Richard Epstein has been the inaugural Laurence A. Tisch Professor of Law at the New York University Law School, where he helped found the Classical Liberal Institute in 2013.16Richard A. Epstein,” New York University School of Law Faculty. Archived April 13, 2023. Archive URL: https://web.archive.org/web/20230413150309/https://its.law.nyu.edu/facultyprofiles/index.cfm?fuseaction=profile.overview&personid=26355

Stance on Climate Change

October 7, 2019

In a Defining Ideas commentary titled “A Climate Change Emergency?”, Richard A. Epstein claimed that rising human-caused CO2 emissions might not be “the main, or even sole, driver of climate change”:17Richard A. Epstein. “A Climate Change Emergency?: Hoover Institution, October 7, 2019. Archived April 28, 2020. Archive URL: https://archive.vn/g6hnV

“We should therefore proceed with caution before making bold claims that the main, or even sole, driver of climate change is the human generated increase in the carbon dioxide level, which now is approaching 415 parts per million.

“But today’s activists are in crisis mode. The 16-year old Swedish student Greta Thunberg’s recent calls for action sparked thousands of students to skip classes last month in order to fight a global climate ’emergency.’ These students are long on indignation, but short on solutions. They are content to implore today’s business, political, and social elites to come up with a solution before it is all too late—after all, these activists claim, in ten years we could all be dead.

[…]

“[W]hat if the green crusaders have overstated the risk, or what if they are just plain wrong? Then massive social resources will be squandered without obtaining any advantage in return.

“Before we join the crusade, we should listen to the independent professionals decrying the current crisis mentality. Five hundred professional climate scientists have flatly stated to the Secretary-General of the United Nations that “There is no climate emergency,” stressing the dangers of relying on today’s ‘immature models.’”

October 16, 2018

In a commentary for his Hoover Institution column Defining Ideas, “Our Latest Global Warming Scare,” Richard A. Epstein argued that there were substantial benefits to higher atmospheric CO2 levels:18Our Latest Global Warming Scare,” Hoover Institution, October 16, 2018. Archived April 28, 2020. Archive URL: https://archive.vn/y2XeM

“If the effect of CO2 on temperature is relatively weak, its effect on plant growth is powerful, given that CO2 and water are basic resources that plants require to live. Here the unambiguous effect is that the increase in CO2 has made plant life stronger, and has led to a major amount of global greening over the last 30 years. That increase in CO2 levels tends, moreover, to reduce temperature extremes by making land cooler in the day and warmer at night.”

1980s: Stance on AIDS

In a 1988 legal commentary, Richard A. Epstein posed the question, “Do private employers have the right to test their current and prospective employees to see whether they are infected with the AIDS virus, even if (as is often the case) they manifest no signs of AIDS or any associated disease?”19Richard A. Epstein. “AIDS, Testing and the Workplace” (PDF), University of Chicago Legal Forum Vol. 1988, Issue 1. Archived .pdf on file at DeSmog.

In the article, Epstein compared “a model of freedom of contract” to an “antidiscrimination approach”:20Richard A. Epstein. “AIDS, Testing and the Workplace” (PDF), University of Chicago Legal Forum Vol. 1988, Issue 1. Archived .pdf on file at DeSmog.

“I will then argue that freedom of contract, while far less fashionable today, offers a better perspective on the question of employee testing for AIDS than the antidiscrimination approach.”

Epstein described the freedom of contract stance which would allow employers to test (and potentially reject) individuals who tested positive for the AIDS virus:21Richard A. Epstein. “AIDS, Testing and the Workplace” (PDF), University of Chicago Legal Forum Vol. 1988, Issue 1. Archived .pdf on file at DeSmog.

“[T]he employer will (or could be made to) disclose in advance that passing the test is a condition precedent for the job. No one forces a worker to take a test against his will, or deceives him about what will be done with the results.”

Epstein noted that employers might choose to offer people with AIDS a reduced wage, since their eventual deaths from the disease would result in a lower return on the company’s costs for such employees:22Richard A. Epstein. “AIDS, Testing and the Workplace” (PDF), University of Chicago Legal Forum Vol. 1988, Issue 1. Archived .pdf on file at DeSmog.

“Employers, for example, may make heavy initial investments in recruiting and training, costs that they can recoup only over time. For AIDS carriers the number of years over which that investment can be recovered is, on average, sharply reduced, no matter what assumptions are made about the rate at which AIDS carriers turn into AIDS victims. To offset this lower rate of investment return, the employer must obtain some compensating advantage from some other aspect of the employment relationship. Hiring candidates with better experience or credentials are two ways of doing so. Alternatively, the net return to the employer might be preserved if the worker accepts a lower wage in anticipation of a shorter period or a lower level of future productivity.”

Epstein stated that costs related to life and health insurance could result in a “net loss” for employers of people with AIDS:23Richard A. Epstein. “AIDS, Testing and the Workplace” (PDF), University of Chicago Legal Forum Vol. 1988, Issue 1. Archived .pdf on file at DeSmog.

“Since the employer’s total cost includes both wages and fringe benefits with health and life insurance components, the ordinary contract will impose a net loss upon the employer, even on very modest cost assumptions.”

Epstein offered some solutions: 24Richard A. Epstein. “AIDS, Testing and the Workplace” (PDF), University of Chicago Legal Forum Vol. 1988, Issue 1. Archived .pdf on file at DeSmog.

“Both life and health coverages could be reduced, or even eliminated, until the employer again obtains net benefits from the contract,” or “ the parties could agree to a lower wage to offset the increased costs of health and life insurance.”

He went on to describe employer discrimination against workers with AIDS as a “rational response”:25Richard A. Epstein. “AIDS, Testing and the Workplace” (PDF), University of Chicago Legal Forum Vol. 1988, Issue 1. Archived .pdf on file at DeSmog.

“[A]s a matter of theory, the market response to both sides is explicit discrimination between the AIDS carrier and other employees. This discrimination is not driven by ignorance, mistake, prejudice or irrationality. It is a rational response, indeed the only rational response, to an exogenous shock-the antibody positive status, which radically changes cost and benefit calculations for everyone concerned.”

Esptein did admit that this “market response” would put AIDS suffers in a difficult situation:26Richard A. Epstein. “AIDS, Testing and the Workplace” (PDF), University of Chicago Legal Forum Vol. 1988, Issue 1. Archived .pdf on file at DeSmog.

“It will be said, however, that the market response is wholly inadequate because it ignores the pressing needs of AIDS victims for medical and health services. This problem is all too real.  The issue is what, if anything, should be done about it.”

He suggested employees with AIDS would be better served by receiving government benefits than by legal protection from discrimination:27Richard A. Epstein. “AIDS, Testing and the Workplace” (PDF), University of Chicago Legal Forum Vol. 1988, Issue 1. Archived .pdf on file at DeSmog.

“I believe that the redistribution for the benefit of AIDS victims works better through a system of direct welfare support payments than it does through the antidiscrimination laws.”

Key Quotes

July 22, 2019

In a Defining Ideas column for the Hoover Institution, Richard A. Epstein denied that CO2 pollution is the primary driver of climate change, and criticized New York State’s new climate law, which The New York Times described as one of the world’s most ambitious climate plans.28Foolish on Climate Change,” Defining Ideas/Hoover Institution, July 22, 2019. Archived July 23, 2019. Archive URL: https://archive.vn/fsaew

“[It] is not possible to explain the cyclical patterns of global temperature by looking solely, or even primarily, at carbon dioxide levels.

[…]

“[S]erious empirical studies confirm that there is no link between carbon dioxide levels and extreme events such as hurricanes.

[…]

“Worse still, New York is backing the wrong horse by looking to solar and wind energy as credible replacements for fossil fuels. The most powerful demonstration of this point comes from Mark Mills of the Manhattan Institute, who shows in painful detail that the technical limitations of both wind and solar power make them at best niche players. There is little chance that wind and solar energy can displace fossil fuels, which at present account for about 80 percent of the world’s energy sources.”

[…]

“Given the long-term dominance of fossil fuels, the far better strategy for controlling carbon dioxide, or real pollutants like sulfur dioxide, comes from shifting from coal and oil to natural gas, and from innovating new techniques in their production, shipment, and use. Fortunately, the capital costs of getting natural gas to market have been cut in half over the last five years without costly government subsidies. The lower costs will stimulate higher production of fossil fuels, but that should be regarded as a good thing, once we take into account the gains to human welfare that these expenditures generate.”

February 20, 2018

Richard A. Epstein was quoted in Forbes‘s Legal Newsline regarding climate change lawsuits brought by California municipalities against fossil fuel companies, including ExxonMobil:29Karen Kidd. “‘Cross Examination Is Going To Be Brutal’: NYU Law Prof Says Climate Change Litigation Is A Loser,” Forbes, February 20, 2018. Archived April 24, 2020. Archive URL: https://archive.vn/xj8uu

“My guess is they know they’re going to lose those lawsuits. I certainly believe they will.”

Although by this time it was public knowledge that Exxon knew yet denied for decades that use of its products would cause climate change, Epstein said:30Karen Kidd. “‘Cross Examination Is Going To Be Brutal’: NYU Law Prof Says Climate Change Litigation Is A Loser,” Forbes, February 20, 2018. Archived April 24, 2020. Archive URL: https://archive.vn/xj8uu

“Everyone should be devoutly praying that what they claim in their complaints was an exaggeration.”

May 30, 2017

In a commentary for the Hoover Institution’s online journal Defining Ideas, Richard A. Epstein argued that the United States should withdraw from the Paris Agreement because the causes of climate change were unclear, basing his views in part on the work of Richard Lindzen:31Forget The Paris Accords,” Defining Institution/Hoover Institution, May 30, 2017. Archived April 28, 2020. Archive URL: https://archive.vn/nxUD3

“The defenders of the Paris Accords are as dogmatic on the science as they are on the economics. To them, it is an axiomatic truth that carbon dioxide emissions pose a grave threat to the environment, even though the putative causal chain is filled with missing links. The current practice is to assume that every adverse climate event is somehow the result of the rather smallish increases in carbon dioxide levels over the past 65 years.”

[…]

“Climate variability has been a constant long before human beings inhabited this earth. Of course, carbon dioxide is a greenhouse gas that can trap energy. But so is water vapor, and its levels are far harder to track because its amount and distribution are not constant across the earth’s surface. Most crucially, observed cyclical patterns of temperature change do not correlate with slow but steady increases in carbon dioxide. Recent work by climate scientists Richard Lindzen and others shows that during the so-called Holocene period (roughly covering the last 11,000 years), there was a negative correlation between temperatures and carbon dioxide concentrations—strongly suggesting that carbon dioxide levels cannot be the main driver of temperature changes. It should, therefore, come as no surprise that recent climate models that have predicted sharp temperature increases have consistently run “hot,” so much so that observed increases are less than 50 percent of those predicted. As climate scientist Judith Curry points out, the uncertainties involved are large and the role of natural forces in driving temperature change are systematically underestimated.”

Epstein went so far as to claim there could be a net benefit to more carbon dioxide in the atmosphere:32Forget The Paris Accords,” Defining Ideas/Hoover Institution, May 30, 2017. Archived April 28, 2020. Archive URL: https://archive.vn/nxUD3

“More specifically, the over-hyped climate models have ignored two key constraints that undercut the usual doomsday projections. First, changes in temperature occur much more slowly than changes in carbon dioxide concentration. At the same time, the increase in plant growth on land has vastly outstripped temperature changes, contributing powerfully to the greening of the earth in the last ten years, and suggesting that the social “cost” of carbon dioxide could be positive. Second, recent work suggests that “doubling sensitivity”— which adds the multiplier effect needed to determine the ultimate impact of carbon dioxide changes on temperature—is far lower than the previous estimates put forward by the Intergovernmental Panel on Climate Change ten years ago.

“There is, therefore, no good reason to think that carbon dioxide could bring about any short-term crisis in temperature, let alone a crisis that can only be abated by instituting very costly (and likely ineffective) changes through the Paris Accords. The agreement could easily result in trillions of dollars in wasteful expenditures. What’s worse, the agreement seems to set its targets on autopilot, without accounting for new data that might require revisions to the initial figures. Right now there is little reason to believe that putting all the accord’s provisions into place would lower global temperatures by even a fraction of a degree.”

August 2010

Criticizing the Supreme Court’s ruling in Massachusetts v. EPA, which found that the Environmental Protection Agency could regulate CO2 as a pollutant under the Clean Air Act, Richard Epstein wrote for the Suffolk University Law Review:33“Carbon Dioxide: Our Newest Pollutant” (PDF), Suffolk University Law Review Vol. XLII, Number 4 (August 2010). Archived .pdf on file at DeSmog.

“This article argues that this decision was wrong as a matter of statutory construction and sound as a matter of sound social policy: the CAA is the wrong vehicle to deal with either carbon dioxide of global warming. On the present state of the evidence, the case for strong restraints on carbon dioxide emissions has not been made. The evidence in favor of the close linkage between carbon dioxide and global warming has not been clearly established and domestic American initiatives are in any even likely to produce no discernible reduction in carbon dioxide levels in the absence of any agreement that binds other nations, especially China and India.”

[…]

“The information that I have so far reviewed leaves it unclear whether the glass is half empty or half full. On the one hand, I think that there is good reason to believe that the threat from global warming is overstated, which would be welcome news if true. On the other hand, if it is not overstated, I have sought to explain what I believe to be the major shortfalls of all current and proposed solutions.”

Key Deeds

March 16-April 6, 2020

In a commentary for the Hoover Institution’s online journal Defining Ideas, and as DeSmog reported in its series “COVIDeniers: Anti-Science Coronavirus Denial Overlaps with Climate Denial,” Richard A. Epstein predicted that COVID-19 would kill fewer than 50,000 people worldwide. Epstein’s original commentary,  “Coronavirus Perspective,” was published by the Hoover Institution’s online journal Defining Ideas:34Richard A. Epstein. “Coronavirus Perspective,” Defining Ideas/Hoover Institution, March 16, 2020. Archived April 9, 2020. Archive URL: https://archive.vn/7Pf8W

“From this available data, it seems more probable than not that the total number of cases world-wide will peak out at well under 1 million, with the total number of deaths at under 50,000. In the United States, the current 67 deaths should reach about 5000 (or ten percent of my estimated world total, which may also turn out to be low),” Epstein wrote in that essay.

A “Correction and Addendum” was added to the commentary on March 24:35Richard A. Epstein. “Coronavirus Perspective,” Defining Ideas/Hoover Institution, March 16, 2020. Archived April 9, 2020. Archive URL: https://archive.vn/7Pf8W

“My original erroneous estimate of 5,000 dead in the US is a number ten times smaller than I intended to state, and it too could prove somewhat optimistic. But any possible error rate in this revised projection should be kept in perspective. The current U.S. death toll stands at 592 as of noon on March 24, 2020, out of about 47,000 cases. 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. from well over 150 million coronavirus cases before the epidemic runs its course.]”

An April 6, 2020 revision to the commentary put Epstein’s initial estimate of U.S. deaths from COVID-19 at 500. (See post threads on X (then called Twitter) that discuss this here, and here.)36Richard A. Epstein. “Coronavirus Perspective—Revised,” Defining Ideas/Hoover Institution, April 6, 2020. Archived April 24, 2020. Archive URL:https://archive.vn/wip/HiWU2

Meanwhile, some sources suggested that prior to subsequent corrections, Richard Epstein’s initial prediction may have been as low as 500.

For instance, the Reason Foundation’s podcast included the following quote from Epstein:

“From the available data, says New York University law professor Richard Epstein, ‘it seems more probable than not that the total number of cases worldwide will peak out at well under 1 million, with the total number of deaths at under 50,000…In the United States, if the total death toll increases at about the same rate, the current 67 deaths should translate into about 500 deaths at the end.’”

In the April 6 revision, Epstein described his previous prediction as “the single largest unforced intellectual error in my entire academic career.” However, Epstein didn’t back down from his conviction that most scientific projections of global COVID-19 cases and deaths were wrong:37Coronavirus Perspective,” Hoover Institution, March 16, 2020. Archived April 9, 2020. Archive URL: https://archive.vn/7Pf8W

“It is, however, important to stress that those errors were in no way essential to the central point that I made there, and continue to put forward—namely the serious overprojection of cases and deaths found in the New York Times graphic below, and in similar studies that predict tens of millions of coronavirus cases, and upwards of one million deaths.”

February 2019

In the climate damages case City of New York vs. BP, Richard Epstein filed a friend of the court brief to the U.S. 2nd Circuit Court of Appeals in support of the five fossil fuel industry defendants: BP, Chevron, Conoco Phillips, Exxon Mobil, and Shell.38Richard A. Epstein. “Brief of Amicus Curiae by Professor Richard A. Epstein in Support of Defendants-Appellees and Affirmance,” U.S. 2nd Circuit Court of Appeals, Case 18-2188, Document 188, February 14, 2019. Archived .pdf on file at DeSmog.

In his brief, Epstein claimed that “his scholarship has been cited — incorrectly — in support of Appellant New York City’s position.”39Richard A. Epstein. “Brief of Amicus Curiae by Professor Richard A. Epstein in Support of Defendants-Appellees and Affirmance,” U.S. 2nd Circuit Court of Appeals, Case 18-2188, Document 188, February 14, 2019. Archived .pdf on file at DeSmog.

Epstein argued that there were various reasons the courts should not allow New York City’s case to proceed, such as: 40Richard A. Epstein. “Brief of Amicus Curiae by Professor Richard A. Epstein in Support of Defendants-Appellees and Affirmance,” U.S. 2nd Circuit Court of Appeals, Case 18-2188, Document 188, February 14, 2019. Archived .pdf on file at DeSmog.

“If the City’s claim were allowed to proceed, there would be no principled reason why the other thirty-nine thousand municipalities in the United States could not follow with suits of their own. Nor is there any reason why private businesses and individuals could not also sue.”

[…]

“No one company — or set of companies — can be tagged with responsibility for this complex global phenomenon. Indeed, the City itself makes use of fossil fuels and is thus partly responsible for the harms that it wishes to blame on others.

“Finally, even putting all that aside, courts would struggle to quantify the damages caused by carbon emissions given the complexity of the climate system. Without contesting that carbon emissions have real effects, it remains the case that scientists cannot say precisely what those effects are, let alone quantify the damages that they cause or the risks that they create.”

August 13, 2017

Richard Epstein appeared on the Bob Zadek Show “with an economic analysis of why the Paris Agreement is a bad deal.” Epstein described himself as a “lukewarmer”:41“Richard Epstein on Climate Change,” The Bob Zadek Show, August 13, 2017. Archived April 24 , 2020. Archived .mp3 on file at DeSmog. Archive URL: https://archive.vn/qlZW5]

Richard Epstein: [00:06:05] And the issue that people seem to have focused on is global warming, which at some level is probably a good thing, but it for other levels is going to be a bad thing. And what they’re going to then do is to ask the extent to which you can say that certain greenhouse gases, most notably carbon dioxide but methane is also a small player in this game can, by trapping heat inside the earth, change temperatures. And it sounds like a very simple inquiry, but it really isn’t, because the basically the carbon dioxide level that can trap heat might be able to some cloud cover, keep it from coming in from the sun. So you increase heat from one source, you reduce heat from another source. It turns out that carbon dioxide is not the only greenhouse gas. The single most important greenhouse, gas perhaps is water vapor, which is very difficult for anybody to do anything about and it’s going to come in large quantities, regardless of what human beings do. [00:07:01]

Richard Epstein: [00:07:48] It seems to me that given the welter of other forces, the high up and down quality of the way in which temperature starts to move, that you cannot think of carbon dioxide as the dominant player. And in the eyes of many people, that makes you a denier, a peculiarly ugly were designed to evoke images of the Holocaust denier. And on my view, it just makes me I’m sort of a mild skeptic or as somebody called a lukewarmer saying yes, there is probably a weak positive connection between the amount of carbon dioxide in the atmosphere and the temperature. But the stress would be on the weak and that other factors may well be more important. And so the debate has become enormously intense. And folks like myself are probably a minority, but it’s not a tiny minority. And the recent evidence, it seems to be coming in tends to be more on this lukewarming side than it is on the notion that the heat is going to blow us up. [00:08:40]

Richard Epstein: [00:50:20] The one point I would end with is this constant refrain falls that people keep telling you, you know, 97 percent of climate scientists believe in global warming. And in terms of the current debate, that’s just a wild overstatement. The views are much more nuanced than that. These data are old, they’re unreliable. I would count myself as somebody would say, yes, I think more carbon dioxide or other things being equal will produce some increment in temperature. But that’s not the same thing as saying you’ve got a worldwide crisis on your hands. And so sort of keeping everything in perspective both on the political and the intellectual front is, I think, the thing that you have to do the most. [00:50:56]

Affiliations

Social Media

Publications

A larger list of Epstein’s publications can be found on his CV filed at the Global Economics Group (PDF).49Epstein-Richard.pdf, via Global Economics Group, May 2011. Archived .pdf on file at DeSmog.

Books by Richard Epstein include:50Richard A. Epstein,” Hoover Institution, April 24. Archive URL: https://archive.vn/wip/n0pp9

Other Resources

Resources

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