Richard A. Epstein: Parsing The Trump Indictment

The headlines are consumed with the multiple lawsuits against Donald Trump for the misdeeds that he allegedly—I use the term cautiously—committed both in and out of office. 

By far the most serious of these cases is the indictment brought by special prosecutor Jack Smith against Trump for his efforts to overturn the results of the 2020 presidential election.

Professor Richard Epstein: “Disinformation” Campaign Vs. Open Debate

The Biden administration should be forbidden to pressure social-media companies to manipulate COVID discussion.

On July 4, in Missouri v. Biden, judge Terry A. Doughty issued a broad injunction whose primary function is to prevent the Department of Health and Human Services, the FBI, and multiple other federal agencies from speaking to or meeting with social-media companies for the purpose of “encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech.” The government has insisted throughout the litigation that its active cooperation with these companies is part of a vital public campaign to stop the spread of “disinformation” on social media, including its efforts to prevent what the Biden administration termed “vaccine hesitancy” on the part of the public.

Richard Epstein: California’s War On Vaccine Skeptics

A new law seeks to punish doctors who challenge politically imposed medical policies.

It is now approaching three years since the advent of COVID-19 in March 2020 provoked the most comprehensive and coercive response to a public health crisis that the United States has seen. 

From the earliest date, that policy has included lockdowns, social distancing, masking, and mRNA vaccines—all to stem the spread of the disease throughout the country. 

These tactics have long been opposed by many who think that more focused responses, which seek to isolate and protect the most vulnerable populations, offer a more tempered and effective response to the disease—a position well-expressed in the Great Barrington Declaration of October 4, 2020, which the conservative Brownstone Institute a year later observed “shattered the notion that there was a scientific consensus in favor of lockdowns.” 

Many other physicians have also expressed their uneasiness about COVID vaccine mandates, even as the federal government issued its own vaccine mandate in the employment context (it was struck down in January 2022 by the US Supreme Court in NFIB v. OSHA).

Professor Richard Epstein: Affirmative Action On Shaky Ground

This past week, the Supreme Court heard extensive argument on the deceptively simple question of whether race can be considered in admissions at institutions of higher education. The matter of great urgency in both cases before the court (Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina), is the extent to which minority students may receive a systematic boost in their applications on account of their race. Race could never be the only relevant element, for then all African-American applicants would get in before anyone else was considered. Instead, the key questions are how much of a “plus factor” is race and whether that boost for African-American students can be justified by some race-neutral criterion.

Richard Epstein: Biden Goes Deep Green

It is amazing the difference that four years can make in environmental policy.  On January 24, 2017, at the outset of his presidency, Donald Trump issued an executive order that salvaged the Dakota Access Pipeline (DAPL) from the Obama administration’s planned obstructionism. Obama had sought to upset the string of administrative approvals that the project obtained at both the federal and state levels. 

DAPL runs about 1,100 miles from the Bakken and Three Forks oil fields in North Dakota to Patoka, Illinois, where it is able to carry, far below ground, about 500,000 barrels of crude oil per day. Trump’s action allowed Congress to vote on whether to grant the last federal easement needed for the pipeline to proceed.

Richard Epstein: The Trial That Should Not Be

Last week, the House of Representatives voted to impeach Donald Trump for “incitement of insurrection,” stemming chiefly from his remarks before a large crowd near the White House on January 6. As I have previously written, serious questions still remain as to whether those charges are valid as a matter of fact and law. But assuming they are, the question is what comes next.

Press coverage is mostly limited to tactical and political issues. 

Richard A. Epstein: An Overambitious Climate Plan For Biden

President-elect Joe Biden’s transition team has made it clear that climate change will be a top policy priority for his incoming administration. 

In crafting its policies, the Biden administration may heavily rely upon a blueprint already created by former Obama administration officials and environmental experts. Known as the Climate 21 Project, the exhaustive transition memo seeks “to hit the ground running and effectively prioritize [Biden’s] climate response from Day One,” after which it hopes to implement major institutional changes within the first hundred days of the Biden presidency. 

Professor Richard Epstein: A Flat Tax Is A Fair Tax

This expert commentary from Richard Epstein dissects the shallow theology behind the new strain of socialism that makes the unfounded claim that capitalism and private markets make us “unfree.” With today’s “New Socialists” calling for universal healthcare, price controls, free college tuition, and a basic universal income, this is an urgent read for anyone who cares about preserving liberty for the next generation.

One of the most contentious political battles of the 2020 election cycle involves the Illinois “Fair Tax” ballot amendment. Supported politically (and financially) by Illinois’s billionaire governor, J. B. Pritzker, the amendment seeks to remove a provision in the Illinois constitution that requires all income taxes to be flat—that is, held at a constant rate regardless of the amount of income earned by any taxpayer. Currently, all income earned in Illinois is taxed at a 4.95 percent rate. The amendment requires a simple majority vote to be passed. 

Richard A. Epstein: Our Latest Global Warming Scare

The United Nation’s Intergovernmental Panel on Climate Change has issued a special report predicting apocalyptic environmental consequences if the nations of the world are unable to reduce the amount of warming to 1.5° C above pre-industrial levels in the next 12 years. 

The IPCC report insists that meeting this target requires “rapid and far-reaching” changes—all unspecified—in a wide range of areas including land, energy, industry, buildings, transportation, and cities. These changes, the report insists, must reduce carbon dioxide emissions to about 45 percent of 2010 levels by 2030 and to a neutral level of no new carbon dioxide emissions by 2050.

Richard Epstein: Donald Trump’s Trade Travesty

The presidency of Donald Trump has been marked by a war between two totally inconsistent intellectual mindsets: his disastrous trade policy and his wise domestic policy. Let’s start with the good news first.

On the domestic front, Donald Trump has largely followed, to great positive effect, the classical liberal playbook, which spurs growth through a combination of low taxation and market deregulation. Under Trump’s leadership, removal of the government’s heavy foot from the throat of the economy has paid off. 

The key move was to junk the popular Keynesian paradigm with its flawed assumption that one or more low-interest economic stimulus programs could spend the United States back to prosperity. But these glorified transfer programs only take from Peter in order to pay Paul. Their net effect is virtually always negative.

Richard Epstein: A Frontal Assault on Social Media

To all appearances, the folks in charge of privacy regulation within the European Union are unfamiliar with that old cliché, “If it ain’t broke, don’t fix it.” 

Last week, the EU parliament passed a long-anticipated and much-dreaded privacy law known as the General Data Protection Regulation (GDPR), a lengthy and convoluted document that is replete with vague substantive commands accompanied by hefty penalties for violation. 

The implicit assumption behind the regulation is that all individuals are entitled to control data about themselves, so that various firms that acquire this information not only have to hold it secure against outsiders, but are also limited in how they can use the data, while granting individual users extensive rights to access, control, and remove their personal data. 

Richard Epstein: Senseless in Seattle

On first inspection, Seattle is and ought to be the envy of the rest of the United States. In 2017, its population stood at about 713,000 people and was growing at 3.1 percent per year, the fastest growth rate of any U.S. city. Its economic revival has been driven by an influx of new software, technology, and internet companies. Among the major corporations headquartered there are Amazon, Starbucks, Nordstrom, and Weyerhaeuser.

But all is not well in Seattle, which is now riven by deep political divisions over what to do about the problem of homelessness. Right now, about 8,000 people within the city limits are homeless, and the city saw 169 homeless deaths in 2017.

Richard Epstein: The False Allure Of Libertarian Paternalism

One of the great academic debates of our time revolves around how people make choices. On the one side, neoclassical theory assumes that individuals generally act in sensible ways in order to advance their individual self-interest. They are motivated to control aggression and monopoly, and to let private parties in competitive markets strike what bargains they like. 

In recent years, this neoclassical approach has come under attack from the field of behavioral economics. Its proponents argue that the neoclassical model of behavior, premised on the fact that human beings are rational decision-makers, does not sufficiently account for the many false heuristics and biases that lead people astray as they make decisions.

Richard Epstein: Pension Abuse In California

One of the main themes in the blockbuster case of Janus v. AFSCME—currently before the United States Supreme Court—is the risk of having unions sit on both sides of the table in public-sector contract negotiations. 

Nowhere is that risk more pronounced than in California, where the perverse and pervasive effects of union political influence are on display in Cal Fire Local 2881 v. California Public Employees’ Retirement System, now before the California Supreme Court. Between 2009 and 2013, California law allowed state and local employees with over five years of service to purchase with their own funds up to five years of “fictional years of retirement service credits”—commonly called “airtime”—that they could then add to their years of actual service in order to increase the value of their pensions at retirement.

Richard Epstein: The Trump Growth Machine

I discovered my genuine confidence in the sustainability of the current economic growth cycle when I recommended to my 27-year-old Uber driver that he invest some portion of his wages in a diversified index fund. Although the stock market will surely ease off its current pace, it nevertheless should prove far more profitable than standard money market funds with their puny returns. The good news is that the current trend likely will not fizzle out anytime soon thanks to several key factors, including lower taxes and deregulation.

Igniting economic growth, as the Trump administration’s policies are doing, is not as straightforward as it sounds because it is easy to make spectacular mistakes in judgment if caught in the grip of Keynesian economic theory. 

Richard Epstein: The Income Inequality Obsession

One of the great political divides in the United States concerns the role of the state in redressing income inequality across individuals and groups. 

Recently, the outspoken conservative commentator Dennis Prager noted that in one representative debate during the 2016 presidential campaign, the words, “Wall Street”, “tax,” “inequality,” and “wealthy” were used 59 times by Democratic candidates. In contrast, “ISIS,” “terrorism,” “free,” “debt,” “liberty,” and kindred terms gathered a scant 10 mentions.

Richard Epstein: The Diversity Fundamentalists

Diversity and inclusion (D&I) is the new catchphrase of today’s elite businesses and universities. Those institutions assume D&I is both a means—to excellence—and an end in itself, making them more closely resemble the larger world of which they are a part. So understood, companies from Facebook to Apple to Goldman Sachs, and academic establishments from UC Berkeley to Harvard to Yale, have found their new holy grail. 

Their commitment to D&I is all too often treated as a self-evident truth that none should be allowed to question in public discourse. But this new consensus for D&I, if left unchallenged, has an unintended consequence: unthinking intellectual rigidity, a malaise that all successful institutions must guard against.

Richard Epstein: When Women Earn Less Than Men

This past week, the Trump administration rolled back an order that the Obama White House put into place to collect information about various disparities in labor markets. 

Last year, the Obama administration issued a “Fact Sheet” grandly titled “New Steps to Advance Equal Pay,” which contained a proposal “to annually collect summary pay data by gender, race, and ethnicity from businesses with 100 or more employees.” In total, the proposal would cover some 63 million people. The purpose of collecting the data was to provide “better insight into discriminatory pay practices across industries and occupations,” which would in turn give “women additional tools to fight pay discrimination.”

Richard Epstein from the US: Presidential Chaos

The Trump White House is in a perpetual state of dysfunction and chaos. Trump kicked off the past week with a series of attacks on Jeff Sessions, his Attorney General and long-time loyalist, for recusing himself from the ongoing investigation of Russia’s interference with the 2016 election. There are tricky arguments, pro and con, on whether Sessions should have removed himself the investigation. But nothing can excuse Trump’s barrage of immature and abusive tweets against a key member of his own team. The upshot is an impasse in which Sessions cannot resign and Trump dare not fire him.

The President followed his Sessions tirade with an ill-considered tweet haphazardly announcing a ban on transgender people serving in the military, which everyone from a blindsided James Mattis on down regarded as a gratuitous insult to many transgender soldiers who have served with distinction. His tweet of course carries no legal consequence, but it puts everyone in government in limbo until the President either issues that foolish order or is, once again, talked off the ledge by his few remaining sensible advisors.

Richard Epstein: The Diversity Fundamentalists

Diversity and inclusion (D&I) is the new catchphrase of today’s elite businesses and universities. Those institutions assume D&I is both a means—to excellence—and an end in itself, making them more closely resemble the larger world of which they are a part. So understood, companies from Facebook to Apple to Goldman Sachs, and academic establishments from UC Berkeley to Harvard to Yale, have found their new holy grail. Their commitment to D&I is all too often treated as a self-evident truth that none should be allowed to question in public discourse. But this new consensus for D&I, if left unchallenged, has an unintended consequence: unthinking intellectual rigidity, a malaise that all successful institutions must guard against.

 The first difficulty with D&I is that it says very little about whom to admit and whom to exclude. Scarcity of places is a major constraint, so any institution committed to D&I has to decide whom to exclude from its community. Ironically, these institutions depend for their success on the institution of private property, which gives them the breathing room on which their cooperative activities rest.