Free Minds & Free Markets

Richard Epstein: Why Obamacare Is Collapsing and He's Not Voting for Trump, Hillary, *or* Johnson

Q&A with the great libertarian law professor on cigarettes, global warming, foreign policy, and much, much more.

The architects of Obamacare could have foreseen today's crisis, says NYU Law Professor Richard Epstein, except they were intellectual "super jocks" with a "superior Ivy-League sneer," who knew so much better than anyone else "how to run this Rube Goldberg contraption" designed to "defeat the law of gravity."

Epstein speaks as an insider to elite circles. A graduate of Columbia, Oxford, and Yale Law School, he's the Laurence A. Tisch Professor of Law at New York University, a senior fellow at the Hoover Institute, and a professor emeritus at the University of Chicago. A towering figure in his field, Epstein has had a profound impact on libertarian legal theory, especially with his 1985 book, Takings: Private Property and the Power of Eminent Domain.

Throughout his career, Epstein says, he's been surrounded by "people cleverer than myself putting up schemes that are dumber than you can imagine."

Reason's Nick Gillespie sat down with Epstein for an extended discussion about the collapse of the Obamacare exchanges (0:43); why cigarette companies don't owe smokers a dime (15:49); the recent legal campaign against Exxon Mobile related to global warming (27:00); Obama's dismal record (35:23); where the U.S. went wrong in Iraq (45:00); why he thinks Gary Johnson is a weak candidate (57:00); Hillary Clinton's criminal offenses (58:26); whether he favors Hillary or Trump (1:04:51); and why he's planning to sit out this election (1:05:34).

A transcript of the conversation is below.

Camera by Jim Epstein and Kevin Alexander; edited by Epstein.

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This is a rush transcript that has not been checked for accuracy and punctuation. Check any quotes against the video.

Nick Gillespie: You were among the people who predicted that Obamacare would fail not simply because it was a bad idea but the implementation would be virtually impossible to do. In the Obamacare exchanges, now we are seeing basically some sort of death spiral or some kind of predictable outcome. Talk a little about that and what is happening and why didn't more people see it come

Richard Epstein: Well, I think we start the second question first. Why didn't more people see it coming? I think the explanation really is that these were all the kinds of Ivy League super jocks. And what they always believe is that they can defeat the law of gravity by the ingenious schemes that they could put into place in order to keep things under control. So when this thing was actively debated in 2008 and 2009 there were two approaches to the problem. People like myself said look you know health care insurance is not really special. What you have to understand about all insurance schemes is the greatest chance of conniving is typically with the insured and not with the insurer. And I said the way in which we kind of know this is you go back to the history of marine insurance and you start to see that the insurance companies were always given the options to pull out because they understood that the concealment of information by the insured would have very adverse effects on what they did and it was also clear that the people who would come for insurance were those who had private information which made it more likely than average that they would be the ones who would need the stuff

Nick Gillespie: You know you are at NYU and Chicago, not at an Ivy League school. We fixed that because you have to buy insurance.

Richard Epstein: Well we didn't fix it because of that. First of all what we do is we say you have to buy it but the mandates were extremely unpopular and the idea that you were going to run a social program with very popular acceptance which says you have to pay if you don't take something that you don't want to buy really sticks in the craw of just about everybody, because this is sort of libertarian moment that is respected by all people, because it's not dealing with what large business and industry does, its dealing with what you have to do in your particular life. So what you have to do is to tell people we want you to go into these plans and you're going to be damned if you do and you're damned if you don't. Well you're damned if you do because as it turns out many of the people going to be forced in are those who will be forced to pay premiums higher than the actual value of the policy because the implicit assumption in all systems of social insurance is that you have cross subsidies against different groups. So that the one guys that will be running for the exit and then there is another group which is going to be diving to get into the program because they will be paying average rates of insurance for a superior level of coverage.

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  • bacon-magic||

    Epsteins are everywhere! (((conspiracy?))) - first time use, hope I'm doing it right

  • Uncle Jay||

    RE: Richard Epstein: Why Obamacare Is Collapsing and He's Not Voting for Trump, Hillary, *or* Johnson

    Are you kidding me?
    Obamacare has been a Godsend to all us unenlightened vermin. Controlling the unwashed masses through healthcare has been a judicious idea instilled by the kind, merciful and forward-thinking dictator, Lenin. Dear Leader has only copied State healthcare for the benefit of all of us. All he asks is that we give more money into his healthcare program on a regular basis until we are all broke and dependent upon The State.
    Is that really too much to ask?


    What Jerry Lewis Looks Like Now Is Jaw-Dropping!

  • wareagle||

    Oh, please Richard. PLENTY of people saw the O-care collapse coming. But they were dismissed as racists, kooks, and right-wingers, the modern equivalent of the hoarders/wreckers/kulaks.

    The collapse was damn near impossible to foresee unless you meant to ignore it, which is equally likely. I have long maintained that the standard calculus does not apply to this administration. What sane people from either team might see as a feature, Team Obama sees as a bug. And vice-versa.

  • R C Dean||

    I actually thought his response wasn't bad. He was talking about the special class of Ivy League Idiots who dominate the Top Men circles and are in an epistemically and socially closed universe. Sure, lots of people saw it coming, but they weren't People Who Matter, so they were invisible to the ILI Top Men.

  • tarran||

  • Diane Reynolds (Paul.)||

    His response was excellent.

  • TheZeitgeist||

    He was talking about the special class of Ivy League Idiots who dominate the Top Men circles and are in an epistemically and socially closed universe.

    As Lucy is primary fossil of australopithecines, Jonathan Gruber is to Top Men Ivy League species (though to be fair, I think Gruber is MIT).

  • Jackand Ace||

    Yikes. He claims he suspects Schneiderman doesn't know much about global warming (tip- he knows about potential fraud, hence the investigation), and all Epstein proves is he knows even less.

    He trots out all the old tropes: the denier label is intended to link it to the Holocaust, the last 16 years show no warming (tip- they do, and it's the last 100+ years you need to be concerned about), and more CO2 will be beneficial. Really, you've got to be kidding me.

    And then he cites the CO2 Coalition, who says more CO2 will be fine, when every single science organization in the world says that at our rate, it won't be.

    you should have stuck with a real example of federal government overreach and interference in states rights and asked him about Lamar Smiths record setting use of subpoenas to AGs and independent advocacy groups. But you missed that.

  • Jackand Ace||

    I guess this is the group he refers to:

    " Available scientific facts have persuaded Coalition members that additional CO2 will be a net benefit."

  • Sevo||

    Jack's here to preach the gospel! Have at it Jack; we all appreciate you amusing imbecility on a Friday afternoon!
    BTW, hows those fracing earthquakes doing? And all the folks here supporting eminent domain? Ever get some cites on that?
    Or are you just here to propose more lefty idiocy?

  • Jackand Ace||

    And as far as that label of deniers, Epstein would do well to view what The Comittee for Skeptical Inquiry had to say about that:

    "As scientific skeptics, we are well aware of political efforts to undermine climate science by those who deny reality but do not engage in scientific research or consider evidence that their deeply held opinions are wrong. The most appropriate word to describe the behavior of those individuals is "denial." Not all individuals who call themselves climate change skeptics are deniers. But virtually all deniers have falsely branded themselves as skeptics. By perpetrating this misnomer, journalists have granted undeserved credibility to those who reject science and scientific inquiry."

  • Jackand Ace||

  • R. K. Phillips||

    And that's why I no longer respect that particular organization. I am a skeptic, and I have reason to be. Note that most of the skeptics [on this subject] that I know are not denying the current climate change at all. But given the methodology (adjusting, and re-adjusting the ancient data, and questionable and variable methods for obtaining temperatures), the rejection of factors that now appear to have a much greater effect (urban heat islands, greenhouse - literal - cool areas, solar cycles, etc.) I'm certainly going to remain a skeptic of AGW caused by CO2.

  • The Last American Hero||

    So, unable to convince a critical mass of people to believe in CAGW to change their behavior and live the way Jackhand says they should, and unable to win enough votes to elect the kind of representatives that can pass laws to mandate we live the way Jackhand says they should, they've resorted to tossing aside the First Amendment and suppressing speech.

    This is my shocked face.

  • Jackand Ace||

    Critical mass? Maybe you missed every nation agreeing to the Paris Accords. Lots of mass there, no?

  • Ship of Theseus||

    Last I checked, we don't appeal to what the rest of the world wants or does.

  • Jackand Ace||

    Last I checked, he made a comment about mass.

  • Sevo||

    Jackand Ace|9.23.16 @ 5:23PM|#
    "Last I checked, he made a comment about mass."

    Last I checked, you, typically, tried to finesse an answer and yet once again got caught bullshitting.

  • TheZeitgeist||

    Politicians aren't critical mass to anything but political shit like the Paris Accords; the underlying assumption for vast majority of political support not being 'solving' climate change, but promises about getting some annual checks.

    Take even the hypothetical money off the table, and you take most those nations' support for Carboncon '15 with it. Derp.

  • ant1sthenes||

    Maybe you missed no one in government actually personally taking any action suggesting they believe in climate change, like using teleconferences for these negotiations instead of jetting all across the world. There are a lot of climate televangelists, using fear and faith to get rich and famous while sneaking off to snort climate off a climate gay hooker's climate ass, metaphorically, and a lot of climate church ladies, but not a lot of actual climate believers.

  • Diane Reynolds (Paul.)||

    You know what else many nations used to agree on?

  • Jackand Ace||


  • Sevo||

    Your stupidity.

  • tarran||

    The comical thing about Schneiderman's investigation is that they are down to his third version of why Exxon is bad. And it's even stupider than the previous two.

    The first version, #exxon# knew collapsed when it turned out that Exxon scientists essentially were not keeping some hiding some secret proof of CAGW. Rather their pronouncements reflected a reasonable judgement of the accuracy of GCM's and the data that had been collected at the time they performed their analysis. It turned out that Naomi Oreskes had been full of shit.

    Plan B: He decided to argue that Exxon had defrauded investigators by keeping secret the likelihood that future laws would leave their assets stranded. i.e. Obama would force them to keep their oil in the ground. Naturally, this caused anyone who pays attention to the energy sector to shit themselves with laughter. Any investor knows
    a) The progressive left has infested the civil service with people trying to put oil companies out of business
    b) That movement is very well publicized
    c) Exxon is putting in warnings that future regulatory maneuvers could negatively impact their profits in their prospectus

  • tarran||

    Plan C: He decided to argue that Exxon is defrauding investors of the current value of their reserves by failing to mark them down due to falling prices. Again, this defies reality:
    a) Exxon is notorious for conservatively valuing their reserves. They generally don't mark their stuff down when oil prices crash because they tend to value their reserves lower than other oil companies in similar circumstances.
    b) Their reserves are priced according to an expectation that oil will rise to the market clearing price of >$65 in the next few years.
    c) Guess what analysts are predicting for the 2018 to 2020 timeframe? :D

    AT this point, Scheniderman's only hope of not looking like an idiot is to commit suicide in a way that makes it look like he was assassinated by shadowy forces.

  • Jackand Ace||

    Well, we will see, won't we?

  • Jackand Ace||

    By the way, got any links on how Schneiderman keeps changing? Or do you have some kinda inside info. Or just blowing stuff...

    No oil lobby links, please.

  • Whahappan?||

    Fine, then you can't link to any government or environmental advocacy groups for your info. You know, to be fair.

  • Jackand Ace||

    Thanks, but I never do. In fact other than the ridiculous link I posted above that Epatein refers to, I linked to Committee of Skeptical Inquiry. One of the founders who was Carl Sagan.

    Keep trying.

  • Sevo||

    "One of the founders who was Carl Sagan."

    Half-right. He was a 'founder' when they r-oganized and changed names; Typical
    And they long ago morphed from promoting skepticism to promoting government action. Since you obviously don't probably missed when Paul Kurtz, having just overseen the change from a mimeographed mailer to a 4-color slick ranted about how 'small magazines were being squashed by 'big print'!
    He, at least, had some redeeming qualities, unlike you.

  • Sevo||

    Since you obviously don't *don't know what you're posting about, you* probably missed when Paul Kurtz, having just overseen the change from a mimeographed mailer to a 4-color slick ranted about how 'small magazines were being squashed by 'big print'!
    He, at least, had some redeeming qualities, unlike you.

  • TheZeitgeist||

    Carl Sagan? Of the 'Iraqi Oilfield Nuclear Winter?' That CSICOP outfit used to be about debunking stuff like outlandish UFO claims, ghosts, and associated pseudoscientific bullshit. CSICOP's Carbontology shtick is first time I can think of where they've actively tried to promote a pseudoscience, rather than refute it.

    This segue also hits heart of matter; asking someone if they 'believe in climate change' is like asking someone if they 'believe in UFO's.'

    With UFO's, one can believe unidentified phenomena can exist in the sky without also believing they are aliens from Area 51 abducting cattle and housewives. Ditto one can believe in climate change - i.e. the climate changes - without believing human CO2 footprint is committing us all to Venusian carbon-doom hell in the name of Evil Corp. profits.

  • Sevo||

    Jackand Ace|9.23.16 @ 6:40PM|#
    "Thanks, but I never do."

    And then he posts:
    Are you capable of posting without lies, Jack? Is it simply that when you open your yap or type on a keyboard, we should presume we'll see nothing but lies, Jack?
    Keep trying Jack. Maybe one day you'll slip up and post something true.

  • R. K. Phillips||

    "Scheniderman's only hope of not looking like an idiot is to commit suicide in a way that makes it look like he was assassinated by shadowy forces."
    All he'd need to do is diss Hillary, and he'd be quickly taken out.

  • ant1sthenes||

    Denier is not appropriate term for those who fail to believe in climate change, since they might not even speak about their lack of belief. They're climate kaffir.

  • wef||

    Schneiderman doesn't know much about global warming. Neither do you, ace. Neither do other whiners on one way or the other. Plenty of high-powered experts are skeptical regarding projections of "dangerous" future trends. Epstein distills a few of their observations.

    The denier label is intended to link it to the Holocaust. Otherwise why the word denier? As the term to deny the holocaust referenced the denial of Christ, it is freighted with elements of a community's anxiety to force a confession of faith.

    The last 16 years show no statistically significant warming - although CO2 concentrations have increased significantly. The point is about the uncertainty of model predictions of dire consequences. You have no clue about the sources of uncertainty in these models. The longer record supports a lower "climate sensitivity" to CO2 doubling, yet consistent with the IPCC range of 1.5 and 4 degrees C - a range unchanged for 30 years. "Reasonable estimates" centered on 3 C in the 4th IPCC Report, moved toward 2.5 C in the 5th. Epstein's take is highly reasonable.

    More CO2 will be beneficial. You show your anti-science ignorance if you doubt this. The question regards the magnitude of those (and other) benefits compared to possible longer-term costs. It is the tendentiousness of the partisan hack to ignore or "deny" this or to imply that it is an unreasonable and relevant point.

  • Jackand Ace||

    Perfect. You said it all for the libertarian take. Thanks!

  • TheZeitgeist||

    All the IPCC scenario models from 1998 report compared to actual data in timespan since then were running on average half a degree C too hot for less CO2 input than actual observation.

    Now the heat hides in the ocean, a literal heatsink to save the (latest) models while attempting to salvage any credibility for the old ones. Models I might add that are written in the programming version of Latin (FORTRAN) using measured parameters and first approximations from hydrogen bomb testing programs in the 50's.


  • Bob Armstrong||

    You are clearly incapable of quantitative thought much less discussion of the quantitative physics .
    So you are just a parrot .

  • Jackand Ace||

    Enjoy your weekend, Bob.

  • Sevo||

    Die in a fire, Jack.

  • Duelles||

    The correlation, causality of warming and CO2 historically doesn't work. Their is correlation now, but the climate is affected by so much more and those factors are ignored. Separating carbon from CO2 is a bit off putting scientifically since they are two very different species.

  • thorsmjollnir||

    To be fair he didn't deny climate change. He even admitted that it is happening. He merely pointed out that the level of contribution by humans to climate change is still under debate and has not been settled. Surely one should be skeptical or should we just welcome economic turmoil to deal with a problem no one is sure we can solve or will ultimately be a net negative?

  • Set Us Up The Chipper||

    Epstein's take is highly reasonable.

    True enough. I will also add that his assessment of the important issues surrounding climate science is probably the best one I've heard, especially given the time constraints. CAGW is bullshit. AGW is pretty much a given, with the low sensitivity line of reasoning starting to win the day. There is a new paper about the lack of a tropospheric hotspot that is making the rounds. The data and reasoning behind the paper is substantial enough to take a hard look. If the hotspot goes, most of the CAGW sentiments are logically done for, though I doubt they will stop.

  • LV||

    "Yikes. He claims he suspects Schneiderman doesn't know much about global warming (tip- he knows about potential fraud, hence the investigation), and all Epstein proves is he knows even less."

    No, apparently not since he's not investigating the government employees / departments and / or government sponsored entities that have been and still are promoting the utter horseshit of AGW. The idiots at the EPA classified CO2 as a pollutant for Christ's sake.

  • Jackand Ace||

    They did. Because too much of it is. At least, science tells you that.

  • Jackand Ace||

    Epstein says that the increase in temperature in the last 16 years is close to zero.

    Really. From NOAA:

    " August marks a not-so-sweet 16 months of record warmth for the globe, the longest such streak in 137 years. "

    Methinks Epstein needs to brush up on his global warming facts.

  • Jackand Ace||

    Maybe he needs to view this graph

    Yeah, no increase in temperatures.

  • TheZeitgeist||

    Your link isn't a graph.

    This is a graph.

    And so is this one, a personal favorite:

    One can find appropriate academic links at bottom of relevant article if Wikipedia is not good enough to appeal to your inner love of authority.

  • Jackand Ace||

    Yeah it is a graph. But then, you're not to bright, are you?

  • Sevo||

    So you don't like the graphs he posted and the best you can do is hope that someone is as stupid as you?
    Die in a fire, Jack.

  • TheZeitgeist||

    Yeah it is a graph. But then, you're not totoo bright, are you?

    Fixed that one for you, retard.

  • Set Us Up The Chipper||

    Satellite temps are flat, they represent the best data set.

    "Methinks" is trite.

    GISS and other ground data sets are hotly disputed. Until recently their trend was flat but it got adjusted up.

  • Lord at War||

    16 months, compared to mostly inaccurate data from the last 137 yrs, for a planet that is 4.5 billion yrs old... Even if "young-Earth" creationists are right that Earth is only 6000 yrs old, 137 years is still not long enough to know anything.

    I'm totally convinced.

    Please describe the worldwide use of instruments that could measure tempuratures to .1 degree Celsius accuracy in 1880. You are lucky if a "current" mercury thermometer is accurate to 10 times that measure, not to mention the innaccuracy in the moron that's reading it.

    Do you "science", dude?

  • epsilon given||

    What do you have against taking 137 years of mostly inaccurate data and extrapolating that another 100 years? Extrapolation is a perfectly acceptable statistical technique!

    (Well, it's acceptable up to about 10% of the data, so say about 13.7 years...)

  • DaveH||

    Editorial suggestion: We are not here to listen to Nick G's opinions, we want to hear what Epstein has to say. It's fine to steer the conversation if Epstein stalls (he doesn't) or if he is going off into the weeds (he doesn't), but please let him finish his idea before interrupting with the next essay/question.

  • Azathoth!!||

    Totally talking to a dead thread here, but am I crazy--does Epstein look amazingly like Gary Shandling?


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