Speaker 1: Welcome, Welcome, Welcome back to the Bob Left Sets podcast.
Speaker 1: My guest today is warrants Less, Harvard law professor, noted
Speaker 1: legal scholar in candidate for president in glad to have you.
Speaker 1: Glad to be here, Bob, thanks for having me. Okay,
Speaker 1: Can the legal system save democracy? Yeah? No, only the
Speaker 1: people can save democracy. Legal system is a very poor
Speaker 1: backup for that. So, knowing that, what would you advise
Speaker 1: the people to do or how do we move down
Speaker 1: that path? Well, my own view is we have an
Speaker 1: existential crisis facing us right now with this next election,
Speaker 1: and it's critical not just um to get responsible leadership
Speaker 1: in the White House, but also to get a Senate
Speaker 1: that is responsive to the needs of Americans. And if
Speaker 1: we could get both of those things, then I think
Speaker 1: the first thing that next Congress needs to do is
Speaker 1: to take up the challenge of removing the corruption that
Speaker 1: that's at the core of our of our government, and
Speaker 1: that's by passing the kind of reform that makes it
Speaker 1: so that representatives care about what the people want instead
Speaker 1: of what the tiny fraction of funders of their campaigns want.
Speaker 1: Let's start right today, Right as we speak, there's a
Speaker 1: crisis with the USPS United States Postal Service. Uh, they're
Speaker 1: going to have hearings. Can hearings make any difference? Yeah,
Speaker 1: what we've seen is that there's basically nothing that stops
Speaker 1: this president. And so as as extraordinary as the post
Speaker 1: post office crisis is, I think it's even more astonishing
Speaker 1: to think what it signals about what's going to come,
Speaker 1: because you know, what the president is doing with the
Speaker 1: post office is literally, um, incomprehensible. I mean Jackson. It
Speaker 1: turns out Saint Jackson did something similar way back in
Speaker 1: the day when he was trying to get Martin van
Speaker 1: Buren to be elected after him. Um. But since then
Speaker 1: there's been a pretty clear understanding that the infrastructure of
Speaker 1: the post office is not a political pawn for the president.
Speaker 1: But here you have a president who has appointed his
Speaker 1: number one contributor to dismantle the infrastructure of the post
Speaker 1: office for the purpose of making it harder for somebody
Speaker 1: to beat him in the next election. Now, of course,
Speaker 1: the post office is not just a system for delivering ballots.
Speaker 1: You know, there are people who have medicine, um, who
Speaker 1: need that medicine, who will have that medicine delayed because
Speaker 1: the post office isn't functioning well. I I sold two
Speaker 1: things on eBay. It took six weeks for them to
Speaker 1: be delivered using you know, the standard parcel post. The
Speaker 1: standard away should have taken four days. Um. So we
Speaker 1: are dismantling infrastructure to make it easier for him to
Speaker 1: be re elected. Now, the idea that he to do
Speaker 1: that shows there's nothing he want to And what terrifies
Speaker 1: me is that the system we have for electing the
Speaker 1: president is so fragile. It depends on people of good
Speaker 1: faith on both sides participating in election. If you have
Speaker 1: somebody acting in bad faith, especially with courts as pathetic
Speaker 1: as our courts have been. UM, I'm not sure what
Speaker 1: happens when he does everything he possibly can to make
Speaker 1: sure that he gets another four years in office. Let's
Speaker 1: talk for a second. What is Larry Lessig selling on eBay?
Speaker 1: I was selling some used technology. I had an original
Speaker 1: Apple TV and then I had from a G three
Speaker 1: power book. I had one of those c D drives
Speaker 1: for the G three power Book, which you know, got
Speaker 1: ten dollars on any pay but whatever, okay, because the
Speaker 1: remuneration is so low and the effort involved, I wouldn't
Speaker 1: say as significant, but certainly takes time. Do you appreciate
Speaker 1: the experience? Why do you take time out as opposed
Speaker 1: to just leaving this stuff on the shelf for recycling it? Yeah?
Speaker 1: You know my wife, Um, I love my wife. My
Speaker 1: wife is obsessed about recycling and waste. So um, you know,
Speaker 1: the the expense of the time, the hassle uh in
Speaker 1: selling is tiny compared to that guilt that I would
Speaker 1: feel if I if I tried to get rid of
Speaker 1: it in the in the more rational way. So yeah,
Speaker 1: I I try to sell it now. You know some
Speaker 1: of these things like you know, the CD for a
Speaker 1: G three power book. Um, there are not many out there.
Speaker 1: And if you've got a G three Power book, I
Speaker 1: don't know what you're using it for, but you know,
Speaker 1: I'm sure you're happy to have that CD. So um,
Speaker 1: part of me is okay with it. Okay. Staying on
Speaker 1: that same topic, you know, there're been a lot of articles,
Speaker 1: even the New York Times magazine that recycling doesn't work.
Speaker 1: I know this is a little off topic going to
Speaker 1: your wife, but you have any take on that. Yeah,
Speaker 1: we certainly have not built up a profitable infrastructure for recycling.
Speaker 1: And you know, there's I think there's a real debate.
Speaker 1: Are we just trying to train people so that when
Speaker 1: we get to that profitable infrastructure, we can deploy it effectively. Um.
Speaker 1: Obviously other countries are much more creative about ways to
Speaker 1: reduce or to channel waste. Um. You know, in Switzerland
Speaker 1: you pay per I can't remember it's cubic meter or pound,
Speaker 1: but whatever, you have this extraordinarily high price you pay
Speaker 1: for every bag of trash that you might want to
Speaker 1: get rid of. So it really changes that consumption pattern.
Speaker 1: And and um, you know, we experiment with what we
Speaker 1: can here. I've got three kids. Um, so there's a
Speaker 1: limit to how idealistic we can be about these issues. Okay,
Speaker 1: let's go back to the postmaster. Assuming you were advising
Speaker 1: the Democrats, are those in power, what strategy would you
Speaker 1: employ to try to fix this situation? Well, I don't
Speaker 1: know that there is a strategy now. I mean what
Speaker 1: frustrated me in March and April is that they did
Speaker 1: use the leverage they had over the response to the
Speaker 1: COVID crisis to guarantee that we would have the infrastructure
Speaker 1: necessary to make this election work. Um. Everyone was so
Speaker 1: obsessed with, like what do we do in the immediate term,
Speaker 1: and of course in the immediate term they bent over
Speaker 1: backwards to make sure businesses and relatively successful people were
Speaker 1: taken care of, and there was a little bit of
Speaker 1: a you know, six benefit that everybody could take advantage
Speaker 1: of if they needed it. But they didn't build in
Speaker 1: the guarantee for vote by mail at the states, and
Speaker 1: they certainly didn't guarantee build in a guarantee that the
Speaker 1: Post Office would have the capacity to do what it
Speaker 1: needs to do. Having not done that, um, you know,
Speaker 1: I think the most that they can do now is
Speaker 1: just to drive people's focus to this fact. Now, that's
Speaker 1: that's a hard thing to do in the media environment
Speaker 1: that we live in right now, because you know, a
Speaker 1: certain chunk of America is focused on a channel or
Speaker 1: a couple of channels that will never cover any of
Speaker 1: these issues in a way that reveals will suggest that
Speaker 1: there's anything problematic with what the president is doing. Um.
Speaker 1: And so you know, it's there's a limit to the
Speaker 1: extent to which the Democrats can even get people to
Speaker 1: recognize what's happening. But I think that, you know, we
Speaker 1: need to begin a drumbeat of getting people to realize
Speaker 1: a just how um just how extraordinary, how unprecedented. This
Speaker 1: behavior is number one and number two. Get people to
Speaker 1: begin to reflect on what will America look like if
Speaker 1: this man is re elected in a way that everybody
Speaker 1: believes is just theft. Um. You know, how does the
Speaker 1: nation hold itself together? Because I think, you know the
Speaker 1: other side, my side has been pretty patient after two
Speaker 1: thousand and two thousand sixteen. Those were two elections that
Speaker 1: were ordinary. They happened to flip the result from the
Speaker 1: Democratic majority. But through ordinary process. We could argue about
Speaker 1: Bush Vigor and Florida. But okay, we'll accept it. But
Speaker 1: the idea that this man would be reelected through means
Speaker 1: that people perceive as basically fraudulent or criminal and then
Speaker 1: expect to govern peacefully, I think is just crazy talk.
Speaker 1: And I'm terrified about what happens to our nation. Um
Speaker 1: if we get to a place where that has happened
Speaker 1: and there's no effective remedy, because obviously Congress can't impeach
Speaker 1: the man. The partisan premise of Congress means there's no
Speaker 1: impeachment at least depending on who controls the Senate and UM,
Speaker 1: and that means that we're not going to have any
Speaker 1: opportunity to remedy what you know will be an astonishing
Speaker 1: moment in American history, the basic theft of the basic
Speaker 1: theft of an election. Well, if we look at what
Speaker 1: we'll call the Black Lives Matters protests with George Floyd,
Speaker 1: it's he was not the first African American whose life
Speaker 1: was taken at the hands of the police force. Yet
Speaker 1: there was an international conflagration of protests after that. Uh,
Speaker 1: do we anticipate any protests either before or after the
Speaker 1: election spontaneously because as you said earlier, it depends on
Speaker 1: the public serving the public. So does the public have
Speaker 1: to rise first and then pull the politicians along with them. Well,
Speaker 1: I don't expect unless there's some well, I mean, let's
Speaker 1: be clear, there there are scenarios where, yes, there would
Speaker 1: certainly be extraordinary protests in advance. So our constitution, which
Speaker 1: is um, as I said, extremely fragile here, according to
Speaker 1: the Supreme Court, plainly allows a state like Florida to
Speaker 1: declare that, um, it's not gonna have an election and
Speaker 1: it's just gonna pick its electors how it wants. So
Speaker 1: Florida could declare before the election at least it's clear
Speaker 1: after the election it's not as clear, but before the election,
Speaker 1: the legislature could vote, well, we're not going to have
Speaker 1: a vote, We're just gonna give the electors to the
Speaker 1: Republican Party. If states do something like that, I think
Speaker 1: you'll see tons of protests before the election. But if
Speaker 1: we go through and we try to have a real
Speaker 1: election and um, and it seems like there have been
Speaker 1: games that have been played or I don't know why
Speaker 1: we call it games. If there's criminal um, corruption of
Speaker 1: the process of voting, uh, and afterwards, the consequence of
Speaker 1: that is that um, President Trump is re elected. I
Speaker 1: certainly think there will be extraordinary protests. How I'll be
Speaker 1: out there with them because it is just not acceptable,
Speaker 1: and it's there's a certain moment at which you've got
Speaker 1: to stand up and fight for a democracy. And and
Speaker 1: we've seen so much contrary to the norms of democratic
Speaker 1: order over the past three years that at some point
Speaker 1: we've got to say we can't accept it anymore and
Speaker 1: do whatever it takes to make sure that it doesn't
Speaker 1: have its effect. For those who are not constitutional scholars,
Speaker 1: could you please walk slowly through the process of Florida
Speaker 1: or another state picking electors and essentially punting the election. Well,
Speaker 1: the Constitution, of course, doesn't directly elect I'd say that
Speaker 1: the president will be directly elected. What it says is
Speaker 1: that states get to a point in whatever manner, they
Speaker 1: choose electors, and their electors then vote for the president. So, um,
Speaker 1: the states appoint the electors. So they set up the
Speaker 1: process to appoint the electors through state law. And if
Speaker 1: prior to an election, the state changes its law and says,
Speaker 1: you know, we originally thought there'd be an election, but
Speaker 1: now there won't be an election. We'll just pick a
Speaker 1: slate of Republican electors. The Supreme Court has said, most
Speaker 1: recently in Bush versus Gore, but before that a hundred
Speaker 1: years ago, in a case called McPherson versus Blacker, that
Speaker 1: this that the states retain the right quote at any
Speaker 1: time to recall the selection of electors and execute extors
Speaker 1: eyes that power themselves. Now at the founding, there are
Speaker 1: many states that did exactly that. Many states didn't have elections,
Speaker 1: They just picked electors. Um. Some states had elections, um um.
Speaker 1: Some of those elections were by district, others were at
Speaker 1: the at the state level like we have today. Um.
Speaker 1: So there are lots of different systems. Originally, we've all
Speaker 1: converged now in the idea of the public having a
Speaker 1: say through a vote, But the constitution doesn't say that
Speaker 1: it must have a say through a vote. And so
Speaker 1: if the state of Florida, governed by a Republican legislature
Speaker 1: and a Republican governor, comes to believe that the only
Speaker 1: way Donald Trump gets re elected is if Florida goes
Speaker 1: with Donald Trump, and the polls seemed to suggest that
Speaker 1: it won't, I am I would not be at all
Speaker 1: surprised if they exercise this power to say that Florida
Speaker 1: doesn't get a vote. Um. And I think what ought
Speaker 1: to be happening right now is that people ought to
Speaker 1: be clear about this possibility and demand that people like
Speaker 1: the governor of Florida UH or the people running the
Speaker 1: legislature in Florida, answer the question will you promise to
Speaker 1: have an election? Will you promise not to cancel the election?
Speaker 1: Because I think that there are so many scenarios where
Speaker 1: you know, the pandemic recurs and there's all sorts of
Speaker 1: anxiety about safety, and they say, well, we can't safely
Speaker 1: imagine people going out and voting, and so rather than
Speaker 1: risking their lives, we're going to cancel the election, and
Speaker 1: we know that there's a Republican state anyway, so we'll
Speaker 1: just give it to the Republican electors. There's so many
Speaker 1: ways they could get away with it, and so I
Speaker 1: think we right now need to start saying, Okay, just
Speaker 1: be clear, are you going to commit to an election
Speaker 1: and are you going to commit not to cancel the
Speaker 1: election no matter what? Because you know, you know, we've
Speaker 1: we've run elections during wars, We've run elections during the
Speaker 1: Civil War. Uh. You know, Lincoln was re elected in
Speaker 1: eighteen sixty four, it was another year before the war
Speaker 1: was over. Um. So we've done it before, and I
Speaker 1: think we need to be committed to doing it now.
Speaker 1: But the danger is that there could be a strong
Speaker 1: incentive for some states to flip if they're going to
Speaker 1: try to make sure Donald Trump gets reelected. Okay, there
Speaker 1: was a recent Supreme Court case relative to the obligation
Speaker 1: of electors to vote according to the public will could
Speaker 1: you explain that case in the effect thereof yeah, it's
Speaker 1: actually my case. So um I UM UH was working
Speaker 1: with electors from the state of Washington and UM and
Speaker 1: my organization Equal Citizens had sort of teed up this
Speaker 1: case both in Washington and Colorado because in two thousand
Speaker 1: sixteen there was a question raised whether electors are free
Speaker 1: to cast their ballot however they wish um, And we
Speaker 1: thought it was really important that the Supreme Court answer
Speaker 1: the question whether they have that freedom before it creates
Speaker 1: a constitutional crisis. So we teed up the case and
Speaker 1: we got electors in UM in Washington in state um uh.
Speaker 1: These electors had been fined because they had voted contrary
Speaker 1: to their pledge in and then there was an elector
Speaker 1: in Colorado who had been kicked off UM. He cast
Speaker 1: his vote contrary to his pledge and he was kicked
Speaker 1: off and replaced with another elector. And so the question
Speaker 1: we wanted the court to answer was whether, by being
Speaker 1: given the power of a quote elector and told to
Speaker 1: cast quote their votes, they're allowed to vote however they want,
Speaker 1: or whether, as Justice Kegan put it, like a Soviet system,
Speaker 1: they had to vote as they were directed. Well, the
Speaker 1: answer to the Supreme Court was it's a Soviet system, um,
Speaker 1: they have to vote as they are directed. UM. And
Speaker 1: that made a lot of people happy because they don't
Speaker 1: like the idea. And I understand at first glance why
Speaker 1: one would not like the idea that electors have this
Speaker 1: kind of discretion. Um. I actually, by the end of
Speaker 1: the case, I argued the case in the Supreme Court,
Speaker 1: or I argued it by telephone from my office in
Speaker 1: the Supreme Court. Um. But by the end of that,
Speaker 1: by the end of my preparation for that case, I
Speaker 1: became pretty con vince that it was going to be
Speaker 1: a huge mistake if the Supreme Court said that electors
Speaker 1: didn't have discretion, because you can imagine that discretion being
Speaker 1: the final safety valve in this whole disaster of an
Speaker 1: election that we're seeing. But but the way the Court
Speaker 1: decided it, electors are basically pawns. They can't do anything
Speaker 1: except what they're directed by their state to do. And so, um,
Speaker 1: if they're directed to vote one way, they're gonna have
Speaker 1: to vote that way regardless. And so what do you
Speaker 1: feel about the status today? Well, I think that there
Speaker 1: are many ways in which this goes south. Um. Uh,
Speaker 1: you know, he's just one. You know, imagine God forbid,
Speaker 1: but imagine uh Joe Biden m wins the popular vote
Speaker 1: but then passes away before the Electoral College votes the twenties.
Speaker 1: Amendments passed in the nineteen thirties addresses the case where
Speaker 1: a candidate dies after the Electoral College votes, but before
Speaker 1: he's sworn in as president, and they expressly thought to themselves, well,
Speaker 1: there's no reason for us to deal with the problem
Speaker 1: of a candidate dying before the Electoral College votes, because
Speaker 1: the electors have a discretion. They can decide to vote
Speaker 1: however they want. And so if you know Joe Biden died,
Speaker 1: you would imagine all the electors would vote for um
Speaker 1: uh uh Kamala Harris. But the Supreme Court's decision means
Speaker 1: they have to vote as their directed to vote. And
Speaker 1: though the Court said, we're not actually addressing that case here,
Speaker 1: we're not addressing that question. Um. If that scenario happens,
Speaker 1: there's going to be a fight because if they vote,
Speaker 1: if they're required to vote for Joe Biden, and then
Speaker 1: they vote for Joe Biden, Joe Biden's vote can't be
Speaker 1: counted because Joe Biden is not alive. So that means
Speaker 1: it would throw the election into the House of Representatives,
Speaker 1: and the House of Representatives under the constitution, votes one
Speaker 1: vote per state, so you could have a clear majority
Speaker 1: of people voting for a Democrat. But depending on how
Speaker 1: the elections happen in you could have a majority of
Speaker 1: states that are Republicans, state delegations that are Republican. So
Speaker 1: you could have the Democrat win the popular vote and
Speaker 1: would have won the electoral College vote, but for the
Speaker 1: weird way that the votes get real allocated. But the
Speaker 1: way the system ultily results is that House of Representatives votes,
Speaker 1: and the House of Representatives votes for the Republican and
Speaker 1: and again I think most people would be astonished at
Speaker 1: that result. But that's plainly on one track in the
Speaker 1: way that this election might unpack. What is the experience,
Speaker 1: whether it be live or over the phone of arguing
Speaker 1: before the Supreme Court certainly views of the some other
Speaker 1: lower court, so it's pretty inferior compared to a lower court. UM.
Speaker 1: I had two arguments in the last couple of one
Speaker 1: in May and one in June or one in July.
Speaker 1: One in the Supreme Court it was in May, and
Speaker 1: one in a district court was in July. And the
Speaker 1: problem with the argument in the Supreme Court is that
Speaker 1: the Chief Justice set it up so every justice gets
Speaker 1: basically two minutes to ask questions. UM. And uh, you know,
Speaker 1: that's less than a congress person has. And so they
Speaker 1: come into their argument with a list of questions. They're
Speaker 1: not really listening to what other people have asked and
Speaker 1: not really interested in creating a understanding around the argument
Speaker 1: about the case. They're just interested in getting their particular
Speaker 1: questions asked. So it it's a very it was a
Speaker 1: very unsatisfying experience because I felt like so much was
Speaker 1: being missed and every single answer you gave could be
Speaker 1: no more than a hundred words, you know, no more
Speaker 1: than a minute, because the chief would cut you off
Speaker 1: so that somebody else can ask a question. When I
Speaker 1: argued in the district court in California before Judge Judge
Speaker 1: chen Um, uh you know, we had it was just
Speaker 1: me and another guy and this uh Ted Olsen, pretty
Speaker 1: significant lawyer Um and the judge. You know, we probably
Speaker 1: went on for an hour an hour and a half.
Speaker 1: The judge asked questions, He let us answer them as
Speaker 1: long as it took to answer them. He probed the questions.
Speaker 1: He you know, he really understood by the end our argument,
Speaker 1: whether he agreed with it or not as a separate question.
Speaker 1: But the point is it was an actually effective context
Speaker 1: for for engaging in in in the question. And and
Speaker 1: what's frustrating is, Um, you know, the case that I
Speaker 1: was arguing in the District Court involving a regulation involving
Speaker 1: cell phones. Um, you know, we think it's important enough,
Speaker 1: but it's not the Constitution. And so the idea that
Speaker 1: you would end the argument and feel like the judge
Speaker 1: understands the question and can now decide for this cell
Speaker 1: phone issue, but the Supreme Court barely pierces the issue
Speaker 1: around the Constitution's uh electoral college was ultimately incredibly unsatisfying.
Speaker 1: I've argued, you know, live in the Supreme Court, and
Speaker 1: the differences when you argue live, there's no you know,
Speaker 1: they don't go around one by one and say, what's
Speaker 1: your question, Justice Thomas, what's your question? Justice ginsburg Um.
Speaker 1: They just basically the person starts arguing and then people
Speaker 1: interrupt him or her and ask questions, and that dynamic
Speaker 1: actually builds, um, a kind of arc of the argument.
Speaker 1: So you can the questions build of each other, and
Speaker 1: by the end the case has kind of been you know, resolved,
Speaker 1: you kind of understand the strong points and the weak
Speaker 1: points on the basis of how people have engaged in
Speaker 1: the argument. Now, even then, I think the Supreme Court
Speaker 1: has been wildly to conservative and the amount of time
Speaker 1: that it gives people to engage with them, um, you know,
Speaker 1: and uh and and maybe you know, there was a
Speaker 1: time when the Court was deciding a hundred and fifty
Speaker 1: cases a year. It's down now to like less than eighty. Um.
Speaker 1: So it's not I don't understand why they can't give
Speaker 1: it more time. But um. But in either context, it's
Speaker 1: not as great as it can be in the kind
Speaker 1: in you know, other contexts like lower courts, and you
Speaker 1: get stage freight or you intimidated at all in arguing
Speaker 1: in front of the Supreme Court. I don't think that
Speaker 1: I felt frightened. Um. You know, so no, I don't.
Speaker 1: I don't feel that, I imagine, um, you know. Part
Speaker 1: of that is just I had the extraordinary experience of
Speaker 1: clerking at the court, and that was you know, an
Speaker 1: honor and um and incredible fund. But it also is
Speaker 1: an experience that taught you just how human the justices were.
Speaker 1: And uh. And you you know, you realize these you're
Speaker 1: not legal gods, um uh. And they're just trying to
Speaker 1: understand the case, and you're kind of helping them to
Speaker 1: understand the case. So it's not about being afraid of them. Um,
Speaker 1: they're not gonna you know, evict you from the country
Speaker 1: or get you fired. Um, it's just trying to figure
Speaker 1: out how you bring them to the right place and
Speaker 1: and and that's always hard. It's you know, it depends
Speaker 1: on the case. It can be extremely hard, especially when
Speaker 1: the result that you're arguing for would be a very
Speaker 1: difficult result for the court to give given the political
Speaker 1: reaction to that. So, you know, our side was arguing
Speaker 1: electors were constitutionally free. UM. And we thought that was
Speaker 1: an important position, and we thought, you know, I would
Speaker 1: defend what the electors that I was representing did. There
Speaker 1: was a CNN documentary about them on Saturday night. UM.
Speaker 1: And you know, the basic story with these electors was
Speaker 1: that after they saw that the candidate they were going
Speaker 1: to vote for, Hillary Clinton, was not going to win,
Speaker 1: they tried to work with Republican electors to get enough
Speaker 1: of them to vote for someone other than Donald Trump,
Speaker 1: so that the House of Representatives could then decide should
Speaker 1: Donald Trump be the president or should another Republican be
Speaker 1: the president. Nobody imagined Hillary Clinton would be the president,
Speaker 1: so they were trying to exercise their discretion um to
Speaker 1: bring about a result that was closer to what the
Speaker 1: people who had voted for them wanted than the election
Speaker 1: of Donald Trump would have been. But uh still, I
Speaker 1: think when people talk about the so called faithless electors,
Speaker 1: that's how they're referred to. It kind of scares people
Speaker 1: to imagine electors having that kind of discretion. So if
Speaker 1: the Court had ruled with us UM, you know, I
Speaker 1: would be suffering an extraordinary amounts of hate from people
Speaker 1: all across the country saying, how could you do such
Speaker 1: a thing. Now, Donald Trump can bribe these electors and
Speaker 1: they can vote however he wants them to vote, and
Speaker 1: all of that, I think it's just crazy talk. But
Speaker 1: but it still would have been anxiety producing and maybe
Speaker 1: anxiety is the last thing the world needs right now
Speaker 1: in the middle of this election. Staying with the Supreme Court,
Speaker 1: the Conservatives tend to go with an originalistic originalism interpretation
Speaker 1: of the Constitution. Give me your take on so they
Speaker 1: want you to believe, But I don't think it's actually
Speaker 1: true that that principle constrains them. It's more tool that
Speaker 1: they can deploy when it fits with what they they
Speaker 1: think they have to say, or what they what they
Speaker 1: want to say. You know, I I've argued two cases
Speaker 1: in the Supreme Court where the originalist answer was pretty clear.
Speaker 1: The first case I argued was a case about whether
Speaker 1: Congress has the power to extend the terms of an
Speaker 1: existing copyright. So this was the sunny bono Copyright Term
Speaker 1: Extension Act. Congress extended the term of copyrights in eight
Speaker 1: by twenty years. That was the I think the eighteenth
Speaker 1: time they had extended the term of copyright, and that
Speaker 1: prior to twenty five years. Um. And so our claim
Speaker 1: was the Constitution says Congress has the power to set terms,
Speaker 1: set quote limited times for copyright, and it makes no
Speaker 1: sense to say that every time that limit expires they
Speaker 1: can extend it again and again and again. And we
Speaker 1: had tons of originalist argument to say the frameworks were
Speaker 1: very skeptical about the monopoly of a copyright and they
Speaker 1: would want it restricted. Um. And I went, I made
Speaker 1: that argument, and I fully expected the Conservatives would pipe
Speaker 1: up and say, yes, that's what the originalist position is.
Speaker 1: But they sat silent, and they joined. The five of
Speaker 1: them joined an opinion by Justice Ginsburg, who's not an originalist,
Speaker 1: So there's no complaint against her um which allowed Congress
Speaker 1: to do whatever the hell they wanted. UM. And the
Speaker 1: same thing with this case. UM. You know the original understanding.
Speaker 1: You know, Justice Jackson, in an opinion two said, no
Speaker 1: one faithful um to our Constitution can deny that the
Speaker 1: framers contemplated what's implicit in the text, that electors would
Speaker 1: have would be free agents, free to cast their vote
Speaker 1: however they wanted. So an originalists would look at this
Speaker 1: and they look, there's no doubt that's what they expected.
Speaker 1: Whether that's what we expect or whether we should continue
Speaker 1: to respect that as a separate question, but there's no
Speaker 1: doubt that's what they expected. And an originalist I would
Speaker 1: have thought, would have taken that seriously. But once again
Speaker 1: the originalists were silent that the opinion UM written by
Speaker 1: Justice Kagan is not Justice Keagan is not an originalist.
Speaker 1: Justice uh Thomas wrote a concurrence. He agreed with one
Speaker 1: part of our argument. He added something else from left field,
Speaker 1: but but there too he was not constrained by original understanding.
Speaker 1: So I I still have faith that will get them
Speaker 1: to do the originalist thing when it's an important thing
Speaker 1: to do, even when it's not an important thing to
Speaker 1: do for conservatives, just an important thing to do for
Speaker 1: the constitution. But I don't think it's fair to say
Speaker 1: that they're consistent originalists out there. To what degree is
Speaker 1: the Federalist Society important and impacted the court system? Leave,
Speaker 1: Let's say the Republicans have played a long game over decades.
Speaker 1: They were a minority in the educational system, They invested money,
Speaker 1: they formed this organization. In the decades later, it seems
Speaker 1: to be paying off. So to what degree is that
Speaker 1: an effect? And to what degree is their concomitant effort
Speaker 1: on the other side, the Federal Society has been the
Speaker 1: most success full influence organization in setting the direction of
Speaker 1: the federal judiciary ever. You know, it's begun in the
Speaker 1: early nineteen eighties at Yale Law School, UM, Stephen Calibraze
Speaker 1: and someone else. I'm blanking on the person's name. It
Speaker 1: might be Lee Lieberman, UM start the start the organization,
Speaker 1: And originally, you know, it started the Yale Law School,
Speaker 1: which is a hotbed of liberalism. It started really UM
Speaker 1: as an intellectual balance, as an organization that tries to
Speaker 1: create an opportunity for conservatives to express their views in
Speaker 1: a context where mainly liberals were um, holding holding the court, um,
Speaker 1: the local law school court. Um. And you know, I
Speaker 1: think from that, from that perspective, what they were doing
Speaker 1: was perfectly fine. It was great because of course, adding
Speaker 1: diversity to the intellectual environment of law school is what
Speaker 1: we should all be aspiring to do. But over time
Speaker 1: they developed very tight connections with the infrastructure for appointing judges,
Speaker 1: and they almost became a kind of clearing house. Um.
Speaker 1: You know, the ADA is supposed to be a clearing house.
Speaker 1: The American Bar Association supposed to vet judges and give
Speaker 1: their views thumbs upper, thumps down about qualifications. Um. But
Speaker 1: the Federalist Society became an almost um you know uh
Speaker 1: um a farm league or a feeding uh, a system
Speaker 1: for feeding a supply of judges to presidents. Republican presidents
Speaker 1: keen to appoint more judges. So at the lower court,
Speaker 1: in the lower courts, district courts and courts of appeals,
Speaker 1: they've been enormously important. And um, you know, this president
Speaker 1: has appointed an extraordinary number of judges. I think the
Speaker 1: numbers something like three hundred. But the point is, Mitch
Speaker 1: McConnell views, this is the one thing he knows he
Speaker 1: can get done UM, and he has bent over backwards
Speaker 1: to a point as quickly as he can. Practically everybody
Speaker 1: who's come through UM. There's no UM filibuster check anymore
Speaker 1: that allows UM a minority to stop that type of appointment.
Speaker 1: And we've seen some extraordinary appointments. People which the A, B.
Speaker 1: A is that are plainly not qualified have been appointed
Speaker 1: nonetheless because they are perceived to be UM extremely loyal
Speaker 1: in a partisan sense at the lower Court. And we'll
Speaker 1: see what the long term effect of this is will be. UM.
Speaker 1: You know, I'm not somebody who believes that a person
Speaker 1: who's a conservative is not qualified to be on the
Speaker 1: court I or any court. I clark for Judge Posner,
Speaker 1: the Seventh Circuit judge Judge Easterbrook was on the court
Speaker 1: at the same time. They were both Reagan appointees, extremely conservative,
Speaker 1: but you know, two of the best legal minds in
Speaker 1: the history of America. So I think that there's you know,
Speaker 1: extremely talented people on the right, like there are talented
Speaker 1: people on the left. But I think that this effort
Speaker 1: to appoint reliable votes as opposed to talented conservative lawyers
Speaker 1: is a real mistake because it really UM dilutes the
Speaker 1: integrity of the judiciary, and UM we've already seen um,
Speaker 1: the beginnings of that. And I fear, you know, these
Speaker 1: appointments of people who are in their forties, UM, thirties
Speaker 1: in some cases, UM isn't a is a It is
Speaker 1: an act that's going to have an effect for the
Speaker 1: next thirty years, next forty years. Well other than railing
Speaker 1: against this and being aware of it, certainly under Trump's reign, UH,
Speaker 1: is the other side doing anything or they organized to
Speaker 1: combat this effort by the right. I don't think that
Speaker 1: they're organized in the same way. There's an you know,
Speaker 1: a parallel organization called a c S UM, the American
Speaker 1: Constitution Society, which UM, you know UH runs liberal direct
Speaker 1: directed conversations on law school campuses. But they have not
Speaker 1: tried to build the same kind of recruiting infrastructure. I mean,
Speaker 1: you know, you could call the head of the a
Speaker 1: c S and the of the a c S. I'm
Speaker 1: sure we'll have people to recommend, but it's not like
Speaker 1: the business model. UM. So you know, if there's a
Speaker 1: democratic president elected, UM, and there's democratic control of the Senate, UM,
Speaker 1: I expect there will be a lot of democratic judges
Speaker 1: um who are or judges appointed by the Democratic Party who? Um?
Speaker 1: Um you know who? Um. I will say, maybe this
Speaker 1: is just stupid blindness or ignorance or bias on my part.
Speaker 1: I will say they they are not going to be
Speaker 1: people who the A B A says they're not qualified. Um.
Speaker 1: You know, there might be young people. I hope they
Speaker 1: are young people. Um, but they're not going to be
Speaker 1: um that kind of people that Ms McConnell has affected.
Speaker 1: And that's a good time. Okay, let's switch to an
Speaker 1: earlier point, which is the silos that people receive their
Speaker 1: information and leedless. Just say, in a three network world,
Speaker 1: we have the fairness doctrine. Uh, if we ultimately go
Speaker 1: all the way to see clear broadcasting, there used to
Speaker 1: be a limit of the number of television stations you
Speaker 1: could own. However, on the other side, their social media.
Speaker 1: There's Facebook, there's Twitter, Snapchat and the other outlets that
Speaker 1: there was just yesterday in the newspaper that uh, Facebook
Speaker 1: increases the views of holocaust deniers. So what do we
Speaker 1: do with a the raw issue of people not being
Speaker 1: informed and be to what degree to these outlets contribute
Speaker 1: to it? And what can we do about that. This
Speaker 1: is the worst and hardest problem. Um So, first we
Speaker 1: have to identify the source of the problem. And the
Speaker 1: source of the problem is not technology and the abstract.
Speaker 1: The source of the problem is the business model of
Speaker 1: the technical technology platforms as well as television stations. You know,
Speaker 1: when there were three networks, the business model of news,
Speaker 1: which remember was coordinated. It's exactly the same time news
Speaker 1: came on all three networks, so you know, you're watching TV,
Speaker 1: you're gonna watch the news, and the business model of
Speaker 1: those news stations was to shoot right down the middle.
Speaker 1: It was a very kind of plain vanilla approach tell
Speaker 1: the story and the way that was the most inclusive possible.
Speaker 1: I'm not saying it was unbiased in some absolute sense.
Speaker 1: I'm not saying it was comprehensive. There's certain issues that
Speaker 1: never got covered. There's all sorts of ways you could
Speaker 1: criticize it. But what you couldn't say is that it
Speaker 1: was trying to create tribes in America. It you know,
Speaker 1: Walter Cronkite thought that what he was doing was speaking
Speaker 1: to America, and he wanted to tell the truth to America,
Speaker 1: and the consequence of that was a kind of understanding
Speaker 1: a common understanding that was shared by almost everybody, because
Speaker 1: that's all there was, those three networks, and at that
Speaker 1: time every day news was being covered. But once networks
Speaker 1: were no longer the center of television, once cable television
Speaker 1: came along and and you weren't forced to watch one
Speaker 1: of three channels, you could watch one of a hundred
Speaker 1: and money channels. Then the news needed to compete. You know,
Speaker 1: news had to compete with Home shopping or um with ESPN,
Speaker 1: and so it needed to find a way to bring
Speaker 1: people to it. And the critical business model innovation was
Speaker 1: Roger Ales at Fox News. You know, when Fox Rupert
Speaker 1: Murdoch brought Rogers Ales in and he pitches to Fox
Speaker 1: News how he imagines running Fox News. Um, he startles
Speaker 1: everybody by saying that he's not going to try to
Speaker 1: pitch the story to all of America. He's going to
Speaker 1: focus on what he called the base. He's going to
Speaker 1: build a network focused on the base of conservatives. And
Speaker 1: by doing that he would build a loyal and coherent public,
Speaker 1: which it would be easier to sell advertising too. And
Speaker 1: so the idea of the business model focused on a
Speaker 1: fraction of America is the critical change in cable television.
Speaker 1: And initially only he is doing that. But now you know,
Speaker 1: if you look at the ideological content of the three
Speaker 1: major cable networks, they're perfectly separated. You have Fox far
Speaker 1: to the well, not in an absolute sense, but relative
Speaker 1: to UM, I mean Fox far to the right, MSNBC
Speaker 1: to the left, and CNN kind of bouncing in between.
Speaker 1: And that's a business model decision. And the consequence of
Speaker 1: that business model decision is the people who get their
Speaker 1: information from television increasingly come to believe, um, the world
Speaker 1: is different from people who get their information from a
Speaker 1: different channel on television. Barack Obama says, if you if
Speaker 1: you watch Fox News, you live in a different planet.
Speaker 1: And if you read the New York Times, um. And
Speaker 1: so that consequence of this separated tribal world is a
Speaker 1: consequence of the business model of cable television. And it's
Speaker 1: the same thing with the digital platforms. You know, Facebook
Speaker 1: is a platform for selling ads. That's where they make
Speaker 1: their money. I mean they you know, gussie it up
Speaker 1: by pretending it's all about community and all about enabling
Speaker 1: people to share and connect and blah blah blah. But
Speaker 1: the thing it sells Wall Street, the reason why it's
Speaker 1: stock is valuable is that it's an extraordinary machine for
Speaker 1: selling ads. But the way that it sells ads is
Speaker 1: to figure out everything it can about you so that
Speaker 1: it knows exactly what will work with you and so
Speaker 1: that it can promise advertisers a higher return from their
Speaker 1: ads than anybody else. And the way it does that
Speaker 1: is it spies on you. It spies, watches everything you're
Speaker 1: interested in doing, shows where you're, where you're going, who
Speaker 1: you're talking to, what kind of things you're interested in.
Speaker 1: And then after spying, it pokes you. It tries to
Speaker 1: make you angry or happy, and it sees how you respond.
Speaker 1: It's a constant experiment to develop a really sophisticated model
Speaker 1: of you so that it can sell ads. And the
Speaker 1: unfortunate thing for democracy is that it turns out fueling
Speaker 1: this politics of hate is a really effective way to
Speaker 1: learn things about you. If we can like hold up
Speaker 1: the kind of red meat or um uh, you know,
Speaker 1: to kind of inspire you to get angry, you'll engage more,
Speaker 1: you'll share more, you'll be more responsive to what is
Speaker 1: coming across your news feed. And the more responsive you are,
Speaker 1: the more they know, and the more they know the
Speaker 1: better their ads are. And so once again it is
Speaker 1: the business model of the platform that is driving them
Speaker 1: to engage with our political environment in a way that
Speaker 1: weakens our capacity as a democracy to do what we
Speaker 1: need to do in the context of an election, which
Speaker 1: is to come to a judgment about which candidate or
Speaker 1: which party is actually in the best interests of America.
Speaker 1: And in both cases you can imagine a different business model. Um,
Speaker 1: you can imagine a different way of like deploying the technologies.
Speaker 1: But unfortunately we've backed ourselves into the worst possible pair
Speaker 1: of business models. And the consequence of that is these
Speaker 1: platforms are not contributing to a better democracy. They're contributing
Speaker 1: to a more polarized, more tribalistic, less capable democracy than
Speaker 1: one we've had than any we've had since the Civil War.
Speaker 1: Now the ship really is sailed on broadcast television, the ratings,
Speaker 1: the actual number of people watching these news channels is
Speaker 1: astoundingly low. Despite the press. The younger generation is finding
Speaker 1: their information online, so focusing on that, you know, a Twitter,
Speaker 1: they say they're not going to have any political ads
Speaker 1: at all in this cycle. Is there any way to
Speaker 1: address the problem. You just delineated. Well, you know, there's
Speaker 1: this some there's this great health movement called the slow
Speaker 1: food movement. And what the slow food movement says is
Speaker 1: the only way to respond to the terrible way people
Speaker 1: eat is to look at how the human body works
Speaker 1: and fit your consumption to the human body. And so
Speaker 1: it turns out that if you cook your own food
Speaker 1: and you eat it over a long period of time,
Speaker 1: like over dinner with friends, you know, two or three
Speaker 1: hour dinner, that that way of consuming food will be
Speaker 1: the healthiest for you. Like you can't poison yourself the
Speaker 1: way you do with processed food, and um, you'll eat
Speaker 1: the right amounts and you'll eat it in a in
Speaker 1: a at a pace that will actually um complement the
Speaker 1: process in the body. So the fat slow food movement
Speaker 1: is about finding the way to eat that fits our physiology.
Speaker 1: There's an equivalence. We could call it the slow democracy movement.
Speaker 1: And so the slow dog democracy movement, like the slow
Speaker 1: food movement, says, you know, we do democracy well in
Speaker 1: some context, and we do it poorly in other context.
Speaker 1: So we do it poorly in a kind of Facebook
Speaker 1: or Twitter environment, like we get riled up, we we
Speaker 1: you know, act on the basis of a tiny bit
Speaker 1: of information, were easily misled, were easily um guided into
Speaker 1: the wrong understanding of the facts. We're just not good.
Speaker 1: We're not We're not good in that environment. But there
Speaker 1: are environments where we are pretty good. So, you know,
Speaker 1: my favorite is an environment like this, a podcast, UM
Speaker 1: where people have a chance, over a long period of
Speaker 1: time to hear the arc or the development of a
Speaker 1: story or an argument they understand and they have a
Speaker 1: chance to reflect on it the way you know, humans
Speaker 1: have that understanding and their ordinary interaction with ordinary people,
Speaker 1: and that in the context of that type of engagement,
Speaker 1: they learn about issues in a better, more comprehensive way
Speaker 1: than they would ever over Twitter or over their news
Speaker 1: feed on Facebook UM or you know, narrative um uh
Speaker 1: UM content like um television shows that are um you know,
Speaker 1: there are not documentaries necessarily, but that try to tell
Speaker 1: a moral story or tell tell us story about some
Speaker 1: historical moments that gives you a chance to imagine and
Speaker 1: envision and see um played out the tensions of the
Speaker 1: you know, moral issues or the the struggles. You know,
Speaker 1: my favorite, even though there's a million reasons to um
Speaker 1: uh to criticize the series. But like Homeland, which over
Speaker 1: the arc of its six or seven series, you know,
Speaker 1: brought in an incredible number of Americans to a differ different,
Speaker 1: deeper understanding of the story of the Middle East than
Speaker 1: they had when that series began, which was you know,
Speaker 1: this kind of simple, black, white, good versus bad picture
Speaker 1: of the Middle East. I think what the solution is
Speaker 1: U is for us to find ways to channel more
Speaker 1: of politics into context that we have a good reason
Speaker 1: to believe humans can process. Well. Um, you know some
Speaker 1: people's responses to say, we'll get humans out of the mix,
Speaker 1: like let's just have experts, Like forget democracy, let's just
Speaker 1: have a technocracy where you know, the smartest people, you know,
Speaker 1: Harvard law professors, get to decide everything. And you know,
Speaker 1: having known a bunch of Harvard law professors, I can
Speaker 1: tell you that would be a disaster, would be the
Speaker 1: worst thing in the world to imagine turning these decisions
Speaker 1: over to the elite of a araka. But instead of
Speaker 1: like giving up on democracy, I think we have to
Speaker 1: wait to find a way to make democracy work by
Speaker 1: giving people a chance to understand and engage on issues
Speaker 1: in a way that we know they can actually process.
Speaker 1: And so that means channeling away from the five second
Speaker 1: ad or the thirty second ad on television or the
Speaker 1: Facebook feed or Twitter into places where they actually have
Speaker 1: a sense of what the issues are and they can
Speaker 1: get a real sense of the people involved. But how
Speaker 1: does that address the silo issue? Well, we don't have
Speaker 1: the ability, given the First Amendment, to address it through legislation.
Speaker 1: So we're not going to blow up the silos um.
Speaker 1: They're going to exist until they're no longer profitable. So
Speaker 1: the way to deal with the silos issue is to
Speaker 1: just to give people a different sense of what they
Speaker 1: want to do, what they want to consume, and then
Speaker 1: they consume differently maybe hopefully. You know, that's the same
Speaker 1: fight in the d of healthy food movement, like you know,
Speaker 1: if all this unhealthy food, how are you going to
Speaker 1: deal with it? You can't ban it, I mean, you know,
Speaker 1: Michael Bloomberg thought you could basically do that with sodas
Speaker 1: in New York, But you're not gonna across the country
Speaker 1: ban it. The most you can do is get people
Speaker 1: to reflect on like what's the actually healthy way to eat?
Speaker 1: Like what sort of things should you be eating? And
Speaker 1: let's develop the right Um, sensibilities of how we should
Speaker 1: be eating and what balance we should have, and practice
Speaker 1: that take responsibility, you know, both for your diet of
Speaker 1: food and your diet of information. Be a responsible consumer
Speaker 1: in both dimensions. Um. Now, I say that, and I'll
Speaker 1: be the first to say, I'm not optimistic. You know.
Speaker 1: I think that we're at a moment that we literally
Speaker 1: have never been in before, a moment like this. I mean,
Speaker 1: people historians will say the media a hundred years ago
Speaker 1: was just as fragmented, just as polarized as it is today,
Speaker 1: and they're right it was. But the difference is a
Speaker 1: hundred years ago, there was no way to know what
Speaker 1: the public thought. There was no polling, so you could
Speaker 1: have a public that was partisan and divided and lived
Speaker 1: in their own little echo chambers. But actually the people
Speaker 1: who made policy were politicians in Washington, and they understood
Speaker 1: both sides of the issue, and they were engaged in
Speaker 1: real debate and deliberation about what they should be doing,
Speaker 1: and and they did what they did, and kind of
Speaker 1: what the people thought was irrelevant. We live in a
Speaker 1: time where the public is polarized and divided, press is
Speaker 1: completely partisan and drives people in their own little silos,
Speaker 1: but we can see what the people believe, and so
Speaker 1: you can always point back to what the people believe
Speaker 1: as a justification for whatever crazy thing you want to do.
Speaker 1: So seventy four percent of Americans think we need to
Speaker 1: invade a rock, um, you know, based on misrepresentations and
Speaker 1: falsehoods and ignorance about the actual facts. But that's what
Speaker 1: America says. So that's what we have to do. And
Speaker 1: so I think the problem is that we both um
Speaker 1: have a system for un understanding what the people believe,
Speaker 1: but don't have a system for giving people the chance
Speaker 1: to believe what they actually would believe if they understood
Speaker 1: the facts and had a chance to reflect on them
Speaker 1: and deliberate about them. Okay, So you were essentially saying
Speaker 1: there's no place for the legal system to address these
Speaker 1: problems and social networks, not in America, not right now, um,
Speaker 1: because any effort to directly affect the content of these
Speaker 1: networks is going to be resisted by claims the First Amendment.
Speaker 1: I mean, there are things to do on the margin. Um,
Speaker 1: you know, I think that the legal system, you know this,
Speaker 1: Donald Trump has sent something close to this, And I
Speaker 1: don't want to sound like I'm mimicking what he said,
Speaker 1: because I think it's importantly different. But I do think
Speaker 1: that we can think more um Uh, we can think
Speaker 1: it a smarter way about how to make platforms responsible
Speaker 1: so that they don't allow misrepresentations UM to propagate in
Speaker 1: a way that can be destructive. Right now, the legal
Speaker 1: system basically gives them total immunity UM for defamation or
Speaker 1: false information that they are allowed to spread UM. And
Speaker 1: of course, when the business model is as it is,
Speaker 1: where you have a strong interest to spread false information
Speaker 1: for political reasons or even just for advertising reasons, UM,
Speaker 1: that creates a really dangerous incentive. So I think the
Speaker 1: legal system could, on the margin, tweak that and do
Speaker 1: that better. But I don't think that the core problem
Speaker 1: with the business model is going to go away because
Speaker 1: of fixing that. So then you want to say, well,
Speaker 1: can the legal system come in and you know, ban
Speaker 1: advertising UM. And my my view is I'd love to try.
Speaker 1: I'd love to say, let's see what happens if we
Speaker 1: ban political advertising for six weeks before an election. I mean,
Speaker 1: you know, it would be stupid to ban it all
Speaker 1: the time, because you know, advertising is good for selling products,
Speaker 1: and products drive an economy. And it might not make
Speaker 1: sense to say ban advertising for like, you know, the
Speaker 1: local state representatives, because that turns out to be a
Speaker 1: really efficient way for them to get their message out there.
Speaker 1: But where you've got these really polarized and potentially um
Speaker 1: foreign influence driven campaigns for president or for the control
Speaker 1: of Congress, I would love to see what happens if
Speaker 1: we just turn off the mechanism for um tweaking or
Speaker 1: driving the public according to whatever interest the advertiser might have,
Speaker 1: and see what see what happens. Um. I expect that
Speaker 1: you're going to see countries that try to do that,
Speaker 1: and we might learn something from those countries. And it
Speaker 1: would be great if what we learned is that's all
Speaker 1: it takes, just turn off the advertising and uh, you know,
Speaker 1: it's not that social media becomes great, but it doesn't
Speaker 1: become the poison and that that it was in and
Speaker 1: then I think it's to be in now broad concept.
Speaker 1: Do you do you not believe social media, search networks, etcetera.
Speaker 1: Should be liable for the content on their sites. I
Speaker 1: don't think you can answer that simply. Um. I think
Speaker 1: there are contacts in which they should be liable, yes, Um,
Speaker 1: But they certainly should not be liable for everything, regardless
Speaker 1: of the context or the steps that they've taken to
Speaker 1: to avoid that content being there. So I don't believe
Speaker 1: in the absolute immunity that exists right now, and I
Speaker 1: don't believe we should go to a world where they're
Speaker 1: liable for everything that I upload onto a network. You know,
Speaker 1: it's got to be a more sophisticated kind of notice
Speaker 1: and takedown infrastructure than the copyright notice and take on
Speaker 1: infrastructure is. I mean, you know, let's be realistic. So
Speaker 1: it M let's be real about this. It's not like
Speaker 1: networks are immune from every bit of content that's up
Speaker 1: there that might violate the law. I mean, they can
Speaker 1: defame someone and they're you know, there's st free um.
Speaker 1: Or they can allow defamation on their network and they're
Speaker 1: scott free. But you know, if they allow a Disney
Speaker 1: movie to be distributed on their network, UM in violation
Speaker 1: of copyright, they're not scot free. UM. They're gonna be
Speaker 1: responsible if they don't take steps to take that down.
Speaker 1: So we've already decided that some content is important UM
Speaker 1: for us to regulate, to make sure that the legal
Speaker 1: principles are upheld and I think we could do more
Speaker 1: to worry about at least defamation UM. And and you know,
Speaker 1: I have a broader concept of direct manipulation UM. You know,
Speaker 1: in the way that UM these fake videos events that
Speaker 1: is for the purpose of misrepresenting or for um, you know,
Speaker 1: creating descent where the actual facts don't support it. How
Speaker 1: you do it is going to be so hard. I
Speaker 1: don't imagine as a simple statement here or a simple rule,
Speaker 1: but I do think we shouldn't give up on it,
Speaker 1: because I think the consequence of giving up has already
Speaker 1: proven itself to be really devastating. Let's address anti trust. Okay,
Speaker 1: generally speaking, the Republicans have been looser than the Democrats
Speaker 1: on this. We've had a number of very interesting things.
Speaker 1: We have the Books case. The end result was that
Speaker 1: books became more expensive. We had the T mobile Sprint thing,
Speaker 1: where people on the left said, oh, we must have
Speaker 1: these more competitors. Were as anyone who's a student of
Speaker 1: the business said, Hey, Sprint is going to go out
Speaker 1: of business, We're gonna go bankrupt. Then uh, we have
Speaker 1: people like Elizabeth Warren saying let's break up the social networks.
Speaker 1: What are your viewpoints about anti trust? And what should
Speaker 1: the uh UH decisions be made upon. Well, I think
Speaker 1: we should recognize that we basically had no antitrust enforcement
Speaker 1: in the technology sector UM in any significant way since
Speaker 1: the Microsoft decision twenty years ago. And I think that's
Speaker 1: been a mistake. I think we've allowed out these companies
Speaker 1: to get much bigger than they would have gotten had
Speaker 1: ordinary principles of anti trust been deployed consistently throughout the period.
Speaker 1: And I wouldn't blame Republicans for that. I mean, certainly
Speaker 1: I blame Republicans for what happened under George Bush, but
Speaker 1: I blame Democrats for what happened under Barack Obama. And
Speaker 1: the the clearest moments when anti trust should have stepped
Speaker 1: in was under Barack Obama. UM. And now we know
Speaker 1: from you know, Mark Zuckerberg's email, UM that they're intent
Speaker 1: that their game was exactly this kind of anti competitive
Speaker 1: acquisition strategy. And and I think there's a real reason
Speaker 1: to be worried about that. And I think that the
Speaker 1: reason to be worried about it is much more than
Speaker 1: just a pure economic reason. Right, the standard Chicago School
Speaker 1: theory of anti trust is only worry about it if
Speaker 1: there's going to be a harm to consumers. But I
Speaker 1: think you also need to be worried about it because
Speaker 1: it creates these entities that are so powerful that they
Speaker 1: cannot be regulated. And so it's a there's this is
Speaker 1: a um Luigi's and Galis calls the political antitrust, which
Speaker 1: is a concern for the size and power of organizations,
Speaker 1: not just because of the economy, but also because of
Speaker 1: the political democracy. And I think from that perspective, we've
Speaker 1: plainly lost control of Amazon and Google and Facebook. Um
Speaker 1: these are entities which I, you know, as much as
Speaker 1: Elizabeth Warren was, you know, inspirational in her aspiration, I
Speaker 1: think it was kind of crazy talk to imagine the
Speaker 1: government was going to be able to do any of
Speaker 1: the things she was talking about, given the enormous power
Speaker 1: that they have because they're plugged into everybody's lives directly. Okay,
Speaker 1: let's talk about you for a second. Where did you
Speaker 1: grow up? So I grew up in the kind of
Speaker 1: Kentucky part of Pennsylvania, um town called Williamsport, Pennsylvania, which
Speaker 1: is about a Little League World Series exactly right, Um so,
Speaker 1: about eighty miles north of Harrisburg. And I, you know,
Speaker 1: I was there from about the age of six until
Speaker 1: I went to college. Okay, And what were the political
Speaker 1: leanings of your family? So we grew up. I grew
Speaker 1: up a Republican. I was quite an active Republican when
Speaker 1: I was a kid. I was chairman of the Pennsylvania
Speaker 1: Teenage Republicans. I was the youngest member of a delegation
Speaker 1: to the nine eighty Republican Convention. UM, so you know
Speaker 1: we were strong conservatives back then. Okay, what did your
Speaker 1: parents do for a living. My father was a ran
Speaker 1: a steel fabricating coming his own companies steel fabricators called
Speaker 1: Williams Sport Fabricators. It was acquired by a company called
Speaker 1: High Steel um Structures. And my mom um, for at
Speaker 1: least the time I was in high school, was sold
Speaker 1: real estate, but she basically did that as a hobby.
Speaker 1: And how many kids in the family. So I had
Speaker 1: two older siblings and one who are about nine and
Speaker 1: ten years older, and then one younger sister who's two
Speaker 1: years younger than I am. And the older siblings. What
Speaker 1: sex were there? Boy in a girl point a girl?
Speaker 1: So on some level you were in the middle, but
Speaker 1: because of so many years in between. Uh, to what
Speaker 1: degree what were your parents very supportive? Were you lost
Speaker 1: in the shuffle? Where were you in the hierarchy of
Speaker 1: the family. Yeah, you're right, So my older siblings are
Speaker 1: basically gone when I, um, you know, I can actually
Speaker 1: remember anything about my life, and so I think that
Speaker 1: they were extremely supportive. I actually went away to school
Speaker 1: for a couple of years, um, four years, and that
Speaker 1: was a significant Where where did you go to school? UM?
Speaker 1: I went to UM. It was called the Columbus Boy Choir.
Speaker 1: So it was a professional boy choir UM in Princeton
Speaker 1: from sixth to ninth grade. And that was says choir.
Speaker 1: Was it musically oriented? It was a professional boy choir.
Speaker 1: We traveled around the world and we sang. How do
Speaker 1: you even get into that? You know? I was singing
Speaker 1: in my urch choir and my choir director said, you know,
Speaker 1: you do this pretty well. You should try out for
Speaker 1: this boy choir. So I tried out and they told
Speaker 1: me I should come and that that started UM in
Speaker 1: sixth grade. And that was a big chunk of my
Speaker 1: my youth and good experience or bad experience. So you
Speaker 1: tripped into this question, bob uh. Yeah, So I've been
Speaker 1: an article written about this that's not announcing anything to do.
Speaker 1: In some ways, it was the best of times, in
Speaker 1: some ways the worst of times. It was the best
Speaker 1: of times because you know, I was a kid from
Speaker 1: a small town traveling around the world understanding things that
Speaker 1: no one at my age would have understood. It was
Speaker 1: the worst of times because um, for um, two and
Speaker 1: a half of those four years, I was sexually abused
Speaker 1: by the director of the choir. UM and um had
Speaker 1: had a profound impact on everything that happened afterwards. Um
Speaker 1: and uh um, you know, kind of in my mind
Speaker 1: defines what the experience was for me. So UM, I
Speaker 1: don't know. It depends which day I'm thinking about it. Okay.
Speaker 1: Does one ever get over sexual abuse of that nature?
Speaker 1: Can you metabolize it? Does it affect future choices and experiences?
Speaker 1: You never get over it. It's never gone. And some
Speaker 1: people it's profoundly significant in everything they do. You know,
Speaker 1: some people, it probably drives them into their own kind
Speaker 1: of perversions. Some people that creates an extraordinary insecurity or
Speaker 1: um pathology around the ability to connect to people. Um.
Speaker 1: You know, I I think very few people have a
Speaker 1: really clear sense of just how destructive mucking about with
Speaker 1: those emotions of a young child can be um and
Speaker 1: uh and so no, I you know, I would say,
Speaker 1: you know, at the at the shrink level, um, um,
Speaker 1: there's never been a moment that I haven't been affected
Speaker 1: by it. At the professional level, I kind of think
Speaker 1: of most of my professional career as in some sense
Speaker 1: responsive to the the problem that I was obsessed with
Speaker 1: when I was there. So that problem was, you know
Speaker 1: what what struck me about that experience was that, of
Speaker 1: course there was this criminal at the center, um, you know,
Speaker 1: who was pathological and just you know, in some sense
Speaker 1: couldn't stop himself. Um. And I wasn't the only person
Speaker 1: he abused. He was probably depending on the year it
Speaker 1: could have been abusing up to the school. I mean,
Speaker 1: he was just you know, he was insatiable and unstoppable.
Speaker 1: But the more striking thing to me was to reflect
Speaker 1: on the people who were around him and in some
Speaker 1: sense knew but didn't want to step up and stop
Speaker 1: what was happening, either because they turned a blind eye
Speaker 1: or because they thought it would be destructive of the institution,
Speaker 1: or whatever the reason is. They were the enablers. And
Speaker 1: I kind of feel like, if you you know, if
Speaker 1: you really understood the threat of the work that I've
Speaker 1: done from the very beginning of my career. It has
Speaker 1: always been to try to draw attention to the institution
Speaker 1: or the context of the enablers and to ask, you know,
Speaker 1: you know, like the last work I did when I
Speaker 1: was running the Edmund Saffer Center was focused on what
Speaker 1: we called institutional corruption. And that's that's the corruption not
Speaker 1: of criminals. It's not the quid pro quo corruption. It's
Speaker 1: the corruption of the institution where people, good people in
Speaker 1: the institution allow the institution become sensitive to our responsive
Speaker 1: to the wrong kind of desires or interests. So when
Speaker 1: Congress raises money to fund its campaigns, is there's very
Speaker 1: little bribery involved in that, So it's not criminal in
Speaker 1: the traditional sense, but it's producing an institution that is
Speaker 1: um not responsive to the ordinary people. And it's allowed
Speaker 1: to be that way because people enable it and and
Speaker 1: support it, and they're not willing to step up and
Speaker 1: just say this is wrong and we have to change it.
Speaker 1: And so I feel like everything I've done in some
Speaker 1: senses recurred to that same reflection in you know, very
Speaker 1: many different legal context but all of that, you know,
Speaker 1: comes from moments reflecting on what happened to me when
Speaker 1: I was you know, twelve and thirteen and fourteen. Now
Speaker 1: did you age out of that situation or did you
Speaker 1: decide to leave? I aged out. You know, your voice
Speaker 1: changes and you're gone. So my voice changed and I
Speaker 1: was gone. Okay, did this affect your relationships with women
Speaker 1: and girls thereafter? Of course, of course, you know not.
Speaker 1: I mean, I'm happily married to an extraordinary woman. And um,
Speaker 1: I know other people who had the same experience who
Speaker 1: are not. So, you know, I feel but for the
Speaker 1: grace of God, there goes I. Um. But you know,
Speaker 1: in ways I've you know, we've gone far in this
Speaker 1: conversation part further than I think either of us thought
Speaker 1: we would. I don't want to go into the depth
Speaker 1: or the detail of it, but yes, absolutely day to
Speaker 1: day um uh, that hung right in the middle of everything. Okay,
Speaker 1: so you age out, your voice changes? Should go back
Speaker 1: to public high school? What is that experience like? After
Speaker 1: being away for three years? It was difficult. People didn't
Speaker 1: quite understand who, you know, what the experience had been.
Speaker 1: Obviously I didn't tell people what the experience had been,
Speaker 1: but it did. But it really affected how I understood
Speaker 1: the world. I kind of thought, I kind of have
Speaker 1: sex was at the center of everything, because sex was
Speaker 1: at the center of everything when I was twelve, So
Speaker 1: I interpreted everything around me as if somehow sex was
Speaker 1: involved in it. So I remember it's extraordinary moment of
Speaker 1: our neighbor came across the street and to tell me
Speaker 1: that her daughter had just gotten a car and a
Speaker 1: bunch of guys had you know, cleaned the car for
Speaker 1: her and tuned it up. And the way my mind work,
Speaker 1: given the experience I had had, I imagine, you know,
Speaker 1: that sex had to be in that transaction somewhere, like
Speaker 1: that's just the normal thing it would have been there. Um,
Speaker 1: And I said something that reflected that, and she kind
Speaker 1: of was astonished. And I think back on it, and
Speaker 1: even I'm in stolished. It's like completely abnormal way to
Speaker 1: think about the world. But you know, that's where I
Speaker 1: had been delivered. I was delivered thinking that's the normal
Speaker 1: way people interacted because that had been the normal way
Speaker 1: I had seen for you know, many years of my
Speaker 1: life at that point. So you're in high school, you
Speaker 1: fit in, You're a nerd. Where do you fit in
Speaker 1: the social total? Nerds total nerd. You know, I'm in
Speaker 1: the bands, I I run. You know, I'm like a
Speaker 1: leader in student government. I'm a smart kid. Um, I'm
Speaker 1: not the number one, but the number two and um
Speaker 1: you know, and I have a lot of good friends.
Speaker 1: But but you know, the hierarchy of high school, I'm
Speaker 1: not the football player or I'm not the the coolest
Speaker 1: kids in the room. And and I'm obsessed with obeying
Speaker 1: the law. So I don't I don't drink, and I
Speaker 1: don't you know, go out and drive at times I
Speaker 1: shouldn't be in Um. So you know in that sense, yes,
Speaker 1: absolutely a nerve. Well where does that come from? The
Speaker 1: sense you up to us toil the lawn? Legally? That's
Speaker 1: totally my dad. My dad was an obsessive um, you know,
Speaker 1: in the good in a good sense. He just you know,
Speaker 1: completely absolute integrity sort of person. You know. The thing
Speaker 1: I think about all the time with my dad is like, um,
Speaker 1: in college, I worked worked in his firm. In high school,
Speaker 1: I basically worked as a laborer, you know, doing work
Speaker 1: drilling holes and steel. But after college, I I did
Speaker 1: a summer where I was helping their finance departments, you know,
Speaker 1: negotiate a merger and transition, and they the way they
Speaker 1: did businesses they would bid jobs, um, you know, basically
Speaker 1: usually to the state. They would give a price, they
Speaker 1: would get the job. And um, there was one job
Speaker 1: where the bidder forgot to include the bolts. So that
Speaker 1: was a million dollars. And anybody would have at that stage,
Speaker 1: you know, done everything they could to get out of
Speaker 1: the contract, because a million dollars is a million dollars.
Speaker 1: That was basically the net worth of the company right there.
Speaker 1: And I suggested to my dad, well, what are we
Speaker 1: gonna do. We gotta get out of this. We can't
Speaker 1: go through it. You can't can't spend a million dollars
Speaker 1: because of this mistake. And he said, my words, my word,
Speaker 1: that's a we're not going to get out of it,
Speaker 1: and we're going to find a way to make it work.
Speaker 1: And you know, it's easy for a parent to talk
Speaker 1: about the right thing to do, but the greatest opportunities
Speaker 1: to be able to teach by showing somebody that you're
Speaker 1: doing the right thing when it really hurts. Um. And
Speaker 1: he did that all the time. And and so that
Speaker 1: was that was what you made me think about how
Speaker 1: I should behave too and you know, I just couldn't.
Speaker 1: I couldn't break the law. Um, and did he get
Speaker 1: that contract? He got the contract. He sucked it up.
Speaker 1: I think they were able to cut back about half
Speaker 1: of that loss, but it was a huge hit on
Speaker 1: the on the company. Okay, so how do you decide
Speaker 1: to go to pen and what's your experience there? Um?
Speaker 1: I was a legacy. Uh, my father, my grandfather, my aunt,
Speaker 1: everybody went to PEN. I did early admit, I got
Speaker 1: in and so I decided to go. And uh I
Speaker 1: went originally thinking I was going to be a businessman
Speaker 1: like my dad. So I went to the Warden Business
Speaker 1: School and as quickly as I could, I finished my
Speaker 1: degree there and got into the I was interested in
Speaker 1: the history of economics. And then I left. After I
Speaker 1: finished PEN and with a degree from the college as
Speaker 1: well as the business school, I went to Cambridge to
Speaker 1: study philosophy. Well well, well, what was the inspiration? I mean,
Speaker 1: because you've had a long peripatetic career in education. You
Speaker 1: just said, okay, I want to I want to explore more.
Speaker 1: There was no issue of going into the business world
Speaker 1: or anything. Yeah, I mean when I finished, when I
Speaker 1: decided I didn't want to be in the business. Um.
Speaker 1: I then thought I'd go to law school. And then
Speaker 1: so I applied to law school and I got into
Speaker 1: law school, and then at the last minute, I thought,
Speaker 1: I just don't want to go to law school yet.
Speaker 1: So I was really obsessed with this philosophy course that
Speaker 1: I had taken in my last term at Penn, and I,
Speaker 1: you know, it was searching around for how I could
Speaker 1: then do something else related to philosophy. And I thought
Speaker 1: I'd go to England. And I looked at Oxford and
Speaker 1: it required a thirty page essay to apply. And I
Speaker 1: looked at Cambridge and it required a six word essay
Speaker 1: to apply. So obviously I applied to Cambridge and I
Speaker 1: got in. I went, and I spent three years studying
Speaker 1: philosophy at Cambridge. And did you end up with a degree. Yeah,
Speaker 1: I got what would become a master, as they have
Speaker 1: this weird way that what wasn't originally undergraduate degree matures
Speaker 1: into a master. So I have a Masters in philosophy,
Speaker 1: and I thought it would become a philosopher. I thought
Speaker 1: I would get a PhD. But then at the end
Speaker 1: I just felt it was too remote, too removed from
Speaker 1: the real world. So I came back to law school. Okay,
Speaker 1: But what did you learn from that experience in the
Speaker 1: UK other than socially? You know, I think that really
Speaker 1: important part of education, part of growing up, is to
Speaker 1: place yourself in radically different contexts. Now, England is not
Speaker 1: radically difficult, different from America, but in many ways it
Speaker 1: was m and so that makes you much more sensitive
Speaker 1: to what in the background is making the world the
Speaker 1: way it seems, and what is the part you're responsible for. So, um,
Speaker 1: I loved my time in England. Um, it was extraordinary
Speaker 1: luxury because I just got to read and write and
Speaker 1: uh um and I had already had a degree, so
Speaker 1: I felt like I knew something. Um uh. But um,
Speaker 1: but it's uh, it was you know, that was a time.
Speaker 1: It was a long time ago. It was eighty three
Speaker 1: to eighty six. That was a period when you know,
Speaker 1: Margaret Thatcher was the Prime minister. They were having these
Speaker 1: massive coal strikes. Um, there was strikes of the students
Speaker 1: because she was trying to cut back the welfare subsidy
Speaker 1: to students. Um. So there's a lot of social unrest
Speaker 1: in the country at the time. But I I felt
Speaker 1: it was you know, the period where I could go
Speaker 1: deepest and think deepest about stuff that was important. Okay,
Speaker 1: so you go to Yale. What's your experience at Yale
Speaker 1: Law School? Um? Well, first, I actually went to Chicago
Speaker 1: and I transferred to Yale to follow a girlfriend who
Speaker 1: had met in England who wanted to go to Yale.
Speaker 1: So I spent my first year of Chicago. That begs
Speaker 1: the question, what's the been Going to the uh University
Speaker 1: of Chicago and going to Yale for law school? There
Speaker 1: radically different places. Um, so Chicago is wasn't you know?
Speaker 1: I'm sure it still less. I don't have a clear
Speaker 1: sense of it today. But it's a great law school.
Speaker 1: Really super kids, really really super professors. I mean, um,
Speaker 1: you know Richard Posner, Michael McConnell, Cass Sunstein, Jeffrey Stone.
Speaker 1: I mean, there was incredible mix of people there. Diane
Speaker 1: would who eventually also became a judge with Richard Posner. Um,
Speaker 1: and so it was an intense, really intense legal education.
Speaker 1: Yale was more like a graduate school education. So, um,
Speaker 1: you know, they're super smart, smart kids. Um, but they
Speaker 1: didn't they almost didn't take the law seriously. They didn't
Speaker 1: want to get deep into that, you know, the messiness
Speaker 1: of the law. So I felt like, in some ways
Speaker 1: it was the perfect education because I got a really
Speaker 1: deep legal education in my first year from the Chicago
Speaker 1: and then I went to Yale and I could be
Speaker 1: more reflective and philosophical about it. And you know, given
Speaker 1: I decided I wanted to be a professor, that was
Speaker 1: a pretty good chance to um to be in that
Speaker 1: environment for that. Okay, what happened to the girl? We
Speaker 1: were very serious for many years, but in the end
Speaker 1: it didn't work. Okay, how did you decide you wanted
Speaker 1: to be a professor? You know, I realized I didn't
Speaker 1: have the discipline to work on problems I didn't find interesting.
Speaker 1: So I clerked at a law firm, crevass Wind and
Speaker 1: More my first summer and on my second summer, and
Speaker 1: and I saw all these people working on things that,
Speaker 1: you know, just seemed incredibly boring. And and what struck
Speaker 1: me was not that they were credibly boring, It was just,
Speaker 1: my god, how can you actually do that? Because I
Speaker 1: realized that if you told me I had to work
Speaker 1: on something and I didn't find interesting, I just physically
Speaker 1: I couldn't do it. So I at least. I needed
Speaker 1: a career where I was free to pick, uh, whatever
Speaker 1: I wanted to work on, based on what I wanted
Speaker 1: to work on. And you know, being I wasn't rich,
Speaker 1: So being an academic was the best way to do that.
Speaker 1: And that's the freedom that the job gives me. And
Speaker 1: I've depended on that deeply in the years since. And
Speaker 1: how did you end up at Stanford and how did
Speaker 1: you end it up at Harvard? And what are the
Speaker 1: differences between those two gigs and environments? So after I clerked,
Speaker 1: I clerked for Posner first at the Seventh Circuit and
Speaker 1: then Justice Scalia at the Supreme Court. I went back
Speaker 1: to Chicago and I taught at Chicago for six years,
Speaker 1: and then I came to Harvard to start the Center
Speaker 1: for Internet and Society that was here. And then in
Speaker 1: two thousand after I got married, Um, my wife is
Speaker 1: really keen that we see California, so we went to Stanford.
Speaker 1: I was there for nine, yeah, nine years, and then
Speaker 1: I came back to Harvard in two thousand nine. So
Speaker 1: they're very different environments. I mean, and Ford is like
Speaker 1: Yale in the sense of being small and very intimate,
Speaker 1: although of course at the time two thousand and two
Speaker 1: thousand nine, it was filled with people obsessed with Silicon Valley.
Speaker 1: At the heart of Silicon Valley, Harvard is huge, um,
Speaker 1: which I find wonderful because what that means is that
Speaker 1: there's always someone who is doing what you want to,
Speaker 1: you know, be interested in. So there's always students who
Speaker 1: are interested in the stuff you want to work on.
Speaker 1: There's always professors who are working in the area you
Speaker 1: want to work on. So it's, um, it's like a city.
Speaker 1: It's like New York City compared to a village. But
Speaker 1: you know, as long as you're comfortable in a city,
Speaker 1: it's it's ideal. Going back to Scalia, you know, Republicans
Speaker 1: idolized him, like the idolized Reagan, where those on the
Speaker 1: left certainly are not in favorite decisions since he's deceased.
Speaker 1: Was it hype? Was he really that intelligent? What's your take? Well,
Speaker 1: I think we have to recognize Justice Scalia as a
Speaker 1: justice from many years. So I guess he goes to
Speaker 1: the coordin eight six or eighty seven. Um. And obviously
Speaker 1: he dies in two thousand and sixteen, UM, so that's
Speaker 1: a long career. UM. And UM, I think he was
Speaker 1: a different justice at different stages of his career. So
Speaker 1: what inspired me the most about him? You know, when
Speaker 1: you apply, at least when I applied to be a clerk,
Speaker 1: you you apply to everybody, and if you don't, you
Speaker 1: don't get a job from anybody. So you're not allowed
Speaker 1: to pick and choose based on you know, the philosophy
Speaker 1: or the part of part partisan character of a particular judge. Um.
Speaker 1: But I applied and he interviewed me quickly, and he
Speaker 1: hired me quickly, um um. But what I admired about
Speaker 1: him is that, you know, he was someone who was
Speaker 1: who was deeply committed to um uh, to live out
Speaker 1: his philosophy of originalism and textualism. And there were a
Speaker 1: number of cases, number of times when there was a
Speaker 1: case where the conservative thing to do is not necessarily
Speaker 1: the originalist thing to do. And in every one of
Speaker 1: those cases I would say that he was immediately convinced
Speaker 1: of the originalist thing. But in every one of those cases,
Speaker 1: he was eventually brought around to doing the originalist thing,
Speaker 1: even though it was against his otherwise conservative politics. Um.
Speaker 1: And so I was impressed that at that stage of
Speaker 1: his career, at least the principle of the um that
Speaker 1: he was advancing, he allowed to constrain himself. UM. And
Speaker 1: part of you know that was he's just trying to
Speaker 1: work it out. Part of it was his belief that
Speaker 1: the principles were not UM didn't have a political valance
Speaker 1: to them. Part of it was he hired liberal clerks.
Speaker 1: I mean, I was a token liberal hired by Justice Scalia.
Speaker 1: The other clerks were very conservative, you know, they were UM.
Speaker 1: There was a deep skepticism about me early on, maybe
Speaker 1: all the way through UM. Later in his career he
Speaker 1: stopped hiring liberals. I asked him once why. He said, well,
Speaker 1: you know, I figured everything out. I don't need anybody
Speaker 1: to argue with anymore, so you know I don't. I
Speaker 1: didn't spend my career studying the work of Justice Scalia,
Speaker 1: so I don't feel like I'm an expert in the
Speaker 1: late Scalia or the Scalia circus two thousand ten. But
Speaker 1: the Scalia I knew was someone that UM I didn't
Speaker 1: agree with, and you know, vast majority of cases. But
Speaker 1: he's certainly someone I respected for for what he was doing.
Speaker 1: And how did you go from being a young Republican
Speaker 1: to the other end of the spectrum you know, in
Speaker 1: one sense, I don't think I've changed, because I'm still
Speaker 1: libertarian in the sense that I think society's objectives should
Speaker 1: be to give people the widest scope for liberty that
Speaker 1: they can. But what I what changed was recognizing how
Speaker 1: much society needed to contribute to that project. So creating
Speaker 1: the conditions within which liberty can exist becomes an extraordinarily
Speaker 1: part of what society has to do and what government
Speaker 1: has to do for that. So that means creating conditions,
Speaker 1: including conditions of equality, um and. So the more you
Speaker 1: focus on how do you create those conditions, what education,
Speaker 1: what protection for rights, what enablement of opportunities? Um. You know,
Speaker 1: it was obviously the Democratic Party that was more concerned
Speaker 1: about those issues than the Republicans, certainly the Republicans today
Speaker 1: um and and going forward. You know, I think one
Speaker 1: of the most interesting debates that came out of this
Speaker 1: recent Democratic primary was Andrew Yang's push for universal basic
Speaker 1: income um and. One way to understand the push for
Speaker 1: universal basic income is again related to this idea of
Speaker 1: enabling people to have the most meaningful liberty that they
Speaker 1: can have. There's a really great book called um Bullshit Jobs,
Speaker 1: which is a which is a wonderful account of um.
Speaker 1: How you know, up tot of us have jobs that
Speaker 1: we think of as bullshit jobs, by which he means
Speaker 1: is defined to mean a job which is doing no
Speaker 1: good for you or for anybody else in the world.
Speaker 1: You just start doing it, but you can't imagine how
Speaker 1: it's helping anybody. And it's not that other people think
Speaker 1: it's not helping anybody, you know, like I might think
Speaker 1: that UM parking ticket person is not helping anybody. It's
Speaker 1: that you yourself don't think that you're helping anybody, that
Speaker 1: you don't think the world is any better off because
Speaker 1: of that. I think about, you know, the luxury of
Speaker 1: having a life for every morning I get up and
Speaker 1: I think I'm going to work on exactly what I
Speaker 1: want to work on, compared to somebody next to me
Speaker 1: who was doing a job where they're thinking this is
Speaker 1: just contributing nothing to the world. That contrast, I think,
Speaker 1: I think is going to be increasingly important as we think,
Speaker 1: how do we build a world where more people have
Speaker 1: the freedom to have jobs where they feel like they're
Speaker 1: actually contributing something. They're doing something, they're doing something is
Speaker 1: meaningful at least to them. And what Andrew Yang was
Speaker 1: talking about was something that would create the conditions for
Speaker 1: making that possible. Like ub I would make it so,
Speaker 1: you know, you would have enough to live and then
Speaker 1: you could pick a job. Maybe you wouldn't be able
Speaker 1: to work forty hours a week on that job, you know,
Speaker 1: only couple hours a week, whether it's you know, being
Speaker 1: a h an artist or um, you know, building things
Speaker 1: in the forest, whatever. But the point is you could
Speaker 1: be living in a way that was meaningful to you.
Speaker 1: And I think that would be extraordinary if we set
Speaker 1: that as an objective for society. How will we make
Speaker 1: it so everybody wakes up every morning with the same
Speaker 1: feeling that I do, that this is what they're doing,
Speaker 1: what they want to be doing, and they have a
Speaker 1: chance to do it. And you know, in a certain sense,
Speaker 1: I think that's libertarian. That's about making sure society provides
Speaker 1: two people that opportunity for liberty, even though there's a
Speaker 1: hugely important role for the states, and creating the conditions
Speaker 1: for that liberty. And you say you have the ability
Speaker 1: to choose your projects at Harvard. What are you working
Speaker 1: on right now? Well, about a dozen years ago, I
Speaker 1: announced I was going to give up my work on
Speaker 1: Internet and copyrights to take up the project of um
Speaker 1: addressing what I was calling that institutional corruption. But basically
Speaker 1: this corruption of institutions like government meant um and UM.
Speaker 1: You know, my obsession was trying to find a way
Speaker 1: to get a democracy that would be responsive um to
Speaker 1: the public, as opposed to responsive to the special interests
Speaker 1: the funders of campaign. So that's the project I've been
Speaker 1: working on for the last twelve years and um uh
Speaker 1: and it's the project I'll be working on two we
Speaker 1: get it done at least for the next ten years.
Speaker 1: That's kind of I've set you know, seventy is a
Speaker 1: point where I want to step aside um. But uh so,
Speaker 1: what I'm working on right now are projects that are
Speaker 1: trying to elevate and make salient these reforms, democratic reforms.
Speaker 1: And so we've got a bunch of things related to
Speaker 1: this election to try to tee this issue up. Got
Speaker 1: a bunch of projects related to the electoral college, which
Speaker 1: we hope, you know, we'll follow this election and give
Speaker 1: a real opportunity for reform of the electoral college. And
Speaker 1: my real hope is that if Drew Biden is elected
Speaker 1: and Mitch McConnell, the dark Lord of the Senate, is
Speaker 1: returned to Kentucky. That there's a chance that Congress will
Speaker 1: pass fundamental democratic reform in the first hundred days. Joe
Speaker 1: Biden has promised they will do it. Nancy Pelosi has
Speaker 1: already passed that reform in the House last year, and
Speaker 1: she's committed to passing it if she has a majority
Speaker 1: in the House again. Chuck Schumer has promised to pass
Speaker 1: it in the Senate if he has a majority in
Speaker 1: the Senate. So we have a real chance for this
Speaker 1: reform to be enacted. And if it's enacted, I think
Speaker 1: it will be the most important thing that this administration
Speaker 1: could do. So I'm eager to continue to push to
Speaker 1: try to make sure that that happens. So, for those
Speaker 1: who are not following as closely as you are, what
Speaker 1: would be the elements of that push. Well, in um,
Speaker 1: Nancy Pelosi passed something called the called HR one, And
Speaker 1: what was significant about that title is that it signaled
Speaker 1: that this needed to be the first thing that would
Speaker 1: be done, and that recognized that nothing else was possible
Speaker 1: until you passed this reform. And this reform includes, most
Speaker 1: importantly changing away congressional campaigns are funded. You know, right now,
Speaker 1: members of Congress spend anywhere between thirty and seventy percent
Speaker 1: of their time raising money, spending their time on the
Speaker 1: phone calling donors, and their donors are not the average American.
Speaker 1: Their dontors sort of the tiniest fraction of the one spent.
Speaker 1: So they spend, you know, some people most of their
Speaker 1: time sucking up to this tiny, tiny fraction of the
Speaker 1: one percent to get the money they need to run
Speaker 1: their campaigns or to get their party back into power.
Speaker 1: That is a deeply corrupting experience. And so the most
Speaker 1: important thing I think HR one would do was to
Speaker 1: create a different way of funding campaigns UM that would
Speaker 1: liberate them from that project, and by liberating them, give
Speaker 1: them a chance to think about what their constituents want
Speaker 1: or what's in the interest of the country as opposed
Speaker 1: to what the funders of campaigns wants. That's number one.
Speaker 1: Number two, it would end partisan gerrymandering of congressional districts
Speaker 1: in the states. Number three, it would restore the Voting
Speaker 1: Rights Act so that states cannot exercise their power to
Speaker 1: suppress the votes. UM. It's of you know, it's targeted
Speaker 1: African Americans. But the main reason I think for this
Speaker 1: suppression is just partisan, Like Republicans want to make it
Speaker 1: harder for Democrats to vote, and where Democrats have that opportunity,
Speaker 1: they want to do the same thing too. But the
Speaker 1: point is it's a corrupting inequality on the basis of
Speaker 1: partisan um power that we've got to end. And h
Speaker 1: R one would go a long way to that. And
Speaker 1: then it did a bunch of other things related to
Speaker 1: ethics and government automatic voter registration things just to make
Speaker 1: the democratic process work better. And um, And I think
Speaker 1: that if we passed that bill, um maybe a little
Speaker 1: bit better than that bill, more aggressive in the changing
Speaker 1: the way campaigns are funded. UM, then there would be
Speaker 1: an extraordinary opportunity to get a democracy that cared more
Speaker 1: about what people want than it cared about what the
Speaker 1: lobbyists or the funders of campaigns want. And sketching in
Speaker 1: the painting a little bit more, how would campaigns be funded?
Speaker 1: So HR one has two ideas. UM. It's real emphasis
Speaker 1: is on a matching fund system. So this is the
Speaker 1: way New York City funds most of its campaigns. So
Speaker 1: matching fund system says if you give a small amount
Speaker 1: that gets matched up to UM six to one UM
Speaker 1: by the government, so that small contributions are much more valuable.
Speaker 1: And the theory is candidates would then be looking for
Speaker 1: more small contributions, which means they would be more responsive
Speaker 1: to people who are giving small contributions than to the
Speaker 1: small number of people who give large contributions. Now, the
Speaker 1: other idea, which is the part that I think is
Speaker 1: really exciting and has enormous potential. Something that city of
Speaker 1: Seattle has adopted is something called vouchers. So give every
Speaker 1: give every voter a voucher. Think of it as a
Speaker 1: packet of coupons that they can use to give to
Speaker 1: candidates to help them fund their campaigns. So, if you're
Speaker 1: a candida running for office, which you know is every
Speaker 1: single voter in your district has a hundred dollars in
Speaker 1: their pocket that they can give you to help fund
Speaker 1: your campaigns, and so you'll be raising money from ordinary people,
Speaker 1: not from the tiny fraction of the one percent to
Speaker 1: fund campaigns now. And if you do that, raise money
Speaker 1: from those people, um, then you're responsive to those people.
Speaker 1: And I think that has the enormous potential to change
Speaker 1: the sensibilities of Congress to make them more focused on
Speaker 1: what ordinary people care about as opposed to these big funders.
Speaker 1: And and I think that would be the absolutely most
Speaker 1: important change that could that could be done. And so
Speaker 1: um um, Now, in this last presidential election, um, you know,
Speaker 1: we had there was an enormous focus on democracy reform.
Speaker 1: Every single major candidate, including by the end um Joe
Speaker 1: Biden on the Democratic side and uh Bill Weld on
Speaker 1: the Republican side, promised within the first hundred days to
Speaker 1: pass fundamental democratic reform. And and in the Democratic side,
Speaker 1: people like Andrew Yang and Kirston gilla Brand and uh
Speaker 1: Um Bernie Sanders endorsed the idea of vouchers. Kirston jilla
Speaker 1: Brand wanted to give people up to six hundred dollars
Speaker 1: and vouchers two hundred dollars for every federal race, so
Speaker 1: two underrellars for Congress, two underrellars for the Senate, to
Speaker 1: andolls for the president. Andrew Young said a hundred dollars.
Speaker 1: Bernie was never clear about how much money he was
Speaker 1: talking about. But they all recognized that if you could
Speaker 1: make it so that ordinary people were funding campaigns, you
Speaker 1: would have a Congress more focused on what ordinary people
Speaker 1: cared about, not on the you know, the billionaires than
Speaker 1: millionaires who are funding through their packs or their large contributions.
Speaker 1: Now this all sounds great on the surface, but as
Speaker 1: someone who has seen multiple election cycles, I'm reminded of
Speaker 1: the famous George Carlin routine, who says, you can vote
Speaker 1: if it makes you feel good, But the owners of
Speaker 1: the country are not going to give up power. They
Speaker 1: are really going to control. And I look at UH.
Speaker 1: You know, Bernie Sanders, who certainly spoke to the public
Speaker 1: and eased all his money from individual contributions, as opposed
Speaker 1: to Biden, as opposed to Commona who ultimately couldn't raise
Speaker 1: that much money. It's hard to have confidence. The theory
Speaker 1: sounds good, but especially UH, taxes have been denigrated to
Speaker 1: the point where everyone thinks taxes are bad, even people
Speaker 1: on the left. It's hard to believe as a result
Speaker 1: of income inequality opportunities in education. You're also talking earlier
Speaker 1: about long form discussion of problems and issues. I certainly
Speaker 1: grew up in the sixties when public schools had enough
Speaker 1: money to educate people how to think, they were not
Speaker 1: teaching to the test. And is the system inherently broken
Speaker 1: or will these brand aids fix it, or is there
Speaker 1: an elite The funny thing, of course, the elite to
Speaker 1: a great degrees on the left, people who are worked
Speaker 1: very hard and educated themselves to gain power, who have
Speaker 1: contempt for those who work with their hands or in
Speaker 1: service positions. Are these really solvable choose under the present system,
Speaker 1: they are solvable. And I think the kind of changes
Speaker 1: that I was just describing, for example, if you gave
Speaker 1: if you followed Kirston jeweler Brand's proposal and you gave
Speaker 1: everybody six two hundred dollars for federal race, that's not
Speaker 1: a band aid. That would be a fundamental change and
Speaker 1: how Washington works now. I think it's a really important
Speaker 1: question whether the Democrats will carry through. You know, many skeptical,
Speaker 1: cynical people said that Nancy Pelosi was able to pass
Speaker 1: h R one with every single Democrat voting for it
Speaker 1: because they all knew Mitch mcconnough would kill it in
Speaker 1: the Senate, so it never was going to get passed.
Speaker 1: And the same people say that if the Democrats take
Speaker 1: control of the Senate and they have control of the
Speaker 1: House and they have the presidency, don't expect reform to
Speaker 1: pass because then all the money in the world will
Speaker 1: be against reform passing and they will stop the Democrats
Speaker 1: from passing it. And I think that's a fair challenge,
Speaker 1: and it's up to us to make them do it.
Speaker 1: It's up to us to say, you know, we have
Speaker 1: finally come to the point where the vast majority of
Speaker 1: Americans realize if we don't fix this corrupted, broken political system,
Speaker 1: nothing happens. Nothing happens. You know, you mentioned at the
Speaker 1: opening that I tried to run for president and UH
Speaker 1: my campaign in UH was expressly focused, exclusively focused on
Speaker 1: passing fundamental reform UM, and it was almost impossible to
Speaker 1: be able to run that campaign. Um, you know, this
Speaker 1: complicated game that they played to change the rules to
Speaker 1: keep me off the debate stage, partly because the issue
Speaker 1: was not salient four years ago. But now every single
Speaker 1: candidate endorsed this idea of fundamental reform in the first
Speaker 1: hundred days of the administration. So I think the Democrats
Speaker 1: UM have said they will do it. I think there's
Speaker 1: a chance we get enough Democrats in Congress to actually
Speaker 1: do it, and then we've got to hold their feet
Speaker 1: to the fire. And if they don't do it, then
Speaker 1: God help them, there will be a revolution, and I
Speaker 1: will be in the barracks in the streets doing everything
Speaker 1: I can to drive it because we can't get anything
Speaker 1: done in this country until we fix this problem. There's
Speaker 1: no climate change legislation that will pass until we fix
Speaker 1: this corrupted, broken system. There's no healthcare reform that doesn't
Speaker 1: benefit pharmaceutical companies or the insurance companies until we fix
Speaker 1: this corrupted, broken political system. Finally, people get that. And
Speaker 1: now the question is whether the Democrats will carry through
Speaker 1: if in fact they're able to stop this president from
Speaker 1: stealing the next election. Let's just assume election day happens
Speaker 1: and the ultimate result is up for grabs, the obvious
Speaker 1: example being the year two thousand. Many people believe in
Speaker 1: the year two thousands, despite having David Boy's on the
Speaker 1: Gore team, that they were outmaneuvered by the Republican attorneys.
Speaker 1: If it's a jump ball, what should the Democrats do
Speaker 1: legally to ensure that they have the best chance of
Speaker 1: things coming out their way. There's so many issues. Who
Speaker 1: knows what the issues might ultimately be, but certainly there's
Speaker 1: issues of postmarks on absentee ballots, whether the ballots are
Speaker 1: filled out correctly. Uh then we certainly have people in
Speaker 1: charge of elections and states making unilateral decisions. And one
Speaker 1: can argue in previous situations the Democrats are the opposing team.
Speaker 1: The Democrats have been on their heels in this situation. Well,
Speaker 1: it's absolutely true that this is going to be an
Speaker 1: incredibly complex election. I'm teaching a seminar in the fall
Speaker 1: called war gaming, which tries to map out all the
Speaker 1: things that can go wrong, all the places where the
Speaker 1: system can get can be played. So, you know, so
Speaker 1: if I were to advise the Democrats on what's the
Speaker 1: one thing they need to be doing in twenty twenty
Speaker 1: that they didn't do in two thousand, they need to
Speaker 1: assume the other side is not going to play fair.
Speaker 1: And I'm not saying that's going to happen, but I
Speaker 1: think one striking thing about two thousand was that so
Speaker 1: many times the Democrats were just astonished with what the Democrats,
Speaker 1: what the Republicans did. I mean, even the core argument
Speaker 1: that actually in the end one the argument about the
Speaker 1: equal Protection clause um controlling or regulating how votes would
Speaker 1: be recounted. When that argument was made, people on the
Speaker 1: less of this is just crazy talk. There's no way
Speaker 1: such an argument could work. Um. But of course it
Speaker 1: did work, and the Republicans were willing to do almost anything, um,
Speaker 1: including remember the kind of Brooks brother riots um in
Speaker 1: Florida where you had these people who had been literally
Speaker 1: bust in, who were pretending to be Florida voters pounding
Speaker 1: on the doors demanding that they're hanging Chad Ballance be
Speaker 1: not countered or whatever depending on the district, um. You know.
Speaker 1: And I think the Democrats were caught off guard because
Speaker 1: they just couldn't imagine that that kind of behavior would
Speaker 1: be engaged in. Well, I think now people are being
Speaker 1: woken up to recognize that this president will not stop
Speaker 1: at anything. Literally, he's got everything to lose, you know,
Speaker 1: not just the election, but given what we know about
Speaker 1: the you know, criminal charges that are against his organization
Speaker 1: and his company, given what we know about the fiscal library,
Speaker 1: financial liability he faces to like Deutsche Bang, incredible amount
Speaker 1: of money outstanding. Um. You can just see that he
Speaker 1: imagines that if he doesn't win, it's not just the election,
Speaker 1: it's also his whole empire collapses. And when you've got
Speaker 1: somebody against the wall and they know that everything disappears,
Speaker 1: that they don't win, They're going to do whatever they can.
Speaker 1: And I'm genuinely terrified about whether our legal system is
Speaker 1: kabowle of adjudicating when one side is so is operating
Speaker 1: in such bad faith. Um, I just don't know, you know,
Speaker 1: we haven't seen good evidence that the court system will
Speaker 1: stand up to this so far, and and what's to
Speaker 1: say that they will stand up, you know, against it
Speaker 1: in the context of that election, And and as I
Speaker 1: said at the very beginning, if that happens, I don't
Speaker 1: know what happens. You know, George Floyd brought out, Um,
Speaker 1: I think it was something like seven percent of America,
Speaker 1: it might have been seventeen at some number around there
Speaker 1: who turned out to a protest because of because of
Speaker 1: that event. You know, take that multiplied by three or four,
Speaker 1: and you have a country destabilizing event. I don't know
Speaker 1: what the country is like if people, Um, if there
Speaker 1: is an election which is stolen and people react in
Speaker 1: the way that I expect they will react given the
Speaker 1: fury that this man has triggered across the country. Now,
Speaker 1: you obviously have a singular high profile yourself, but to
Speaker 1: what degree are you integrated with the d n C
Speaker 1: or Kamala or Joe. Is that something where you have
Speaker 1: interaction with them? Is the lines open or you on
Speaker 1: your own separate island. Well, I give advice on UM
Speaker 1: reform issues to anybody who wants it, and I've given
Speaker 1: advice to a wide range of people, including people involved
Speaker 1: in these campaigns, so I will continue to do that.
Speaker 1: I'm not inside the campaign in the sense of running anything,
Speaker 1: and I don't expect to be UM although you know
Speaker 1: my view is Joe Biden needs to become the president
Speaker 1: and I will do whatever it takes to make every
Speaker 1: whatever it takes that my father would approve of, to
Speaker 1: make sure that that happens. Larry, this has been unbelievable.
Speaker 1: We could go on for hours, but we're gonna wear
Speaker 1: our ears out and those of the audience. But this
Speaker 1: has been incredibly edifying, especially to those people who don't
Speaker 1: follow the law on a week by week basis or
Speaker 1: even a year by your business. Thanks so much for
Speaker 1: doing this. Thank you for having me. Until next time.
Speaker 1: This is Bob Left, says m