0:00

>> Troy Sinek: All right, I gotta make sure that I stick the landing on this one.

0:02

I got Tom Church breathing down my neck. [MUSIC]

0:14

Welcome back to the Law Talk podcast from the Hoover Institution, coming to you,

0:19

as we always do, from the faculty lounge at the Epstein NYU School of Law,

0:24

fully accredited and also proud to announce, no longer a Superfund site.

0:29

I'm your host, Troy Sinek, former White House speechwriter, co founder of

0:33

Chitin Key Media, and lowest scoring player in Harlem Globetrotters history.

0:38

And I am joined, as always, by the Hansel and

0:40

Gretel of the conservative legal movement.

0:43

They are, Richard Epstein, the Peter and Kirsten Bedford,

0:47

senior fellow at the Hoover Institution, the Lawrence A Tisch professor of

0:52

law at NYU and senior lecturer at the University of Chicago, and John Yoo.

0:57

Visiting fellow at the Hoover Institution, the Emmanuel S Heller,

1:01

professor of law at the University of California, Berkeley, and

1:04

former deputy assistant attorney general in the Bush administration.

1:08

Fellas, good to be back with you.

1:10

I wanna thank Tom Church for stepping into guest host the emergency edition of

1:15

the show that you guys did about the Trump indictment.

1:18

I wasn't able to make that because I was recovering from a cut rate Mexican

1:22

cosmetic surgery. It's gone pretty well.

1:25

I'm still unable to perceive the color green, but otherwise it went pretty well.

1:28

But Tom, who has now, lets be honest, basically become a vulture circling

1:33

the carcass of all my podcasts, waiting to swoop in.

1:36

He did a terrific job, and you guys did a terrific job.

1:38

It's actually fun for me to listen to it for once.

1:42

But I should note, there has been another piece of big news while I've been away,

1:48

which is that there has been a major birthday in the faculty lounge.

1:53

Professor Epstein, do you have anything you'd like to disclose?

1:57

>> Richard Epstein: Well, I don't know whether I'd like to disclose it.

2:00

There is a biblical session about, you know, three score and ten is normal.

2:03

And if by strength it be is four score.

2:06

I am now 18 years old, back from cancer surgery,

2:10

talking away a mile a minute, I hope.

2:14

I'm grateful to be here, grateful to have so many friends, had a wonderful

2:18

birthday celebration at NYU, and my family celebration up in Westchester.

2:24

And yes, I mean, I am doubly happy.

2:26

A birthday is nice, but when you've had some of these scary medical adventures and

2:31

you've managed to come out of them, you feel a special debt of gratitude.

2:35

I will only make one observation, and this is a more technical one,

2:39

what do we care about medical innovation people often ask.

2:43

And, well, my particular tumor was located at a very difficult place near the kidney,

2:48

and there was a danger you lose the whole thing.

2:51

But there are techniques developed in the last several years which essentially allow

2:56

you to freeze the organ and to remove the tumor without taking the kidney.

3:00

For somebody who's my age, losing a kidney is an open invitation to dialysis.

3:05

And so when people always ask you, does medical innovation matter?

3:08

It turns out every five years, there's something that wasn't there the year before.

3:12

And there are gonna be lots of people who essentially are going to be fortunate they

3:16

have their this is this year rather than ten years ago.

3:19

This is just a general preview for people to think that when you start talking about

3:24

medical innovation, it's just sort of a kind of errant app claptrap and so forth.

3:29

It's a very real and powerful situation.

3:32

And whatever we have to do in terms of medicine, whatever we have to do in terms

3:36

of intellectual property, whatever we have to do in terms of regulation, we should

3:40

remember that the improvements that can take place are life and death matters.

3:44

And so I'm extremely grateful for everything that the medical health care

3:47

system could done, because I'm quite happy to talk about the many weaknesses of

3:51

the medical care system in the insurance system.

3:54

I'm not prepared to do my own surgery, okay?

3:57

And that's what I would say. >> John Yoo: Did you just say they froze your kidney?

4:01

>> Richard Epstein: Yeah. >> John Yoo: They froze your kidney, and then they took the cancer off.

4:04

And then did they put it in a microwave and defrosted it?

4:08

>> Richard Epstein: Well, they do find ways more subtle than that, John,

4:11

to do it, yes [LAUGH]. I mean, look, you need a desperado doctor who's right up on this thing, and

4:16

you have to have a lot of confidence that when you go in there,

4:18

that using the most advanced techniques, you can master them.

4:22

And it all worked out swimmingly well, for which you have an enormous aesthetic gratitude.

4:26

So anybody who goes to Weill Cornell Hospital, where I went,

4:29

should say, it's nice to know that you have that extra measure of protection.

4:34

And I think it's really important to understand temperature changes like this

4:38

are always critical in many cases.

4:40

With open heart surgery, you have to do the same kind of thing, and

4:43

what you need to do is to expand the network.

4:46

Just one sort of general observation about this is the rate of surgical innovation

4:50

has generally been far higher than the rate of pharmaceutical innovation.

4:54

And there's one reason, which is the FDA does not regulate surgery.

5:00

And so essentially what happens is a decentralized knowledge.

5:04

Somebody starts it, somebody else picks it up.

5:07

Doctors are inveterate gossips on this stuff,

5:09

which means that the information moves very rapidly.

5:12

There's central bulletin boards which allow the information to be transferred in

5:16

an ordinary situation. So that the entire system runs on private innovation and comprehensive diffusion

5:22

of information, which is the way it is when you go to the FDA,

5:26

there's this concentrated control which can slow everything down.

5:30

It's one of the issues which is actually related. It's one of the things that we might be talking about today, the abortion pill.

5:36

But it's a very, very interesting system,

5:41

and it's extremely instructive.

5:44

>> Troy Sinek: Were you like Reagan right before you went under the knife?

5:47

Did you go, are you all libertarians here?

5:50

>> Richard Epstein: No, let me tell you what goes on in a hospital.

5:54

>> Troy Sinek: You didn't ask me. Well, you didn't ask them what- [CROSSTALK]

5:57

>> Richard Epstein: Before you let them cut.

6:00

John, I hope this is jocular.

6:02

The last thing you wanna do when you go under the knife

6:05

is to talk about the political affiliations of your judges and so forth.

6:10

The one thing that was really clear about this hospital and

6:13

every other hospital I've been to in recent years is that the single

6:17

most important mantra of diversity has the following absolutely vital situation.

6:22

The people who form these medical teams are drawn from all over the world, and

6:26

they have all different kinds of backgrounds.

6:28

There was one of the orderlies, you know, who took me down,

6:31

who was a French soccer player, and things like that.

6:34

And the key thing is having integrated responsibility,

6:36

which everybody understands how everybody else worked.

6:39

And that- >> Troy Sinek: Your orderly was

6:42

Killian Mbappe. >> Richard Epstein: Well, no, I think he's a bit too high.

6:46

It's a would be or has been of that sort.

6:48

But it's amazing where all these people start to come from and

6:52

you have to meld them into a single team.

6:55

And you've got these cultural differences, these racial differences,

6:58

these national differences, these background sentiment differences.

7:02

And the great achievement of a hospital is to figure out how you make them work as

7:06

a single, organized team with your surgeon as being the captain of the ship.

7:10

But as I got every other ship, it's not the only person who doesn't matter is not just a captain.

7:15

It's everybody else who's working under him.

7:17

And that's the difference between life and death in these settings.

7:20

So, I mean, what it does is it gives you a real awareness of just how fragile life

7:25

turns out to be and a great deal of relief when you see the work is done

7:29

extremely well and you live happily to tell about it.

7:32

>> Troy Sinek: The dynamic on this show is so impressive to me cuz, Richard,

7:36

you are the only person who I could congratulate on a milestone birthday,

7:40

who would then turn it into a homily on medical innovation.

7:44

Had this been a milestone birthday for John, I feel relatively confident that it

7:48

would have turned into an orgy of self-congratulation.

7:52

That would have been physical opposite of what you had just [CROSSTALK].

7:55

>> Richard Epstein: John we talk about which delicatessen he wanted to go.

7:58

>> John Yoo: Yeah, of course. >> Richard Epstein: He's absolutely right.

8:02

But when you've been out of commission for a couple of months, for

8:05

the first time in a professional career that goes back to 1968,

8:08

you should give forgive at least a minute or two of introspection.

8:12

The really good news is I went out to lunch today and so forth and

8:15

somebody said, you're still talking a mile a minute.

8:17

I can't tell you how sweet those words were.

8:23

>> John Yoo: You had cancer of the mouth. I mean, come on, this is kidney, not mouth.

8:27

The Biden administration would be better off if you had cancer the mouth.

8:32

>> Richard Epstein: He's six months older than me.

8:35

God help us. >> Troy Sinek: All right, fellas, >> Richard Epstein: no comment.

8:40

>> Troy Sinek: Let's start with the biggest legal story of this week,

8:44

which is Fox News coming to a last minute settlement with Dominion,

8:48

the voting technology company that was suing them for

8:52

$1.6 billion in a libel case stemming from the claims, of course,

8:57

that Fox put on air in the aftermath of the 2020 election,

9:01

suggesting that Dominion may have played a role in voter fraud.

9:05

Fox agrees to settle the case and pay out $787.5 million.

9:13

This is being reported as the largest publicly disclosed

9:17

settlement in a defamation case in american history.

9:22

Richard, one of the things that legal analysts were continually cautioning us

9:28

about in the run up to this case was that the legal standard for libel in the US

9:33

is so exacting that even if it seemed to a layperson like Fox was culpable here,

9:39

they were still going to have perhaps a reasonable chance in court.

9:44

This settlement would seem to suggest that that did not

9:47

end up being Fox's conclusion. But how do you read this?

9:51

How likely do you think Fox would have been to come out on the losing end

9:56

had this gone to trial? >> Richard Epstein: Well, there are two issues you'd have to worry about.

10:00

The first issue is liability and the second issue is damages.

10:04

I think that actually Fox, if they had played this case very carefully,

10:08

could have reduced the level of damages, if only because Dominion becomes something

10:13

of a national hero when it turns out it brings the suit against Fox.

10:17

And so in order to get the damage level up to the level which it actually was,

10:22

you'd probably have to show some lost business to the company,

10:26

its inability to renew existing situations or get new contracts and so forth.

10:31

Nobody wanted to talk about the financials.

10:33

I think there would have been real vulnerability on Dominion for

10:36

that side of the issue. On the liability issues,

10:39

the actual malice standard is in fact the double edged sword.

10:44

What this standard says is they're not talking about malice in the sense of

10:47

malevolence. They're talking about malice as essentially where you know that what you

10:52

say is false or you're in reckless disregard of the truth.

10:56

And it turns out most people can make that.

10:58

But the moment you can make of it, think of it as this way.

11:02

Now, you've not only shown that the words hurt, this is not just a strict liability

11:06

case, but you show that these guys really did something terrible.

11:09

So if you meet the hurdle, in fact, you're going to get a larger amount of damages proving actual malice than you

11:15

would get if you weren't allowed to introduce those elements into the case.

11:19

And there's just too much evidence there for Fox to be able to shut it all down.

11:24

Whenever you have internal communications which say that we say publicly, we know to

11:28

be false, and we're doing it because we think our viewers want to hear it.

11:32

That's an open invitation to say it's not only reckless disregard of the truth, but

11:37

outright falsity. Now, they could try to explain it away, and one of the ways you try to explain it

11:42

away is they were just reporting on the views of others,

11:44

not stating views themselves. That turns out not to be an iron wall because otherwise the circumvention

11:50

of the libel rules would be too easy.

11:52

You'd find some joker out there who says something,

11:55

you believe that what he says is true, and then you put it on the air, said,

11:58

Fox is not taking a position, he's just putting it out there for you to see.

12:01

But of course, if it comes on this particular network, it's going to be at

12:06

least possible for a jury to say that Fox and its particular reporter or

12:10

spokesman were one individual and you could impute the information back up.

12:15

So I don't think that particular defense would work in this particular kind of

12:18

case, especially given the background stuff.

12:21

The mistake that Fox made was waiting so long.

12:24

What they should have done is settle this suit a good long time ago.

12:28

Because one of the things that happens in a defamation suit,

12:31

if bad stuff is coming out about you, there's nothing you can do to sue.

12:36

It's what they call record libel proceedings.

12:38

That is, the rest of the press is entitled to say that Fox was sued for

12:42

the following sins and then list all of them.

12:44

And there's nothing you can do to attack that if it is, quote unquote, a fair and

12:48

accurate summary of what happened. It didn't seem in this case that that condition would not be satisfied.

12:54

So it turns out everybody else can make a field day of it.

12:57

So the advice that you give to them is to settle much earlier than they did.

13:01

They certainly were right to settle now. Now, why did Dominion start to settle?

13:06

I told you, I think the bigger weakness was not on liability.

13:08

I think it was probably on the damaged side of this thinking.

13:12

It's also, there's a funny thing that happens in liable cases.

13:16

You're trying to throw dirt on the other guy. The other guy is trying to throw dirt on you.

13:20

So even if you win one of these liable cases, there's always the probability that

13:25

people will think less of dominion in ways that they would rather not have,

13:30

want to be on the stage for an undue period of time anyhow.

13:33

So this is a case in which it follows a maxim that was told to me in 1968 by

13:38

a great lawyer named Hermione Brown when I first went out to USC.

13:42

What she said to me is, you could always tell a good business deal when everybody's happy, and

13:48

you could always tell a good settlement when everybody's a little bit unhappy.

13:52

And so by that standard, this was a good settlement.

13:55

It turns out, I think that the parties each did better by settling than by continuing on.

14:00

The real losers are the rest of the press, which doesn't have the opportunity to

14:04

cover this thing in what would be a field day of allegation and

14:08

counter allegation, which neither of these two parties wanted.

14:11

Congratulations for them to settle.

14:14

Next time, Fox will be a little bit more careful in the way in which it does this

14:18

sort of thing. But I think in the end, this is a story which has come,

14:22

given the terrible things that happened before, to a relatively happy closure.

14:27

>> Troy Sinek: John, Fox is not totally out of the woods here.

14:30

Smartmatic, which is another one of the voting technology firms that was singled

14:34

out in these post election allegations.

14:37

They still have a suit pending against Fox. They're asking for even more than Dominion was, that's a $2.7 billion suit.

14:43

And one of the things thats interesting here is that youve got the dominant

14:49

conservative media company in the country as the defendant in

14:54

these cases in a period where it is conservatives in particular,

14:59

who seem the most interested in increasing the legal exposure of media companies.

15:05

You had Donald Trump at multiple points in his presidency saying that America's

15:10

libel laws are too restrictive, that it should be easier to sue media companies.

15:15

Just in the past few months, Ron DeSantis supported a bill in Florida, which I think

15:20

we talked about on the show, which would have made libel lawsuits easier.

15:24

And then on top of that, you have the growing slightly different, but

15:27

the conservative sensibility that more needs to be done to rein in the social

15:31

media companies. Zooming out from all this a little,

15:34

what do you make of the sort of general legal landscape around defamation?

15:40

Is there merit to the criticism that the world of New York Times v Sullivan,

15:44

which is the Supreme Court precedent,

15:46

we're living with when it comes to defamation is too restrictive,

15:50

that we need to be able to go further in holding media companies accountable?

15:54

>> John Yoo: This is one of the reasons I think, that Fox shouldn't have settled, or

15:58

if they did, they settled for too much.

16:00

Or they should have waited to see what happened in the courtroom trial because

16:05

the standard to prove that they defamed, Dominion, and then the follow on lawsuits,

16:10

Smartmatic, individuals, I guess individuals could well sue, too.

16:15

Could sue Fox. They're all going to point back at the Dominion settlement and say, pay up now.

16:20

But that standard is really high.

16:23

It's the absence of malice standard.

16:26

And even if they lost a trial, I could easily see the courts of appeals or

16:31

the Supreme Court reversing a verdict based on that standard.

16:36

For example, this judge held, as Richard observed, that Fox was not

16:41

allowed to say that its hosts were reporting what the White House and

16:46

the president were saying, that it was their own statements of fact.

16:51

I don't know, I mean, I would like to see that litigated.

16:54

I don't know if a judge can just sort of make a finding about that before

16:57

there's a trial. Anyway, the thing that would have happened, I think,

17:02

if it got to the Supreme Court was you would have had all these liberal media

17:06

companies which love to dump on Fox and love to dump on Donald Trump.

17:11

Their self interest should have been to support Fox.

17:14

If you're CB's or CNN or the New York Times, you may need

17:18

the absence of malice standard more than Fox does in the long run.

17:22

And I would have loved to have seen what those media companies would have done.

17:26

They normally should have come in on the side of Fox.

17:29

And so that's why I think maybe you wouldn't have

17:32

seen the Supreme Court change the absence of malice standard.

17:36

You would have seen all the usual institutions that oppose conservatives,

17:42

like universities, like the media, and saw the cultural institutions,

17:47

they all should have come in to support Fox in the end.

17:51

It would have also been ironic to see Fox saying, we would like to

17:55

keep this great old liberal precedent of New York Times versus Sullivan.

17:59

You're right, Troy. There are voices in the conservative movement have called for

18:04

reexamination of New York Times versus Sullivan.

18:07

Justice Thomas wrote a concurrence a few years ago calling on

18:11

the court to re examine Sullivan.

18:14

I think he's right that the standard doesn't come out of, excuse me,

18:17

the First Amendment to the Constitution.

18:19

It's something the Supreme Court in Sullivan sort of created in the 1960s.

18:26

But I think it's actually led to the vibrant, innovative press that we have

18:32

today, which I actually think is a better thing than the older days.

18:37

What we would have, I think, without that standard, which would be smaller number of

18:42

newspapers, smaller number of cable news channels, smaller number Internet sites,

18:47

much less vibrant discussion and debate and wild things said.

18:51

Even though Richard and I have both been on the receiving end of crazy,

18:55

wild things, I still think that's better for our democracy and

18:59

more consistent with the First Amendment.

19:01

>> Richard Epstein: I actually thought New York Times against Sullivan was deeply

19:05

flawed. And I wrote about this, I guess it's close to 30 years ago.

19:10

What would I have done if I had been the rest of the press?

19:13

What I would have done is to say the standard is, in fact, correct.

19:17

It is very exacting. And we want you to know that the threshold was met in the Fox case.

19:23

Virtually every other case that we've had,

19:25

we cannot find the distinctive features in which people are saying one thing to

19:29

each other off stage while they're saying another thing on the screen.

19:33

That what you should understand is that this does not

19:36

upset the vast number of precedents in which the press has won.

19:40

And the reason I'm not entirely happy about this is that there are two things

19:44

that happen. One is if you get weak, weaker protection for

19:48

reputation, it turns out the willingness of people to enter into the public

19:52

sphere knowing that they could be freely defamed is reduced.

19:57

And so there was at the time of New York Times and today still, the question,

20:00

is this going to keep the ablest people out of politics on the simple ground,

20:04

I don't need this. I may take a low pay, but

20:07

I can't take the fact that people are going to constantly pummel me.

20:10

I know if there's a defamation law out there, even if I don't use it,

20:14

it's likely to shift the discourse to some extent.

20:17

And the other thing is, if you start looking at the credibility of the press precisely because everybody

20:22

knows that it's not responsible when it commits outrageous forms of libel.

20:26

The trust in the press is now down about the same level it is for

20:30

the trust of Congress, which is under 20%.

20:33

That, in part, is a function of the fact that they could trash everybody else's reputation.

20:38

Indeed, one of the ironies is there was a piece of legislation which I thought was

20:43

quite sensible. And what it said was, so long as the defendant admits that its statements

20:49

were false, the plaintiff will not be able to recover damages.

20:53

This will help the plaintiff restore the reputation by having this acknowledgement.

20:58

Do you know that the argument against this by the press, which fought fiercely,

21:02

it was as follows, they say, the problem is, if we admit that we were false, it's

21:07

going to hurt our business reputation, which is a very nice way of saying,

21:11

in fact, reputation matters to them as much as everybody else.

21:14

In fact, the harms associated with disruptions are very, very great.

21:19

In this particular case, I said,

21:21

I think that Dominion was quite weak on the ability to get those damages.

21:25

I think all of these guys are, I don't know anything about the particulars of the other cases,

21:30

but generally speaking, in a case like this, there are two forms of damages.

21:35

One is said, well, you're a big guy and you said bad things about somebody else,

21:38

we're going to basically assume that the natural and

21:41

probable consequences of what you said is negative.

21:44

We're going to award you general damages without,

21:46

without proof of particular kinds of loss.

21:49

But the strong defense to that is the one that I mentioned earlier,

21:52

namely that you look at this company, you say, is this business gone up or

21:56

down since this thing has happened?

21:58

And if it turns out they haven't lost any customers,

22:01

they continue to get new kinds of business.

22:03

If it turns out they could appear at trade shows and show their face and

22:06

all the rest of it, the damage element of the case becomes much weaker.

22:10

There's always punitive damages, which you could probably sustain in this case.

22:14

The Supreme Court rightly has said,

22:16

we make sure that punitives are relatively small, multiple of actual damages.

22:21

So if you knock down the actual damages,

22:23

you knock down the punitive damages with it.

22:26

I think, in effect, this was a pretty good development.

22:28

I disagree with John, and I think what happens is the fact that

22:31

you settle somewhere in the middle means that both the people

22:35

who make these terrible defamation statements are going to be cautious.

22:39

And I think people who claim to be defamed are going to be a little bit more careful

22:44

when they realize they may have to prove actual losses,

22:47

which could be difficult to do.

22:49

>> Troy Sinek: The other big legal controversy broiling the right last couple

22:54

of weeks has been these series of pieces that ProPublica,

22:57

the investigative journalism outlet, has been doing on the relationship between

23:03

Clarence Thomas and Harlan Crow, the big conservative donor out in Texas.

23:08

The thrust of which has been, although if you read the pieces,

23:12

this is accomplished largely through innuendo, that there is an improper and

23:17

unethical relationship between the two because Justice Thomas and

23:21

his wife have taken part in a number of luxurious trips with Harlan Crow

23:26

over the years, fully funded by Crow.

23:29

then there was also a subsequent piece revealing that Harlan Crow had purchased

23:33

Justice Thomas's childhood home in Savannah, and

23:36

that he's allowing Thomas mother to live there rent free.

23:40

Crow has said that he bought the property with an eye towards eventually making

23:43

it into a museum. So, John, as many of our listeners know you worked for Justice Thomas.

23:49

You were one of his clerks at the Supreme Court.

23:52

The implication in all of these pieces is that this relationship is at the.

23:59

The least unsavory and maybe unethical,

24:01

maybe unbecoming of a Supreme Court justice.

24:04

And you've seen calls exclusively from the left for Justice Thomas

24:09

to be investigated, even in some really hyperbolic cases, for him to resign.

24:16

Bottom line here, in your judgment, did Justice Thomas do anything wrong here?

24:22

>> John Yoo: So first, he's not gonna resign and

24:24

he's not [COUGH] gonna go anywhere.

24:27

>> Troy Sinek: Of course not. >> John Yoo: Yeah, and this is the iteration, more than 30 years now,

24:33

of these kind of cooked-up alleged scandals that

24:38

the left has used to try to harass him out of office.

24:43

And I think it just makes it all the more likely that he

24:47

will serve even longer than he was planning to before, so good.

24:51

[LAUGH] But I think this is part of this broader problem where our

24:57

people in government think that we should sort of legislate morality and

25:03

even try to use the criminal law to enforce these when it's

25:07

clearly being used for policy differences.

25:11

As you pointed out, Troy, I don't see people picking over Justice Ginsburg's disclosure forms or

25:18

Justice Breyer's disclosure forms and giving them a hard time.

25:22

And then I think there's this actually an interesting separation of power issue here

25:28

about whether Congress even can legislate ethical codes for Supreme Court justices.

25:34

In my mind, the Constitution provides the regulations, right?

25:39

You can refuse to give advice and consent when they're nominated.

25:43

You can impeach them.

25:45

And if a litigant feels that a justice is biased,

25:48

then they can make a due process claim against the judge or ask for

25:52

a different judge or ask for a judge to be recused.

25:55

In this case, Harlan Crows never appeared in litigation.

26:01

As far as I understand, neither he nor his company or

26:05

his financial interests have ever appeared before the court.

26:10

And if he did, Justice Thomas would have to recuse himself.

26:14

And these extensive reporting requirements have an exception for

26:19

receiving gifts of, what's called, I think the phrase is,

26:24

quote, unquote, personal hospitality.

26:27

And so Thomas wasn't required to

26:31

report going on free trips with Crow.

26:37

I actually don't think there's anything wrong with it anyway.

26:40

But if he had, he didn't even have to report. And the reason why I think that's important is because the courts,

26:48

the judges themselves, then changed the rules just recently to say,

26:54

well, even when you're accepting personal hospitality,

26:59

you have to report if you get, I think it's free air travel,

27:04

transportation, or free stay at a hotel.

27:09

So it shows that actually, the judges didn't think until that change was

27:14

made just a few months ago that the rules required you to report any of this.

27:19

So, to wrap up, I just think it really is just

27:23

the latest episode in these efforts to try to attack and

27:28

undermine the legitimacy of Justice Thomas,

27:32

especially when his views are finally sort of pointing the way for

27:38

the conservative majority on the court.

27:42

>> Richard Epstein: Look, one of the things about this is that Thomas actually did not just do this.

27:48

He went and got himself some advice about whether or not he was required to report

27:53

and found out that the answer to that question was no.

27:56

So I think there are two kinds of issues to disentangle.

28:00

One is, can you basically say for

28:02

somebody that he is deserving of censure when he violated no known rule?

28:06

And I think the arguments against retroactive legislation or

28:10

retroactive application of new principle is extremely strong, and so

28:14

that they should not criticize him.

28:17

There is a second movement trying to do side-by-side with this,

28:20

of sort of saying that everybody on the Supreme Court has to meet more

28:24

exacting disclosure requirements when they get free gifts or something of the sort.

28:28

I have a genuine uneasiness about this.

28:31

The first question that I ask is,

28:34

is there any sign of a serious form of public abuse at the Supreme Court level,

28:40

given the sanctions that John indicated already in case?

28:44

So are there people who say, get these gifts, and

28:47

then hear cases from the people who bring them?

28:49

Are there any efforts, essentially, of covert influence that take place even for

28:54

litigation of which these parties are not a part?

28:57

So if you do work with this fellow, and then he has an interest in some

29:01

securities litigation, and he sits there on these vacations and say, hey, boy,

29:05

it would be really nice if this particular cause of action was shut down,

29:09

that would be, I think, very, very serious.

29:12

But nothing like that is alleged.

29:14

And, in fact, the ProPublica story was kinda sloppy on all the details.

29:19

I think there was a nice piece, I think it was by James Taranto in the Wall Street Journal,

29:23

sort of indicating how threadbare these allegations were.

29:26

And so essentially, one of the things that you sort of worry about is that the defamation law.

29:32

I think there's a credible argument to be made that the kinds of stuffs that

29:36

appeared in the ProPublica situation were essentially sufficiently misleading,

29:41

were done with actual malice, and that maybe it should be defamation.

29:45

My advice to Justice Thomas is never suing a defamation case if you're a public

29:49

figure, because it allows people to repeat the libels with essential impunity.

29:54

But I do think, in effect, understanding that as a phenomenon should lead people

29:59

to realize that you don't want to put a great deal of credibility into a series of

30:03

remarks which are made by people.

30:05

Whom, if you actually apply the rather exacting actual malice standard,

30:09

may have fallen short of what their basic legal duties are.

30:13

I think the fact that it is wrong is the more important thing.

30:16

I think the fact that there's no suit about it just

30:19

indicates that Justice Thomas is right not to bring these kinds of cases.

30:23

It would be terrible on his particular part.

30:25

But the fact that he does not want to sue doesn't mean

30:28

that ProPublica makes these allegations, when other academics support them,

30:33

that they should be allowed to talk, okay, freely about everything that's going

30:38

on without having to face at least some social pushback for what they've done.

30:43

So people like John, a great loyalist to a person whom he served when he was on

30:47

the Supreme Court, and I think, in effect, more people,

30:51

ought to speak out, and I hope this thing will start to quiet down.

30:56

If you're gonna try to get somebody, the basic rule of thumb is, or

30:59

at least should be, that if you wanna get a Republican, for essentially,

31:04

improprieties, you have to have some Republican support for that.

31:07

It can't be all partisan on the other side.

31:10

That's why the successful impeachment would have taken place with respect to

31:14

Richard Nixon and why all the other cases were essentially political acts.

31:18

Because there was nobody of the president's own party who essentially

31:23

was prepared to say, we think this is an appropriate response.

31:28

>> Troy Sinek: John, I wanna pick up on something you said earlier.

31:31

It's clear enough why, if you were a progressive activist,

31:35

you'd have Justice Thomas in your crosshairs at this moment.

31:39

You've got a big conservative majority on the court.

31:41

You'd like Joe Biden to be able to fill another seat.

31:44

Justice Thomas is the oldest justice.

31:46

He is now by far the longest tenured justice.

31:49

He's been there 14 years longer than Chief Justice Roberts,

31:53

who's the next most senior, so almost double as long.

31:56

But it's not as if this is new. Clarence Thomas. Thomas has been, as you suggested,

32:01

far more than any other justice, a target throughout his career.

32:05

And yet he is sort of universally reckoned as extremely affable figure,

32:10

even by his liberal colleagues.

32:12

He had that comment from Justice Sotomayor a few months ago.

32:15

He's generally reckoned to be a man of high principle.

32:18

Why does Justice Thomas so consistently work his detractors into a frenzy?

32:27

>> John Yoo: I've seen this for many decades, and

32:31

I think its because he's black.

32:34

I hate to say it, but I think if a white justice had the exact same views,

32:40

and I think some of them are close, like Alito, for example,

32:46

he would not receive 100th of the level of crap that Justice Thomas gets.

32:53

But I think what drives people nuts on the left is that he's

32:58

a black conservative, that he won't hew to a party line,

33:03

and I've just seen this over and over again.

33:07

And I think the one thing that is also worth mentioning

33:11

about this is that he doesn't bend in the face of criticism.

33:16

I think the more that the left goes after him,

33:19

the more he's gonna stick to his principles, he's very stubborn.

33:23

I think anyone can see that he is affable and

33:27

he is a great fellow, but I think he's also stubborn.

33:32

He's not going to be ma'a out into moderating his views.

33:37

Now, the thing that could easily have happened, I think,

33:41

is that he could have ended up having a career where his views

33:45

never ending up mattering all that much that his views were.

33:50

Would I give as an example, like Frankfurter, for example,

33:53

who I think was widely beloved by conservatives in the academy, but

33:57

his views never really persuaded [LAUGH] anyone on the court in the long run.

34:02

And I don't think that's the other thing in addition to him being black and

34:07

conservative and receiving a lot of, I think,

34:10

the hate that you see directed at people like Tom Sowell, for example, too.

34:15

But the other thing is that he's actually, because he's principled, because he

34:20

won't be pushed off by political texts, his views are actually winning out now.

34:25

I mean, he hasn't become like a Frankfurter, in fact,

34:29

you look at where the court came out on Dobbs last term,

34:33

where the court came out on guns and Bruen.

34:36

I think whether the court's gonna come out on the Harvard affirmative action case,

34:41

where the courts come out on religion. These are all Justice Thomas's views that he first started seeing out when he joined

34:46

the court, when people thought there was no way that a majority would ever agree with him.

34:50

So I think that also just sort of compounds the infuriation that the left

34:55

already have with him. >> Richard Epstein: John is basically right.

34:58

I mean, people on the left regard him as a traitor to the cause.

35:03

I think it's much harder to be a conservative African-American than it is

35:07

to be a conservative white person, because one case has an element of perceived

35:11

treachery and the other case does not.

35:13

And I commend the chief justice, or rather Justice Thomas, for what he does.

35:18

And let's, of course, be very clear.

35:20

When I say I praise the justice, I'm not saying I agree with every decision that he or she has written.

35:26

Quite the opposite, I think a really important evaluation of these justices is

35:31

not just to say that they're either conservative or liberal.

35:34

But to break it down a little bit further and to give your views on particular

35:38

opinions that they've expressed, which you can or cannot disagree with.

35:42

So two of the worst opinions, I think, of Justice Thomas have been beach

35:46

communication, which is one of these very highly deferential standards.

35:50

And the other one was his print paper in the Oil States case,

35:53

where essentially he allowed the absorption of all trials with

35:57

respect to patent disputes, to go back to the PTO.

36:00

But I'm not gonna sort of say, my God, that you can't let this man sit on

36:04

the Supreme Court because he's done that, so many very strong opinions that he had.

36:09

So, I think what we have to do is we try to get people to slow down and to say,

36:14

look, all of these records are very mixed,

36:16

these people have some independent power of thought.

36:20

What happens is a Supreme Court in which you only have people who start to agree

36:24

with you is going to be a place in which there's little intellectual ferment or

36:29

discourse. And that what we have to do is to recognize that the price for

36:33

having intellectual vigor, is that people will sometimes disagree with us.

36:37

And our most deeply, we held convictions, and that's true of all of these guys.

36:41

I mean, do I agree with Justice Roberts on locker against New York?

36:46

Not on your life, that doesn't mean I want him to disappear.

36:50

And so I would hope that people on both sides of the political spectrum would stop

36:55

thinking in terms of denunciation.

36:57

And removal and start analyzing particular cases with a willingness to

37:01

think that the guy with whom they disagree with strongly may,

37:05

after analysis, turn out to be correct.

37:08

>> John Yoo: Can I just throw the thought experiment out there?

37:10

And, Richard, to just reinforce this point about it having

37:16

to do with race is Richard and I, we could be said to hold views that

37:21

may not be consistent with the majority of the people in our ethnic groups.

37:28

>> Speaker 1: Or even the majority of people on this podcast.

37:30

>> John Yoo: [LAUGH] Or in your average McDonald's,

37:34

which is my touchstone of measurement for social questions.

37:39

But like Richard, has anyone ever really given you heart,

37:42

have you ever really been attacked for being antisemitic for your views?

37:46

I don't recall really ever being considered anti Asian cuz I had

37:49

conservative views. But you hear that all the time with black conservatives,

37:55

I can't actually think of this kind of race traitor claim being

38:00

made by other ethnic groups against conservatives in their, in their midst.

38:06

In fact, I often think amongst, I can't speak for Jews, I like to,

38:11

but I really, I reserve that to Richard because he's still the expert.

38:17

But with Asians, I find that the Asians don't mind a diversity of views and

38:23

political allegiances.

38:25

But, gosh, I see it all the time with Justice Thomas, so

38:29

I really do think it's about race.

38:32

>> Richard Epstein: Look, I mean, John, it's an interesting question.

38:34

There's only one occasion on which the sort of the Jewish question came up.

38:38

This is about 13 years ago, and

38:41

I was brought on PBS to give a discourse on inequality.

38:45

The report is a man named Salman, I believe.

38:48

And when he approached me first, he says, we can't find any respectable economist

38:52

who's willing to defend the current level of inequality.

38:55

So we're gonna have to rely on you to do that, with an obvious look of dissent,

39:00

and we had a battle royal on this thing in which I thin I came out at least even.

39:05

Usually when we're on a podcast like this, four people will venture their

39:10

views on it, but on this basically public television, it was conversation.

39:14

I think there were over a thousand comments that were sent to me

39:17

personally and more than 1000 comments that were sent to the network.

39:21

90% of them said, thank God there's an intelligent conservative,

39:24

don't have to agree with that. >> John Yoo: I wasn't on that show.

39:27

>> Richard Epstein: I know that you're not the only one, John, but there were.

39:31

>> John Yoo: You're a libertarian, you're a libertarian.

39:33

>> Richard Epstein: [CROSSTALK] There were at least ten or so people who said,

39:36

you're a disgrace to your race, that is,

39:39

being Jewish by virtue of the fact of taking conservatives.

39:42

>> John Yoo: So that's 1%, that's 1%.

39:44

>> Richard Epstein: And that's what I said, that's the only time it happened.

39:47

It was a very extreme kind of event, it had extremely high rates of publicity.

39:52

But in most kinds of situations, thank heaven, you could be excoriated for

39:56

your views, but not for your particular.

39:59

Religion. So I agree with you for the most part.

40:02

I've had a pretty easy go of it.

40:04

And in fact, in the one extreme case, if you've got 90% of the people with you and

40:08

2% of the people against you in that fashion,

40:11

it's actually a victory because they stand out like sore thumbs when everybody else

40:15

is taking a different kind of position.

40:17

So, I mean, I hope our fairy tale existence as academics has not happened.

40:22

But I'm not worried about the racial issue in this case or the religious issue.

40:26

I think it's the general woke intolerance,

40:28

which is the thing that keeps me up at night.

40:30

And thus far, it has not yet touched me in any tangible way.

40:34

>> Troy Sinek: So let me move you guys over to the piece of official business

40:37

at the court that is getting the most attention right now, and

40:41

that is the controversy over this abortion drug.

40:43

Mifeprestone, this is all obviously part of the fallout from the Dobbs decision.

40:49

So this drug is an abortifacient, a drug that can be taken to induce abortions.

40:54

And pro life advocates out of Texas filed suit claiming that the FDA's approval of

40:59

this, which happened back in 2000, was arbitrary and capricious, that there

41:04

were a bunch of relevant factors that the FDA didn't take into consideration.

41:09

Federal judge in Texas rules in their favor.

41:11

But nearly simultaneously, there was another conflicting ruling in

41:15

Washington State in a suit that was actually cutting the other way,

41:19

saying the FDA was putting too many restrictions on this drug.

41:22

That suit also succeeded. So now you have this split and the Supreme Court has had to step in and so

41:29

far allow the drug to stay on the market.

41:31

As this works through the courts, though, as we record this, that order is only good

41:35

through tomorrow through Friday, and we'll see what happens there.

41:39

But John, this presents, particularly in the media, as an abortion case, but

41:45

it's just as much a case about the administrative state insofar

41:50

is it's about how much deference the FDA is owed in making decisions like this.

41:57

In your judgment, how strong is the case against the FDA coming out of Texas?

42:03

>> John Yoo: Yes, Troy, that's exactly right. Finally, finally you reach behind the headlines to see what's really going on.

42:11

Yeah, this is not really about abortion.

42:14

I mean, the subject matter is about abortion, but the law.

42:17

If you read the cases in the district court circuit,

42:21

you rarely see Dobbs or Roe mentioned because the legal standards and

42:27

the legal questions are not about abortion.

42:31

They're about, as you say, Troy, the amount of review, the level of scrutiny

42:36

that courts should place on the decisions of the administrative state.

42:42

And this case shows actually all the ways that people run

42:47

into roadblocks trying to challenge the administrative state.

42:54

Because I think the FDA has played a little bit fast and loose here.

43:00

And if this was considered de novo, for example,

43:03

by de novo, I mean, suppose this was something.

43:07

No deference to the agencies, no assumptions.

43:09

They're right. No benefit of doubt to the agency. If you were just looking at this afreshen,

43:14

I think you'd want the FDA to do it over again.

43:20

But I think that's the question that you raised, Troy,

43:24

is how much deference should the courts give to the FDA?

43:28

I think, and I could be wrong about this, but I think what you see at the lower

43:32

court, certainly the trial court, but also the Court of Appeals for the Fifth Circuit

43:37

in Texas, they're probably the most conservative appeals court.

43:41

And so it was no mistake that this case was brought in Texas.

43:45

I think you're seeing here a lack of deference to the FDA,

43:51

because my thinking is that you have a lot

43:55

of doubts in our public health authorities.

44:00

I think this is a supreme court. If you remember, we talked about this on the podcast that rejected the Biden

44:07

administration's COVID vaccine mandate, rejected the Biden administration's

44:12

public health claim that it could suspend all evictions in the country.

44:17

You may well see it also lose shortly on its claim that the public health

44:22

emergency justifies wiping out all student debt in the country.

44:27

So already you're seeing that the lower courts are getting the message from

44:31

the Supreme Court that the justices are a little skeptical now

44:34

about the decisions made by our health authorities in Washington, DC.

44:38

Now, I don't want tona bore people with the nitty gritty, but there's two

44:43

different decisions here, actually, that are under review by the FDA.

44:47

One was whether to approve the drug at all.

44:50

And if you look at what the FDA did, they kind of did this under an accelerated

44:55

part of the FDA approval process, which is for drugs that treat illnesses.

45:00

And so the trial judge here sensibly said, since when is being pregnant an illness?

45:07

Now, the problem might be that the plaintiffs didn't

45:10

challenge that in a timely way. They might have waited too long.

45:13

But then there's a second decision, which I think is on firmer.

45:17

I mean, where the question, I'm sorry, the doubt is much stronger.

45:22

And I think the FDA may well lose, which was in 2016,

45:26

right at the end of the Obama administration,

45:29

the FDA lifted a number of restrictions on the prescription of mifepristone.

45:35

So, for example, before 2016, you needed three doctors visits.

45:39

Under the 2016 rules, the FDA said you don't have to visit a doctor at all.

45:43

You can have this prescribed to you by telehealth.

45:47

May not even need to be a full md to do it.

45:50

Those have been blocked by the Fifth Circuit.

45:54

I think those might. Well, that holding may well survive review at the Supreme Court.

46:00

I think the Supreme Court's gonna have to hear it either way.

46:02

Sorry for going on long, but I think the Supreme Court's gonna have to either way,

46:06

because you've got this court out in Washington State and

46:09

you have now this court in Texas that are really issuing decisions directly at odds

46:12

with each other. And that's what the Supreme Court's job is,

46:15

to make sure that federal law is uniform throughout the country.

46:18

So if both of these lower courts keep going, the Supreme Court will either take

46:22

it now or they'll end up taking this case in a few months.

46:25

But they will eventually take the case. >> Richard Epstein: Take the case.

46:28

They surely will. It's too important not to.

46:32

I think the political element of this particular situation about this drug is

46:37

really quite simple. It has been something which has been a staple on the market for 20 years.

46:43

The Supreme Court sort of understood that when it went through Dobbs that

46:47

the political response was a firestorm which they probably did not expect

46:52

to have happen. I think that they are actually on a technical issue that

46:56

doesn't involve any constitutional principle,

46:58

a little bit loathe to put themselves into the crosshairs again.

47:02

So with that background, I think that there's actually a presumption which this

47:06

decision won't survive. Now, there are two parts to it, as John said, and he's absolutely right.

47:12

And the first one is the question of, was the approval correct 20 odd years ago?

47:17

Now, it seems to me that when you have approvals like this,

47:21

the rule ought to be something as follows, that anybody can challenge this approval.

47:26

I'm not really concerned about standing, but they have to do so

47:29

within a year after the thing gets on the market.

47:32

After that, essentially the decision becomes final,

47:35

because otherwise there's just simply too much uncertainty.

47:38

And so the way I would want to say it is, I don't think the question is whether or

47:42

not they were correct when they made that decision on health and safety.

47:46

I think what you really want the plaintiffs to do is to say,

47:50

here's the evidence since that particular time.

47:52

And when you look at the number of adverse events that are attributable to the use of

47:57

the drug, either with or without the medical Medical warnings or

48:00

doctors inspections and so forth, they're just simply too high, and

48:04

this thing ought to be removed. Now, that's a very elaborate sort of procedure that has to

48:09

go back through the FDA, subject to judicial review.

48:12

My guess is that you probably can't make that out, but I'm not gonna be dogmatic

48:16

about it, because there are many physicians who reported cases of death or

48:20

some serious illnesses that have followed the use of these kinds of drugs that

48:25

might trigger that. And there's a kind of, kind of peculiar reversal of roles in this case.

48:30

Usually its liberals who are essentially,

48:32

[LAUGH] they don't like anything to interfere with the FDA.

48:36

Now they wanna basically make sure it's gonna be harder to get them to take this

48:41

thing off the market. I think, in effect, as I understand the law, the presumption would be that you

48:46

could not meet the standard that you need in order to get something off the market.

48:50

Now, the second piece is a little bit different from that, it's the question of

48:54

restoring the notion that you get physicians advisors and so forth.

48:58

At that particular point the review is not something which, if it turned out you

49:02

think the claim was correct, which would force you to take Mifstone off the market.

49:07

It would be something which says you have to restore the regulations as they existed

49:12

in 2016 and go through the kinds of procedures that you did for

49:15

the first 15 years that the drug was on the market.

49:18

And I think it's much harder to attack that if, in fact,

49:22

one could say that there's a credible case only seven years ago that the Obama

49:26

administration was clearly ultra vires in what it said.

49:29

And I don't think that requires you to go show something about medical effectiveness

49:34

of the drug. I think the question you would want to ask is,

49:37

were they within their powers to do this thing?

49:39

And I have no idea what the ultimate correct answer is.

49:42

In general, I think it's likely that the regulation will withhold.

49:46

Now, John says the Supreme Court has certainly shown its deference.

49:51

It's shown its impatience with deference, and I think he's right about that.

49:55

But this is a case which falls within the core competence of the FDA about health

50:00

and safety, about warnings and so forth.

50:03

When you're trying to basically do a decision where you say that the CDC can

50:07

end all eviction, or where the Obama administration can mandate all sorts of

50:12

vaccine mandates for the workplace and so forth.

50:15

The clear sense that you have is these are agencies which has simply lost any sense

50:20

of proportion about what it is they're entitled to deal with and whatnot.

50:25

So I think the provisions that we've seen thus far are all provisions

50:29

against somebody going beyond its core competence and

50:33

trying to do advanced extensions in regulatory power into new areas.

50:37

That's certainly the message that's gonna take place with respect

50:41

to the major questions doctrine in the West Virginia case.

50:43

And we're sure we're gonna see some challenges exactly like that in connection

50:48

with these various orders to ban fossil fuel automobiles or

50:52

gasoline automobiles through an executive order, all which is sort of good.

50:56

But in this case, when you're talking about what the FDA did, approving a drug

51:01

and changing a warning, there is no jurisdictional element to that,

51:04

which is the kind of thing that is likely to attract the Supreme Court eyre.

51:08

And even if I had complete power over this, which for the moment I do, but only

51:13

on this show, I would be very much more reluctant to go after the FDA within core

51:18

competencies than I would when they start to have these jurisdictional expansion.

51:23

And I think the real objections that the Supreme Court had is both with

51:27

executive orders and with administrative stuff, both of them coming there.

51:31

A Democratic administration treats a statute as an excuse for doing whatever

51:36

it wants and that the separation of powers issues are extremely powerful,

51:40

the due process issues are extremely powerful.

51:43

And in this case, I don't think either of those things are there.

51:46

So I think it's likely that what will happen is the judge will be

51:51

overturned by the Supreme Court.

51:53

And I think at least as I see this situation, that seems based upon what

51:58

limited information I have to be the more plausible alternative.

52:03

>> Troy Sinek: Let me ask you guys one final question on this,

52:06

about the politics post-Dobbs, and this is a jump ball.

52:10

Whichever one of you is more interested in this. >> Richard Epstein: John is more interested.

52:14

>> Troy Sinek: Well, there are now an abundance of pieces coming out talking

52:17

about how Republicans in particular are really struggling with this issue,

52:22

that they're having a difficult time navigating a post-Dobbs world.

52:26

Because it turns out that without Roe on the books,

52:30

a lot of the maximalist positions Republicans are taking on abortion aren't

52:34

that popular with the public, at least in a lot of the states.

52:38

And then there are all of these derivative controversies about access to the abortion

52:43

drugs, about rape, incest, life of the mother, exceptions,

52:46

about the permissible timeframe for abortions.

52:49

And you can understand why this is inconvenient for politicians.

52:53

But couldn't you also make the case that its sort of proving the theory

52:58

of the Dobbs decision, by which I mean that because this issue is now deconstitutionalized,

53:04

if I can use that term, and the ball is back in the court of the states.

53:09

You have this messy, contentious process as the states try to find an equilibrium on this.

53:16

But that's sort of the point. That's what it means to subject an issue to democratic scrutiny as

53:22

opposed to the way the issue was sort of calcified before under Roe, or

53:27

is that too pollyannaish? I was going to say panglossian, but I don't want to lose the whole audience.

53:32

>> John Yoo: No, this is why politicians like the court deciding it in the first

53:36

place, because then they wouldn't have to take stands on this kind of messy,

53:41

unpredictable, heated issue. They loved having the courts decide this stuff.

53:45

So, yeah, that's what we elect them to office for,

53:49

is to represent the public and help deliberate and set a policy.

53:54

And that that policy can be different all across the country.

53:57

That's the way we decide everything else.

54:00

Now, I would say the consequences actually, I think,

54:04

are that the Republican parties even though they're the ones who supported

54:09

the overrule of Roe and sending it back to the states.

54:12

Interestingly, they're the ones who are, seem utterly unprepared for

54:16

the clear political consequences,

54:18

which should have been clear at least in May when the Dobbs draft, you can think,

54:23

you can see where I'm thinking where the Dobbs draft was headed, right?

54:27

You can, you knew about a year ago that by the end of June or early July.

54:33

>> Speaker 1: [CROSSTALK]. >> Richard Epstein: I disagree.

54:38

>> John Yoo: So I think Republicans in part have made a mistake because they

54:41

weren't prepared. And then when they sort of got engaged, I think they've been trying to press

54:48

a line that doesn't represent where a majority of the people are right now.

54:53

I don't think a majority of the people are in favor of complete bans on abortion,

54:59

and I don't think a majority of Americans are in favor of bans on

55:04

abortion that take place after eight or ten or twelve weeks.

55:09

It seems to me that Republicans would be wise to maybe have a framework

55:15

that's a little bit tighter than the Roe Casey framework had been,

55:21

but that they're overreaching by trying to get respond to

55:25

Dobbs by trying to put in place bans that are too strict.

55:30

>> Richard Epstein: Look, I mean, I disagree with John on many points, but

55:33

let's start with the first one. One was it clear that essentially Roe was a political godsend to the Republicans and

55:40

that, to my mind, was probably around 1975 and they actually,

55:44

the explanation is pretty clear.

55:46

The Republican Party has two issues that they have to face.

55:50

One of them is the moral issues associated with privacy, sex, reproduction and

55:55

abortion and so forth. And the other is the issues of financial.

55:58

Liberties, small government, economic liberties and the like.

56:02

So long as Roe is a constitutional issue, it's off the political table.

56:06

And all of these people will tend to vote more conservative than otherwise

56:10

because the only things they worry about are the economics of these questions.

56:14

Once Roe becomes a political issue and it's all gone, every person who's on

56:19

the right is going to have to face the question of whether you're going to deal

56:23

with the liberal social instincts or with the conservative economic one.

56:28

You look at the political demographic of abortion, and they're actually very

56:32

interesting because the country is, roughly speaking, divided into thirds.

56:36

There is a third of the population which believes that abortion is a, illegal and

56:41

b, immoral. There's a third of the population that believes that abortion should be legal and

56:47

is immoral. And then there are a bunch of people who think that the whole thing should go.

56:52

So you have some people in the middle.

56:54

There are about a third of the population in this country thinks that abortion

56:58

should be legal, but the abortion is not a moral thing to do.

57:02

And then what they do do is they take the position,

57:04

it's a personal decision of the woman. People have asked me, well, why do they do that?

57:08

I said, if I had the right to abort somebody else's fetus,

57:12

the world would be in complete turmoil.

57:14

But what's distinctive about abortion is that every woman, and

57:18

only women have it with respect to only one set of fetuses, their own.

57:21

So it's not, though, it creates social insecurity in the way you get when there

57:25

are mass murders on streets, where people are worried about violence when they leave their homes and so forth.

57:31

So the politics, the intellectual stuff is very difficult.

57:34

Now, if you're a Republican and you're trying to figure out what line to take,

57:38

it's very difficult to figure out what you're supposed to say on this issue,

57:42

given the politics of it. And it's also another very difficult element for Republicans,

57:47

is the only tenable line intellectually is conception,

57:51

which is the only line that politically doesn't seem to work.

57:55

Now why is that? Because everything else is along a continuum, and

58:00

you can see the elements of a human form much earlier than 15 weeks.

58:04

It's sort of unmistakable.

58:06

And there's only one event that basically transforms, it's getting pregnant.

58:11

And then you ask a woman, what does she think about what's inside of her, and

58:15

if she wants to keep the baby, it could be two days old.

58:17

She says, I'm pregnant, I want my baby to be healthy.

58:20

So the ontology of what a baby is, depends heavily on whether we want to keep it,

58:24

at which point it's a person from conception, or

58:27

whether we want to remove it, at which point it's like a tumor or growth.

58:31

And all of these ambiguities basically hurt the Republican, the Democrats

58:35

basically saying, it's her body, it's her choice, all the rest of that.

58:39

They have no such ambiguities. They don't split their political base.

58:43

This thing was essentially a time bomb waiting to happen.

58:46

My view is, if you recall on this, was as follows, Monday, Wednesdays and Fridays.

58:51

I think that the terrible nature of the roe opinion, and it's truly dreadful,

58:55

means that you have to overturn it. And then on Tuesday, Thursdays and Saturdays saying,

59:00

we've gone a bit too long and to try to turn it now,

59:03

it's not gonna be able to go back home again to what things were like in 1972.

59:08

It's never going to happen, and I still feel that kind of ambiguity.

59:12

I have no doubt on the moral side that I'm with the groups who thinks that abortions

59:16

are immoral except in certain limited circumstances.

59:19

Many of the problems that you get in this case is people who think that life begins

59:23

with conception. The only exception they're prepared to make, if any,

59:27

would be to protect the life of the mother.

59:29

They're not prepared to deal with rape or with incense.

59:31

They're not prepared to deal with defective children,

59:34

were known to have terminal conditions like Tay-Sachs disease and so forth.

59:38

So the debate takes place on so many different levels.

59:41

There's a federal and a state component in this.

59:44

There's an interstate component in this.

59:46

And so what's happened is it's going to take another decade to work through these

59:50

kinds of questions to figure out which way it goes.

59:53

But there is no doubt in my mind that even if the Republicans that had an optimal

59:58

political strategy or intellectual strategy,

1:00:01

the only thing that they can do after Dobbs was damage control.

1:00:04

There was no way they were gonna come out of the political debates stronger than

1:00:09

they were, than when Roe was in place.

1:00:12

>> Troy Sinek: We are just about out of time, and I just want to sneak one last

1:00:15

question in here, just as a matter of a point of personal privilege, just

1:00:20

a topic that I wanted to hear you guys talk about since it came into the news.

1:00:24

I have a modest obsession with the ongoing fight between

1:00:29

Ron DeSantis and Disney in Florida.

1:00:33

Most people were obsessed with the politics of it, which is, of course,

1:00:37

that Disney came out in opposition to the bill DeSantis was backing to limit

1:00:41

the classroom discussion of sexuality and gender identity in Florida,

1:00:44

which the media quickly caricatured as the Don't Say Gay bill.

1:00:48

And DeSantis, in retribution for this, ended up changing the structure of what

1:00:53

used to be called the Reedy Creek Improvement District,

1:00:56

which is the municipal organization that essentially allows Disney to sort of run

1:01:01

its own city government, essentially in the area that they own outside of Orlando.

1:01:06

They basically cover all their own infrastructure and utilities,

1:01:09

they self-tax and everything else. And this is the part I'm obsessed with, because its kind of remarkable.

1:01:15

I was there about six months ago, and

1:01:18

it is a stark reminder that Walt Disney was sort of a benign fascist.

1:01:23

He was kind of the American Lee Kuan Yew.

1:01:26

And this is a very controlled environment, but one that is very pleasant and

1:01:30

operates with clockwork efficiency.

1:01:33

Anyway, DeSantis got it restructured into a new board where he gets to nominate

1:01:37

the members. Previously, Disney had de facto run it, and then at the 11th hour,

1:01:43

the old Disney controlled board actually ceded most of the important power

1:01:48

back to the Disney corporation.

1:01:50

And they did so, this was the detail that the Internet loved,

1:01:53

with the provision that this arrangement would hold.

1:01:56

Read you the quote, until 21 years after the death of the last survivor of

1:02:01

the descendants of King Charles III living at the time of this gift.

1:02:06

So, yes, there is a clear legal principle at work here, right, Richard?

1:02:10

But most of the Internet did not know this. So this feels like something that is tailor made for one of your classes.

1:02:15

Richard. There is a big argument now over whether DeSantis just got outplayed by Disney here or

1:02:20

whether the state actually has the power to just come in and invalidate this.

1:02:24

What is your read on this? >> Richard Epstein: There are two issues.

1:02:27

One of them is, can the old board dump the power back to somebody else when they knew

1:02:31

the new board is coming in? This has nothing to do with the rule against perpetuities.

1:02:36

But what it does have to do with is the question of whether there's

1:02:39

something like a fraudulent conveyance to seed power,

1:02:42

which you already know is taken by somebody else.

1:02:45

My view is on that issue. DeSantis is likely to win regardless of what you think of the power, the politics.

1:02:51

I think the state essentially, if it has the power to regulate the private party,

1:02:56

cannot duck that particular thing by ceding its powers back to the very object

1:03:00

of its effect. The rule against perpetuity is something else, and

1:03:04

this is a rule which is very obscure, and it's supposed to tell when a contingent

1:03:09

remain divests an interest and becomes protected.

1:03:12

This is not a rule against perpetuities question at all cuz there's no future

1:03:16

uncertain interest. But the rule against perpetuities, when it does apply,

1:03:21

says that you have a life in being plus 21 years for an interest event.

1:03:26

Now, who's the life and being?

1:03:28

Well, what happens is, normally what you do is you just make a will and

1:03:32

you say mom and dad and so forth.

1:03:34

And it turns out when they die, 21 years after that,

1:03:37

most other people are going to be at risk.

1:03:40

But what you do is you now contrive a new ruler.

1:03:43

So you say the last living descendant of King Charles, now alive, to this gift.

1:03:47

They're all, technically speaking, life and business in being under the rule.

1:03:51

Probably the youngest of these people is somewhere around three years of age.

1:03:55

The life expectancy. If you have 20 people in this class, you can't go.

1:03:59

Much larger than that is that at least one of them are going to live for

1:04:02

another 80 years, which means that you then tack 21 years after that.

1:04:06

This is a device, essentially, to negate the rule against perpetuity in the cases where it applies.

1:04:12

In this situation, it's just a comical add on to a situation,

1:04:16

because the board is claiming that its powers vest tomorrow.

1:04:20

So long as they vest tomorrow, the rule against perpetuities does not apply

1:04:24

because it only applies to what they call remote vesting,

1:04:28

that is, vesting at some time in the future.

1:04:30

The reason we call it a perpetuity, it's some issue which,

1:04:33

when it's vested, supposed to last forever.

1:04:36

So this is designed to prevent the dead hand from controlling the future.

1:04:40

The dead hand today, that is, the Disney current board is trying to control the current situation.

1:04:46

I think, in fact, DeSantis will win on the legal issues, but it's nice to see that

1:04:51

every time the rule against perpetuity comes up, it gets mangled.

1:04:54

For those of you who are movie aficionados, do you remember the movie in

1:04:58

which the rule against perpetuities, garbled as it was, led to murder?

1:05:02

Do either of you remember this? >> Troy Sinek: I have no idea.

1:05:05

>> John Yoo: Body Heat, wasn't it? >> Richard Epstein: Yes, Body Heat.

1:05:08

My word look at that man.

1:05:13

What? It comes to the rescue, John.

1:05:15

You don't know the first thing about property law, and

1:05:18

now you establish yourself to be an eminent scholar on the entire position.

1:05:23

My one piece of advice about the rule perpetuity is to.

1:05:26

Against. You can't even say the word against perpetuity.

1:05:30

>> John Yoo: If you take the bar exam and you come across a question that

1:05:33

has the rule against perpetuities in it, just skip the question and go on, because

1:05:37

you'll waste so much time trying to answer it, you won't finish the section.

1:05:41

Just skip it and move on.

1:05:43

>> Richard Epstein: I am now. When I started teaching in 1968, the first course I taught was a course in

1:05:49

future interests in which the rule against perpetuities was about half the class.

1:05:54

I took those raw recruits from the University of Southern California when

1:05:58

I was all of 25 years of age, imbued with my English knowledge, and

1:06:02

I got them to understand. Now when I teach it, I don't spend half a semester on it.

1:06:08

You can't. You spend 2 hours. Essentially what you do is you take the simple paradigmatic strategy,

1:06:14

which is to call breed and die.

1:06:16

And if it turns out that if you breed and then die, can the issues survive?

1:06:23

It's only because some previous life was there, and

1:06:25

it turns out you could actually teach it much more quickly.

1:06:29

On the bar, the California Supreme Court at one point said that if you don't

1:06:33

understand the rule against perpetuities, nobody else does either.

1:06:37

It's not a legal form of legal malpractice for you to mess it up.

1:06:41

I think it was a case called Lucas. I'll mention another.

1:06:46

>> Troy Sinek: Can I just mention another important, very apropos,

1:06:50

important rule I remember from property trust in estates,

1:06:55

which applies with particular suitability for Professor Epstein,

1:07:00

is the problem of the fertile octogenarian.

1:07:03

>> Richard Epstein: That's part of the rule against perpetuities.

1:07:08

>> Troy Sinek: Exactly. >> John Yoo: And we have an octogenarian on the podcast.

1:07:11

>> Richard Epstein: Yes, we do, but with an unfrozen kidney.

1:07:14

Yes, all of that stuff. But that was a case called Gian Audley, and

1:07:18

it's the same problem as the unborn widow.

1:07:21

For those of you who wish to do this, we could have a separate podcast on this at some point, put you all to sleep.

1:07:27

Solo on that. The man who basically was most responsible for

1:07:31

debunking the rule against perpetuities in the mid 20th century is a man named W.

1:07:36

Barton Leach. He was the guy who invented all of these crazy names,

1:07:40

the fertile octogenarian and the unborn widow and so forth.

1:07:44

It was a remarkable tour de force and what he did.

1:07:48

But I think it's, the hour is late. Our audience must be duly fatigued from John's erudition and

1:07:53

Troy's great question. So I will refrain from ruining your afternoon by explaining each of these

1:07:59

endless variations. >> Troy Sinek: You never know what's going

1:08:02

to happen in the last ten minutes of the show. It always goes a little sideways.

1:08:06

All right, fellas, that is all the time we have for today.

1:08:09

Thanks to you both, as always, to our producers, Scott Immergut, and

1:08:12

to all of our wonderful listeners. Remember to do us a favor and rank the show wherever you get your podcasts.

1:08:18

We'll be back with you soon. Until then, the faculty lounge is officially closed.

1:08:24

All right, yeah. >> Speaker 6: This podcast is a production of the Hoover Institution,

1:08:36

where we advance ideas that define a free society and improve the human condition.

1:08:41

For more information about our work or to listen to more of our podcasts or

1:08:45

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