hello everyone and welcome back to conversations with tyler today i'm here with jamal greene who is professor of law at columbia university he recently has published a very interesting book called how rights went wrong why our obsession with rights is tearing america apart jamal welcome thank you good to be here we will get to rights but first i have some questions about baseball okay using law and economics reasoning
how would you improve the current organization or laws surrounding baseball well i i wish i could answer that question better than i can and and part of part of it is i don't pay much attention to baseball anymore uh i i do think that sometimes and i'm not i'm also not the best uh law and economics reasoner but i can try you know i think sometimes uh baseball's um incenses are misaligned um uh as far as i can tell at least um you know
they're they're doing what you know i used to be a baseball reporter and i worked for a magazine that was uh doing exactly what major league baseball is doing which is having its audience get older and older and uh there's a couple of strategies one can employ in response to that you can sort of change the product so that you try to attract younger people and different people or you can you know cling to what you to to your your old
subscriber base in some sense and i i think the structure of baseball is not really well suited to the modern age uh and they should hold on as long as they can to the people who really care about it i don't think you're going to like move second base a little bit or put in some robot umps and then you'll get you know 18 year olds getting into baseball i think it's you have to see the writing on the wall
does that mean it's a bigger problem than it used to be that baseball has its historic exemption from antitrust law well i i i don't i don't think baseball should have an exemption from antitrust law um uh um you know i don't know that i i suppose if it's less popular than it once was then there's um whatever uh justification there is is diminished that that sounds right to me what do you think is the biggest general
problem with law and economics style of reasoning you know i i think as long as it's limits are understood it's not a problem just as any other form of reasoning um has its limits uh so i i i i think that when one uh understands it to be uh the the best you know i think sometimes we confuse internal debates about interpretation internal debates about the right answer to legal problems with the sort of external question of
uh what's the what's the right answer in this case what i mean by that is that uh it's perfectly sensible to say that the right answer to a legal question should be supplied by specified through uh through law and economics so long as you understand that other uh other methods are also legitimate uh and you're actually trying to stake a claim within a conversation about method uh and so long as i think people understand
those limits it's all fair game what's the best way to improve america's legal education system we put you in charge why do you change i think there's a small thing i would change um and that uh i would i this is really sounds really small but but it's such it seems so straightforward to me uh that uh law students shouldn't be buying their own textbooks um uh uh separate from you know the ordinary expenses of you pay a tuition fee
uh and the price of textbooks should just be kind of diffused through tuition costs and the ways in which people pay for those should also pay for their textbooks but that's a small thing the bigger thing is i would change the calendar for professional hiring in law this is a little bit esoteric but it matters a lot to our students is that if you want to go into a job as a at a major law firm and you go to a a good
law school those jobs get offered to you at a time when you have no other alternatives and so it makes no sense regardless of one's sort of individual preferences it makes no sense to turn down those jobs when you actually have no alternative so i think that creates a lot of distortions where you end up with people who are at these firms who don't want to be there um and uh and and it it biases the market so that people who
uh who want to go into public interest for example are the ones who are able to take that risk on which is you know not a very good match between who's genuinely interested in other alternative avenues and who just can't afford to take certain kinds of risks so at least in my world which is the world of a certain kind of law school i think that's a major problem if we made textbooks free wouldn't either tuition go up or the quality go
down in some other way and at least with textbooks there's a kind of built-in price discrimination so poorer students can buy used copies or older editions but if the quality of food in the cafeteria declines or tuition goes up everyone bears that and in that sense the change would be regressive so that's that's possible you know i think that i think it would be folded into tuition and so i think part of part of it is
students make different choices when they perceive it to be something that's a baked in cost versus perceive it to be something that they have to pay for separately and if some students are buying used books or some students are buying only digital copies just because of their perception of cost that seems to me to be to have some some some real unfairness to it now it's possible that it would that it's there's not that big of a
difference it's not it's not a significant enough difference that we should care about the distributional consequences but um but but i tend to think that just as other law school costs are not um are not uh uh sort of uh uh a la carte um i think textbooks shouldn't be either how do you say the same thing about courses right like sure how would you improve the lsat system i think i would just use it less um i
don't know that i would eliminate it entirely um uh but you know the idea that someone people should be admitted to law school you know 50 or 60 or something based on lsat scores um seems to me likely to be problematic there are problematic pro there's problems on either end right if you if you get rid of tests like that then uh people who are very good at succeeding at things are going to succeed in other ways uh and so there is a
there is a certain transparency about the lsat that uh that is that is that i think is maybe not something you'd want to fully eliminate uh but it does bother me that the your performance on a on a test on a you know three hour test has such a profound influence on which schools one is able to go to uh it it would surprise me if there are not better ways of doing it but i it's i'm not i'm not deep enough in admissions offices to
to launch a strong criticism but do you have a sense there's a better predictor of success as a lawyer well i i i don't i mean that you know schools are trying to optimize for different things um i don't know that schools should necessarily be or that there's any any reason schools need to pick students on the basis of who they think will be good lawyers as such schools have a lot of different goals that they might have in mind they
might want to have a certain kind of community on campus they might want to produce certain kinds of lawyers which isn't isn't just about a kind of abstract view of lawyerly quality uh so it just depends on what that what the output is and that that's that's going to vary um both across schools and within schools right so you're looking for um for a certain kind of professional diversity uh in addition to a kind of you know tom
cruise at the firm um kind of uh top-notch lawyer so i i do think that the lsat lsat uh predicts for a certain kind of lawyerly skill i i don't i don't i don't doubt that but uh what i do doubt and i think this is true to the in internal policy choices of law schools that they're that's not that's not the only thing they're trying to produce should law reviews be edited by students yes um right what do the students know they probably
couldn't publish in those live reviews i don't i think that there's some um something to be said for peer review um of which articles actually get selected um and those are that's a different uh function of law reviews selecting articles than than the editing process where i actually think students on balance although they're not always good at it of course but on balance they i think add a lot of value to the editing
process uh and and um make sure that certain uh certainly they fact check um for example which i think is we resist it because we think we know it all but um but it's actually very valuable um i also think it's you know when you see uh a um some institution that seems to be inefficient right you have to think about what it's actually trying to produce um and i think part of what law reviews are
are doing is giving a certain kind of experience to law students they're not just about producing scholarship uh uh and and the second thing i'd say is you know there's always going to be a trade-off if you have you could have you know highly professionalized highly elite gatekeepers and then you keep out a lot of good stuff because it doesn't go through the the right gate um and then on the other end right you have uh uh not very
uh efficient gatekeepers you have lots and lots of lower views and it's kind of hard to find the right uh it's hard to to do sort of quality control but you get a lot more stuff out there and i think given that law has always has one foot in practice and one foot in the academy i think there's really a lot of value in um in getting a lot of stuff out of there within within our particular field should there be blind review of the
articles that is the editors don't know who wrote them i think generally that's a good practice i think it's i think given the volume of larvae submissions um uh it can it maybe can be a little bit um hard to actually operationalize that but but but i think that's i think it's a good aspiration but just make people send it in without the name on the cover so you could have a system set up some assistant handles the initial submission
and then it's handed to the editors who this way they can't look and see oh this is a famous person this is richard posner of course we have to take it and they judge it more on its merits yeah no you could you could you could do a version of that i mean i think at the i think it's given the citation practices and law it can you can't it's hard to fully anonymize but but i think that's the right aspiration when i was a larvae
editor we mostly did that at yale and i think a number of law reviews um try to do that sometimes again it's hard to avoid but uh but that's the i think i think that it's the right goal what is the question we should be asking supreme court nominees that we're not asking them now well sh should is a funny word i think in an ideal world um because the the the confirmation process i mean maybe we should be asking them nothing right
because the confirmation process doesn't actually serve that much of an informational value it it it's political posturing and so forth but i think if one were actually to try to design a confirmation process that was useful i think you would just ask them their views about cases that have been decided ask them if those cases were correct um you know they they say that you know that that biases them in some way or
conveys bias i just don't buy that one can have a view about something decided in the past and change one's view based on new information and uh and so there's no there's no necessary bias and so the idea that they haven't thought about these things or have no no form views or that we shouldn't be aware of what their views are um seems to me to be profoundly undemocratic uh and so uh so i would i you know if i if i
could forgot and could control the process i would i would you know have a conversation about about the supreme court stalk it but the the court itself is undemocratic by design so it's funny for me to hear you say some practice in the confirmation process is undemocratic the whole point well the confirmation process is not undemocratic right so the the way in which they're so chosen is not undemocratic they're chosen um to
yes they their decisions are not um are not democratic in the same way in which um elections are democratic although they do vote um so in that sense they're democratic but uh but they're political appointees um
and their political appointees for a reason because they they make law for for society and so people who do that should be chosen through democratic means and they are chosen in that way so as long as we're talking about the selection process
um yeah we should know who they are we should know what their views are um we should debate them and we should make decisions on the basis of of the conclusions we reach on average how many non-judges should be on the supreme court at any point in time basically we're picking from former judges right yeah so um why do that so i i thought you were asking something slightly different which is whether they should be
lawyers or or not oh that do of course there's another question um uh you know i think i i don't i don't have an uh a prairie answer to that i do think there's value in having people who are who are lawyers i actually am i think i'm okay with mostly lawyers but um but or maybe even all lawyers but uh but they don't have to come from judging elena kagan didn't come from judging and i think she's a terrific supreme court justice um uh
hugo black didn't come from judging i think he was a terrific supreme court justice uh so people who come from politics people who come from academia people who come from other forms of lawyering um but not straight from the judiciary it's a different kind of judicial role at the supreme court the cases are are closer they're not just not strictly bound by precedent they're often deciding serious political moral questions um
and so i think having some exposure to other forms of decision making is perfectly sensible but it happened so rarely when was the last time a non-lawyer was on the supreme court oh non-lawyer um so there haven't been any non-lawyers on the supreme court um there have been people who didn't there have been people who didn't compete complete law school but they were but back then you know you could become a lawyer in other ways uh
so so no one in the u.s supreme court who is not was not who's not understood to be a lawyer at the time i don't think it would be disastrous to have a non-lawyer on the court there are non-lawyers on the judiciary committee some of whom ask good questions um who are smart people who could figure it out um but a lot of the court's docket is is quite technical um and i happen to think that you know court the court should have
panels and shouldn't not everyone should hear every case and so if you did something like that maybe you could have a sort of non-lawyer panel or something but but um you know outside of the big ticket you know your your affirmative action cases your abortion cases you know these big controversial things i don't need think you need lawyers to decide those questions but i do think you need it's pretty hard to be a non-lawyer and
decide a technical statutory interpretation case but isn't that a main way in which the court is especially undemocratic that is most people in america are not lawyers there's a general sense whether correct or not that the law plays too strong a role in society many people will say there are too many lawyers there are lawyer jokes especially if we're going to expand the numbers on the supreme court as you've
argued for wouldn't that be a great time to introduce say three to five non-lawyers have a philosopher have an economist so i wouldn't be opposed to that um necessarily i'd have to think about it more but i wouldn't necessarily be opposed to that again i do think there are a number of a number of kinds of cases the court hears that are not well suited to people who are not lawyers but there are also cases the court hears that are not well
suited to people who are lawyers um and so or not or at least not uniquely suited or especially suited to people who are who are lawyers so i i'm not i would not be totally opposed uh to that to that idea i i resist a little bit the idea that that the reason for that is grounded in democracy in some in some serious sense or representation in some sense um insofar as i do think that the court plays a role that's different from other
democratic institutions but but again i don't know i don't think it has to be played by lawyers i think that's a fair criticism but i'm not just saying it doesn't have to be but why clearly shouldn't it always be played by lawyers so if i look at anti-trust cases it seems to me a pretty high percentage of justices historically don't understand antitrust very well because they're not economists
which is fine not not to be held against them but again it's an argument for having people with say business experience on the court yeah i think that children i i think that's fair um you know i i wouldn't want to get too specialized but there's a good argument that we're all ready too specialized um uh in a technical legal sense i i believe and i've said before in in writing that the court should uh take what we what we call social facts or
legislative facts into consideration more in their decision making they should be more empirical than they are and if i think it makes sense to accompany that kind of call with uh with serious consideration of whether some of them should have other other competencies i think that's perfectly fair so to turn to your book how rights went wrong by jamal greene uh but the same arguments can be found in your articles
uh you argue that the american conception of rights is quite different from that say found in western europe or indeed other parts of the world and what is it in your opinion that is upstream of that american difference is it that we're a more ideological nation and thus we put a lot more emphasis on a smaller number of rights or what's the cultural determinant of the difference that you're pinpointing
well i i think there are there are multiple cultural determinants uh i think our experience with race is maybe if i had to point to a single one uh it would be that insofar as we associate rights with a particular history of racial race-based pathology right that that people have people have rights in the same way that you know african americans have rights to not go to a to be forced to go to a segregated school uh and uh that
association of rights with pathological governance is i i think leads to a certain kind of binary understanding of right what rights can do right rights in my view rights in a constitutional sense can arise in lots of situations whether the government's acting well or not acting well because rights i think are just a byproduct of pluralism so other countries don't have the same historical baggage that we do
when it comes to to race there's also some issues around you know on the one hand we think that rights should be understood in really strong terms and on the other hand there are a bunch of economic rights that within our legal culture are understood as being very very weak right so you have this kind of binary where you're kind of choosing whether you're talking about something very weak or something very strong instead of talking about
rights much more contextually but there seems to be plenty of american exceptionalism that extends far beyond race or doesn't boil down to race or it pops up in issues that are quite non-racial or appear to be non-racial so race might be one factor but it doesn't it stem from something very fundamental in the nature of american society we're more literal we hold ideas more strongly we're more suspicious of state power
so all those other non-racial upstream factors is it that you want to change and reform those or you want to change our notion of rights but keep all the upstream factors in place well i think the upstream factors are
maybe a bit more contingent than than you're suggesting right so the way in which americans understood rights before the 1960s was i think generally quite different or let's say the middle of the 19th the middle of the 20th century was quite
different from how we understand rights today we often tie our rights arrangements to the founders or to the bill of rights or something in our in our ancient constitutional arrangements but that's certainly not how the founders thought about rights not not in the quasi-absolute sense that we do i do think suspicion of state power i think that's accurate um as to americans i think we're more classically liberal or liberal-minded than
um europeans say uh but uh i don't think that that's an obstacle to saying that you know that so um part of what i'm urging is a recognition that rights or are rights rights pluralism is um inseparable from pluralism full stop uh right so part of part of it is it's being accepting of pluralism in a way that i think it's right that part part there's a part partly a culture resistance of that um but uh but i think that's i think
that's destructive i think uh pluralism is something we need to embrace and embracing it requires us to understand that we're different from each other in important ways and we have to reconcile those differences at least as you state the argument in that paragraph it would seem you'd be sympathetic to a lot more federalism which could allow for the creation of a lot more rights of intermediate strength
a lot of diversity pluralistic approaches across different states as say we've seen with the treatment of covid but you don't seem to go in that direction why not well i'm not i i i am sympathetic to federalism i part of the reason uh it may be perceived that i don't go in that direction is because historically federalism has has been used in large part to defend white supremacy um uh it doesn't need to be used in that way uh and
if if we're not identifying not recognizing um that kind of pathology i think federalism is entirely compatible with and makes sense in the context of rights in fact i i think that a kind of rights federal you know we we we sometimes say that rights have to be universal in some sense i'm not sure why that's true i think rights are constantly a subject of contestation just as governance is constantly a subject of contestation
and there might be lessons to be learned from having some flexibility in how we think about those in different institutional contexts and across geographic space what do you think of the critique made by many supply-side progressives such as ezra klein that there's an accretion of too many veto points in our legal system so no one would say that snail daughters have absolute rights but they have some claim to a level of review before you can
build something that pushes them out and if you have a lot more let's call it non-racist federalism a lot more intermediate layers of rights you just accrete more and more reviews reviews more delays things don't get built things don't happen we can't fix global warming as a problem because it takes seven years to get your wind farm approved and isn't having a proliferation of the number of rights in the middle actually the problem we face
well no i don't think so um so when i talk about rights federalism i don't mean sort of creating more rights in the in the sense in which we in the we associate rights with a certain kind of absolutism um and that's not what i mean um what i mean is rights are not just about things that courts say right rights are are grounded in um in political negotiation uh and i think that the number of sites where
that political negotiation is possible should be greater um i think that that's um that's gives people leverage in political negotiation in ways that they don't have when you say okay you've got a kind of absolute free speech right that applies the same way everywhere uh and anyone who wants to stop something speech grounded let's say it can invoke this absolute universal speech right uh i i think that that's as destructive more destructive of
um of government effectiveness i think government effectiveness is itself something that can and should be understood in right terms but we have a right to democratic participation and to the fruits of those participation to um to uh to to to bear fruit um right so how long does the median political negotiation take in terms of months or years well well i don't mean political negotiation at a congressional level i
mean in the in our day-to-day interactions with each other right uh that we so there are a lot of different sites for politics right not not just in some legislature or some such uh it's the what the call is is a call for there to be um less trumps um uh and in that sense less veto points because nothing's ever quite a trump and people knowing that they're not going to win in court are less likely to go to court
as someone who lives in new york surely you're familiar with how hard it is to get new subway lines built right yes it can take many decades it costs far too much uh maybe it doesn't ultimately get stopped like the second avenue line has opened even though it was first planned in the 1970s but it does seem and it's not congress at fault right it does seem there are just too many interaction points too many rights relevant claims that can be
made to slow things down and isn't that the problem we need to solve if we want actual democratic accountability that the things you choose from your democracy can then actually happen well if we're talking subway infrastructure i mean it depends on what you're talking about right so different different cities are different at good at different things um new york is very bad at subway infrastructure for sure um
i don't have a story to tell that connects that to to to veto points the costs are much higher in the cost of construction much higher in new york than other places and i don't have a good story for exactly why that's the case but you know other places that think about rights in much more flexible ways have perfectly good public infrastructure canada much of western europe for example um right so i that that i'm not sure how
much of a story one can tell in that sense yeah i think generally again we should we should constantly be concerned about the ability of government to be effective and if if some particular rights regime whether the one i'm describing or the one i'm criticizing is standing in the way that's a problem right so i'm i'm not i'm not suggesting any kind of essentialism about this um but uh but what i observe is that uh people
um use the putative absolutism of rights to prevent government from being effective on a quite a regular basis what do you think is the most worrisome unintended consequence of implementing your vision of rights for america well i think that i think the biggest potential problem is um is an inability of courts and other and political actors further down in the system to know what their rights and obligations are right so u.s
courts the u.s supreme court is an apex court it sits on the top of a pyramid a hierarchy of other courts and all of those courts have constitutional jurisdiction right so you have the you have a potential for chaos that is not present in many other jurisdictions although some canada for example has the same uh the same basic structure uh so a a kind of deep legal uncertainty uh is i think something that one would should
be concerned about and should watch out for i think it's overstated as i as i've said i i think some flexibility and some inconsistency in the law is not as bad as sometimes we say it is um but uh but i but i do think that you know that can upset expectations uh it can make it hard to plan right so i think uh i think that's the thing to watch out for there's a kind of crude view in popular american society you know even possibly correct
that simply american society is too legalistic so there's that book three felonies a day right if you have expired prescription medicine in your cabinet you're committing a felony people who are very smart will just tell me like never talk to a cop never talk to an fbi agent and i'm you know an upper-class white guy who's never literally never smoked marijuana once and they're telling me don't don't ever speak with the law
i isn't something wrong there and is the common intuition that we're too legalistic correct i think that we're we are too apt to submit political disputes to legal resolution i think that for sure i think what your but what your friends are telling you about police officers is slightly different um in so far as one could have a one could have a deeply non-legalistic culture in which the correct advice is to not talk
to police officers if those people are corrupt um if those people are abusive um uh and i i think that that's at least when i hear that advice and i might be differently situated than you um that's what people are saying is uh someone might be out to trick you and that might be a mistrust of state power as you mentioned before uh maybe it's a rational mistrust of state power uh but i don't know that that's about legalism which which again
i think is a separate uh potential problem in that we tend to formulate our problems in legal terms as if the right way to solve them um is to uh decide how they are to be resolved by a court or how they are be to be resolved by some adjudicative official as opposed to thinking about uh our problems in terms of just inherent in in again pluralism uh which has to be solved through politics as we saw through conversation
but we still have all this uh whatever is upstream of the american law that this deep historical and cultural background so anything we do is going to be flavored by that so we're not ever going to get to a system where the policemen are like the policeman in germany for instance or that the courts are like the courts in germany and given that cultural upstream again isn't the intuition basically correct just be suspicious of the law
we should have fewer laws rely less on the legal process in essence deregulate as many different things as we can uh why isn't that the correct conclusion rather than building in more rights well i i'm i'm i'm skeptical of the of the cultural premise um or at least i think it requires more specification i do think that americans have a history of being paranoid um about various things uh but this idea that
you know there's something um that that that state building in is is somehow un-american or something um i just don't i don't buy it um there are there were there was an inflection point i think an important inflection point in the 196 around and around the response to the great society that i think one can't separate from race quite as cleanly as um as one might might wish to um that associates big government with
um with uh helping out racial minorities in particular and there was a reaction to that i'm not conceding i won't concede at this moment at least that um that that we just have to accept that um that that's just an inevitable feature of the american the american people if they can't we can't um we can't uh that we that the the solution to which um is some kind of deregulation i it it um i it's hard for me to draw a line from
what i see as the problem to that solution but say we consider the notion of making disabled people either a protected class or a partially protected class and you've written about this aren't we in that sense forcing them much more into the legal system so you have to get a legally valid diagnosis right to count as some particular kind of disabled autistic adhd whatever it may be doesn't that legalistic requirement
itself infringe on the rights of many disabled people who may not even think of themselves as disabled or may not wish to be labeled or they don't want to get a diagnosis because it will work against them when their divorce case comes up or for some other reason in the workplace is that a case where making it more legalistic is going to infringe on a lot of people's rights and lead to great harm uh no i don't think so um i don't think
that require that um providing more openness than the law to disability claims um requires people to be in some kind of registry or something of disabilities that's stigmatizing or something rights are for those who who wish to exercise them not for those who don't uh but but as a matter of actual evidence you have to show you have the disability right well it depends on what we're talking about right so i'm not someone who believes that
rights should necessarily loans right should necessarily turn on on one's individual claim to an exemption from some scheme right so part of what when i talk about disability rights that so a couple of things to say one is that we should respect political processes that protect disability rights and right now we don't fully um and that's not necessarily a matter of presenting your oneself as disabled someone have a business having to make a
reasonable accommodation helps anyone regardless of anyone who needs the accommodation regardless of what their particular legal designation might be but there's also another point which is that when we're talking about disability rights there's there's genuine injustice that i think many of us recognize as injustice that people who are less able or less able to thrive is something that it's not just a matter of kind of a
legal technicality that we think that these people should have rights it's that we think they should have rights um and so there shouldn't be legal formalisms that get in the way in the way of that and that's my that's my objection but say an autistic person says well i hate fluorescent lighting you need to change the lighting in the workplace and the employer comes back and says well at least i need to know you're autistic
where's your diagnosis that seems like a pattern we might expect whether we like it or not right so there's not some accommodation that simply helps everyone the lighting is one one way or another um well that be a right that has partial recognition well i i think if we're talking about um individual claims right so you so there are lots of situations in which um well let me let me back up it is it is the case that if you make
more claims legally available um people may argue about whether that whether those claims should be should be recognized in the particular context of disability the problem that i see is uh that there are genuine claims of right genuine claims of justice that are unrecognized right so uh the fact that someone who has a disability is not being accommodated is something that counts as a cost for me right so the fact that there that it also means
that legal claims will be will be involved is um is something that i think is overcome by uh by the but by the the connection between the the actual accommodation and what we think uh justice requires the other flip side of that is there are lots of rights that we have in our culture that are not actually connected to any deep conception of justice right i have a right to watch pornography in my home
um if the state said that i don't have that right that's costly to me but that's the connection between that and i think many of our conceptions of justice i think is much weaker than the connection when it comes to disability rights right so it's not that i'm saying we don't have many rights now we should have many more it's that there's a misalignment between the rights that we think are worth it and the rights that we don't think are
worth it now i'm a fan of robert nozick though not in the absolutist sense but nonetheless i believe there's some right to economic liberty so if a state set up say occupational licensing for interior designers i would want at least a state court to strike that down and say that's a violation of the right of economic liberty and that there's no other overriding concern what would be an example where you would
want a policy struck down for violating economic liberty i i i i also would say as a as a tentative matter right that uh occupational licensing for interior designers would be a policy that i would think should be struck down as you do our current system doesn't allow that kind of claim to be struck down i mean in some ways it's this is analogous to the disability situation where if you've got no good reason for a particular law
although it's not not fully analogous if you have no good reason for particular law that law shouldn't be in place um i i say tentatively because i think that all of these kinds of cases shouldn't turn on some major premise about about economic regulation or some such it should depend on the facts and i don't know enough about interior design to know whether there's some good reason to have occupational licensing it
doesn't seem like there's a good reason but but i'd want to know you know factually right so uh th those the the empirical record matters sure you might think there could be some particular kinds of frauds would proliferate in the less regulated regime but you still at the same time might hold the opinion there's a right to economic liberty and you can contract for your interior design with the persons you want it's not creating any
overriding danger to the polity or it's not like eliminating all licensing for all doctors it's just something one can live with and that if you want to make your living that way that's your right to do so why isn't that just prima facie correct i i don't i don't i wouldn't deny that that's prima facie correct i would phrase it slightly differently or frame it slightly differently which is to say that i think people do have a basic
right to the government justifying when it regulates them right so i don't feel a need to label that as a right i mean labeling it as a right carries some baggage and maybe makes people have more greater expectations of how far they can go than than they than than i think is healthy um but uh but but yes absolutely if there's no good reason to regulate then the government shouldn't regulate there are there are
there are some issues with a regime of that sort and as a as a us lawyer you know people will throw you know lochner versus new york um at that at that kind of system but to my mind the problem in the lochner case which is this famous legal case from 1905 about maximum mowers law uh which the court struck down is not that the court should never strike down maximum hours laws it's that um that that particular law was well
justified um so i i think the the battle over these things should be a battle over justification not a battle over whether people have rights i think people do have rights to contract and economic rights and so forth as you probably know for minor league baseball a lot of labor law just doesn't apply so people can work if works even the right word all sorts of crazy hours at very low pay and nothing from the state intervenes
it's considered partly an apprenticeship for many people yeah i don't i think there may be may will be context in which um we are willing to tolerate that as a as a society um but i i think it has to be contextual and this is this is partly a political conversation right so i might have my own views about this and others have their views and uh i think it's okay for those views to be worked out through politics through forms of dialogue maybe
you strike down something at the margins and you see how the state responds you see how people respond i think courts should be part of a broader political conversation about these balances of values that we all disagree about now you yourself emphasize that these partial rights they often conflict with each other sometimes by their very nature if i put on my henry sidwick philosopher hat and i ask what's the
ultimate moral standard you use as a moralist when rights conflict to arrive at a decision how do we solve the problem of pluralism is another way to put it morally what would your answer be well i think the most important value for an adjudicator of a case involving competing rights is humility and the recognition that that uh that the adjudicator doesn't have superior knowledge superior moral knowledge about the way of resolving
these kinds of conflicts these kinds of conflicts are political conflicts now at some at some level if we think the politics are acting in a perfectly sensible way then maybe there's not much of a role for the adjudicator maybe you just let politics work out work itself out in the way it it it should if we um if we think that there's something that politics is missing and and when i say we you know again i think
people are going to are going to have different views about this um if you think something's missing if you think that someone's not um fully taking account of the full dignity of someone if you think the government is um acting grossly disproportionately then that's those words you're using sensible grossly they're in a sense parasitic on some independent moral standards so i'm not suggesting you should be utilitarian but
if you said well i'm a utilitarian las ventham was that would answer the question how you reconcile the claims so if it's not utilitarianism then what what is it exactly well i i think it's i i i i hesitate to to to to label it um it's i i would say proportionality which means in this sense that um one als is constantly concerned with um uh and proportionality as to as to um a set of values that are embedded within the existing legal
tradition right so within our illegal tradition we value freedom of speech we value racial equality we value a certain degree of independence and autonomy and those are differently affected by different kinds of laws laws also protect some of those values right so it's a constant negotiation over and of course democracy is also a value right so there's there are multiple competing values i don't have a key
because the key presupposes some hierarchy between the values that i reject i think that the that in each individual case those values are going to be affected to different degrees and that's part of what the judge's job is is to figure out whether there is some um disproportionality in the way in which values that we all share are being respected but then how do you ever know if you're right i'm not sure at the margins there
are values we all share there's disagreement right uh proportionality is just saying there's some waiting scheme behind this all that we judge by some standard of whether we're offended but then that's getting back to what lies behind all that i don't see what the answer is well i don't think that i don't think there is an answer because i don't think that the question is whether we're right um i think the
question is whether we're managing disagreement um in a way that leads to social harmony and social cohesion right so uh the problem again is not a problem that some of us are getting rights wrong um the problem and you know you you want abortion rights i don't or vice versa you want um labor rights and i don't or vice versa and and one of us is right and one of us is wrong the problem is that we disagree and there is no uh nothing
with we don't agree on the way of resolving our disagreement um either the job of the judge under those circumstances is uh to manage disagreement it's to manage pluralism uh and uh and and that's that's not something that lends itself to to being right or wrong now you're one of the leaders on the facebook oversight board what is the optimal correlation between the content moderation policies of different social networks so some people
worry like oh it's okay if facebook takes someone off you know the platform net the company meta but facebook the page uh but if twitter and youtube do the same thing at the same time then people start getting worried so should individual social media companies consider the interdependencies here or just each act separately well i think it depends on the content so generally speaking yes um and i i won't i won't speak for the oversight
board and i'll just speak for my for myself generally speaking yes i do think that one should generally be concerned with uh whether the the market for users is a competitive market or not right so if facebook's the only game in town as it is in many countries um i'd be i think it's one is right to be more concerned about its concept moderation practices under those circumstances than under uh under circumstances of genuine
competition and so it would then follow that if all the companies are doing the same thing whether or not they're coordinating their behavior one should be more worried about that but it's hard to it's hard to to to be abstract about that because some content comes down because there's good reason to take it down facebook is a big player in the market you don't have to think it's either collusion or that facebook is a monopoly
but it's just like if one employer fires you a lot of others will be reluctant to hire you they'll think oh something went wrong so if facebook takes down a content poster then twitter and youtube must think well facebook looked into this facebook even has this oversight board right a lot of smart people on it a lot of diverse points of view shouldn't that make you much more reluctant to argue for something not
being on facebook well i don't i i'm skeptical that that's in fact how youtube and twitter behave um that they take things down because facebook takes something down but i'd also say look it's it's complicated um because i i there are things that come down because uh there are good reasons to take them down um and um and so yes as as i said i you know i think one should be concerned with market concentration and market power one
should be concerned if there is speech that um that should be proliferating but isn't one should be concerned that the decision makers are private actors right but um again one should also be concerned with the harms of certain kinds of speech and the ways in which those harms can be amplified in the social media context one should be concerned about uh about the the particular rights of the platform right these are private
companies but also have their own views about what their speech environment should be so there are a number of of other factors that count in addition to whether some particular piece of content should get spread now you've argued in the past that there's no constitutional right to privacy and i think i agree with everything you have written on the topic but if i introduce a new angle i'm wondering if i agree with you so right now facial and gait
surveillance are much more prominent than when you wrote your original articles and if someone said well i'm worried about facial and gait surveillance these are genuinely infringing upon a right to privacy in the literal sense of that term that's much more literal than the other contexts where the right to privacy has been invoked would you still say there's no right to privacy well i i don't think there's no right to
privacy so where i would um i've i think that the supreme court no longer grounds the sorts of things that we associate with the constitutional right to privacy in a right to privacy right so we think of that in terms of birth control and abortion rights and that is no longer the language and hasn't been for many many decades um hasn't been the language the court uses so i i mean there's no right to privacy in a descriptive sense
i do think privacy is an important value to people when it's being infringed by private actors there are other important values that are also relevant namely the the the economic rights of the private actors um if we're talking about government surveillance right i'd want to know why is the government surveilling what is the value that it's serving um is it um ham handed what are the what are the possibilities of abuse
could it could it achieve these objectives in some way that doesn't involve the privacy infringement so i think privacy is a right should be treated in the same way as other rights our final segment the jamal green production function what did you learn collecting insects with your dad in the backyard gosh i i don't i don't know where that came from um uh but i i don't it's true um uh but uh uh uh maybe nothing other than that i like
my dad um i think he's a good he's a good guy um uh uh it i think it showed something about my interest in taxonomy which uh i think is probably not unconnected to um later becoming a baseball reporter um as i became a kind of stat head in in high school and in college um so so there is probably a story to tell there intellectually the different parts of new york you lived in growing up how did that shape your views intellectually
you move from queens to park slope right so i was in brooklyn uh i was in brooklyn for all my childhood and park slope for part of it in a place called flatlands for the rest of it and um since adulthood i've basically lived in manhattan and you know one thing i'd say is just an appreciation for pluralism that is still a part of my work i think comes from you know going to school in the upper east side and and and laying my
laying my head you know an hour and a half away from that across lots of different communities lots of different neighborhoods and learning to just appreciate uh human diversity learning to get used to it the ways in which the my high school community was very different than my for my family and seeing the value in each of those communities i i think was a very important part of formulating my values so that i i could never
labor under the fiction that there is any one value that we all pursue your brother aside who is the best rapper of all time um the best rapper of all time um i well it depends if we're talking about lyrics or something else but i'll i'll go with black thought um who is probably who my brother would say as well who's the the lead rapper for the roots and what makes him especially interesting he's he's he's he's prolific um he's
extremely productive he's he's very smart he's not lazy in the way in which he constructs his uh his lyrics um and he's manages to be both musical um and a poet this is something that my brother has struggled with early in his career is that he he is a he's a poet um he's not a musician and he had to learn to be a musician and um trying to combine those things uh is a rare gift what was your favorite music
from your father's extensive music collection growing up a bit earlier so there's less rap in it proportionately yeah so my father's not a rap fan but he's he was a he was a big jazz fan um so you know coltrane uh miles davis uh were you know people he he grew up loving uh and um he also like was into sort of classic rock of his of his generation so you know your bob bob dylan your um uh your jimi hendrix uh the beatles
uh so you know nothing exotic but um but good music what is your oddest or most unusual effective work habit well i don't i don't know that um it's so unusual but certainly my most effective work habit is to is to use the entire day um to work so i i get a lot of work done late at night um most of my time during the day is spent teaching classes or meeting with students and all writing and reading and preparation
and everything is is much later and that means you know i'm not watching i don't know i don't watch television shows i um uh it's a really extended uh work day i i work during soccer practices um i i work sitting in the car um uh while my kids are doing something or other you know so i don't uh i don't segregate um times of the day where i can't work when you teach a law class what is it you feel that you do differently from
most of your colleagues what is special about taking a class with you well i teach constitutional law uh and i that's not the only thing i teach but it's it's one of the main things i teach and one thing that i try to communicate to students is that it's okay if they go into the class and then come out of it really jaded about constitutional law and its relationship to politics and i'm i'm very we're very open about
the challenge of trying to understand law as an autonomous discipline and sort of what are we doing here if we all know that there's a realist core to what courts are doing and i i i you know i don't know that
that's so unique to me but but we we it is a very self-conscious journey that we all take together to say is there a place you can arrive at where you're comfortable with what your role as a lawyer is and your what your role as a constitutional
lawyer is where what you know what you have to do is to learn a certain kind of language that is self-consciously you know that this is a deep not just a shallow fiction but a really deep fiction about how some change is made you're playing a certain role and you have to sort of justify that and figure out for yourself why that role is valuable to you last question you meet plenty of students and surely you wonder will they someday
become important producers of legal ideas as professors or as judges or in some other capacity and other than the usual hard work intelligence open-minded what is it you look for as a marker of their talent for the future well other than the usual i mean um but there's plenty of people who have the usual who don't do something important right there's some extra spark of something well i i think it's just a combination
of two things and they're they're not they're not unusual in the sense that it's some kind of esoteric thing it's um a combination of being genuinely a self-starter um and also being genuinely curious i mean curiosity goes hand in hand with a certain degree of humility not knowing that you're right about things and just wanting to know more and more and more at all times but also being someone who
seeks out ideas on their own who doesn't need someone to tell them something who sees who hears something and says oh that's interesting to me intrinsically i'd like to know more about that as opposed to wanting to know how it's instrumental to them getting to some other step jamal green thank you very much and again everyone here's jamal's book how rights went wrong why our obsession with rights is tearing america apart thank you you