 Thanks for joining us, Think Tech Hawaii rule of law in the new abnormal and today risks and challenges to equality rights under the law. We have with us Professor Emerita Bernadette Randall from the University of Dayton School of Law and leading scholar on race racism in the law has fantastic compilation at her website racism.org and David Larson professor at Mitchell Hammond School of Law in the Twin Cities in Saint Paul and the media past chair of the American Bar Association section of dispute resolution. And so we have to learn in faculty here able to talk to us about what's changing and what's at risk in driving toward more equality under the law. Professor Randall, you want to start us off? Well, I think one of I think Derek Bell, if you're where he's dean of Oregon Law School and one of the leading scholars on racism. In fact, I talked from his book and and he used to say that racism and equal inequality is a permanent feature of American society and that what we can do under the law is an occasionally make things a little better by things that we do. But the whole nature of how our society functions the two party system, the back and forth, the money in it, the ability to jury manager around race, the bill, I was just reading an amazing law review article that I posted on my website. And I, to me, it talked about one of the things a small thing that could be changed is getting rid of prison gerrymandering. What is prison gerrymandering? Prison gerrymandering is when the, based on the census rule, this is not the law, this is a, this is a regulatory rule. When the census count prisoners, they count them for the community the prison is in without regard to what community they came from. So what that does is because census is the basis for giving communities money and power, prisons give rural, small rural counties more money, more power than their census would be entitled to. And the, and they take that away from the communities that people come from because when people get paroled or serve their sentence, they don't stay in the rural community, they go back to the community or some similar community. So one of the things that could be done is to change that to say, look, unless a prisoner, for the purpose of the census, you will use the place where the person was arrested or better still ask the person who is a prisoner, what community they want to be counted for, and then count them for that community. That would impact significantly black and brown communities because black and brown people are disproportionately represented in prisons. And so all of those people who are being counted for rural communities would start being counted for communities where black and brown people live, and that would provide more money, more power. So that to me is a change in the wall that would provide more equity than current exists. Hey, David, what are some areas of concern for you that the law is moving in? One thing I'm concerned about is that, and we talked about this in some previous sessions about the politicization of the judiciary. And, you know, I think benches have always been human, and they have their own inclinations and prejudices and leanings, and they probably look for results that conform with those inclinations, but at least they would do it in a principle kind of way. They couldn't find at least a principle the rest upon. Then they'd say, okay, I've got to give it up. I can't push this any further, even though I want this result, I've got to let it go. I don't think we're there anymore. I think we're at a place now where, if this is the result I want, I don't care whether it's principled or not, or whether or not I can justify it in terms of precedent. I just want the result, and I am in a position where I can dictate that, so I'm going to do that. And that to me is extremely disturbing. You know, we've seen it in a lot of different areas, but I teach labor and employment law, and so I get into questions about final-binding mandatory arbitration and employment agreements, and if you look at the history of those agreements, the Supreme Court has swung in the direction that pretty much in every circumstance those agreements are going to be enforceable. Agreements where people say I will only take my grievances to arbitration, I waive my rights to go to court for any statutory claim, all my discrimination claims doesn't matter, I'm just going to go to arbitration. Courts have now consistently said that those are enforceable agreements, and that's because of the preemptive power of this federal statute, the Federal Arbitration Act. Well, that's pretty contrary to what the same justices do frequently when they turn to this doctrine of federalism, and they say that, well, the federal government can't regulate gods, and they can't regulate abortion, and they can't do these things, and that should be for the states. The states should be able to regulate those things. So you've got this situation now when we're talking about arbitration and it affects millions of people, have these clauses in their contracts, where we're going to say that states who have been trying now for several decades to protect their citizens from what they believe are adhesive, overreaching arbitration agreements by putting limitations on those, the court has consistently struck them down, saying that, well, the Federal Arbitration Act is a national statute and that should control and we should be uniform. But in other areas, when the federal government has tried to regulate, they've stepped forward pretty consistently and said that these are things that states should determine, and we are invoking these principles of federalism and respect for states' rights. So right now, I think we've got a court that's very result-oriented that they're going to declare decisions that reach the result they desire in ways that are not particularly defensible and not principled. David, I guess my only thing is I have never felt the Supreme Court was principled. Well, yeah, I think it's a question. And the whole concept of star decisis was only used when it supported an outcome they wanted. And when it didn't, they ignored it. I agree. That's why I was saying that I think benches and judges have always had those inclinations. But at least, and I may be wrong, but my sense was at least at some point, there was a respect that I've got to make the sound principled if nothing else. I've got to get something to rest it on other than the result. And I think right now, I'm feeling that we've sort of abandoned that. And now it's just you should embrace this because this is a result that all of us should want. This is a good result. So it doesn't matter how we got here. It's just this is the right result. And that's what our obligation and responsibility is to do. To do the, to just achieve what we think is the right result. And you should think that too. But don't, I guess I, I, I agree that that I, I guess I'm wondering, let me say it over. I'm wondering if the problem is for many areas that are not related to race, that it appears principled. And so for it to not for, for, for them to, because I, my view in reading race cases for the last 40 years is they did what they wanted. And they ignored, you know, principles to get the result that they wanted. And the result that they often wanted was to be colorblind. And so they would, that print, they would promote that principle even when the principle didn't, was not logical, was not something that would be defensible. And so I guess I wonder, I guess I wonder if the problem is this, the courts have been able to get away with appearing principle because they use these principles that people agreed with, the already sizes, all of these things. But because many people weren't reading race-based cases, they weren't seeing that the court wasn't using the same logic or our, our principle thing when, when they wanted to deal with race and racism and especially in terms of discrimination against Black and brown and Native people and Asian people. So I don't know. I, I, I agree that this court has a particular outcome at once, but then so did Brown versus the court of education. And so did Dred Scott. And, you know, you just, they had a particular outcome and they twisted themselves to get there. Well, the, you know, I'm never going to pretend that judges and courts don't try and conform the result to their personal inclinations. That's always happened. I just have the sense that, and maybe we are uncomfortable with the principles that they were relying upon, but it seems now that they're not even attempting to cover that now it's just like we know it's best and we think you're probably going to agree with us. So we're going to decide this, this way. Maybe in the long term, in the, in a, I don't know, I don't want to say longer, make that might be better for us to mobilize because one of the things that one of the things that I feel like it's like, okay, in down south, when you confront racism, the racism can be very overt and in your face, but you know what happens and no one disagrees with it's happening. You go up north and people want to smile and be nice and say nice things and then stab you in the back. And then when you complain about it, it would be, well, what do you, I'm nice. I'm, I'm not calling your names. I'm not a racist. Maybe the court deciding because if they're making decisions over the last 50 years, which they have been doing, they've been eating away at abortion, they've been eating away at the whole arbitration thing, they've been doing that. And by folding it in some kind of false logic, people, the public has sit back and say, oh, well, you know, I may not agree with them, but at least I can see their logic. Maybe this could be a good thing that people will be so upset over the lack of logic, the lack of hiding what they're doing, that there may be, I don't know, there may be a uprising. Yeah, well, you know, and that getting back to the arbitration world. At one point, we'll call versus swan, we go back into the middle of the 20th century, and the court said that I don't think public law should go to arbitration. There are interests here that need to have the light of day shown upon them. We need to know what's happening. This has to go to court. Those are fundamental rights. And no, you can't compel people to waive their rights go to court. I think at that point, they sounded kind of principled. But then they started to favor the result, the pro business result of enforcing arbitration agreements and taking them out of court, and putting, you know, behind closed doors. So we don't know what's going to happen. We're not sure what damages are coming out. And so, this trend has begun began 1980, the 1980s, really, during the Reagan administration, it really took hold, where they started to really embrace the result and not do it in a principled way. I'm just thinking about this one particular area where you look at these decisions and you compare the language to what they did really relatively recently. And it's just contradictory. So this whole notion of states rights as being thrown out the door, and it's all about the preemptive effect of this big national statute. So I guess my concern is that to the degree that that's been going on for some decades now, and maybe always historically, it just seems to be getting worse. And, you know, getting worse in the sense that and maybe professors Randall's right, that's a good thing. It's like, just be open about it, that I'm not going to try to reconcile this on any principle. I just want the result. I'm now being honest for the first time ever. Maybe that's a good thing. But to the degree that certain people have a lot of power and power that affects the lives of millions of people, the fact that they're honest about their abuse of power doesn't make me feel better. It doesn't. I can understand why you wouldn't feel better. I don't feel better about it either, but I feel more empowered. I feel more empowered when people are straight up and honest about what they're doing. And because I feel like I can deal with that. I can deal with the people and I can organize people against it because they're not quoting the language in some hidden language that makes it look like that they're doing the right thing. But no, I can understand. I can understand, you know, it would be disconcerting to me if I had had, if for the last 50 years the Supreme Court has supported racial integration and then suddenly, and then they stop supporting it. But that's not what has been happening. And so my shock and awe over the Supreme Court happened a long time ago, but I understand. Except for the affirmative action, of course. And voting rights, both of which they have eroded at the expense of clearly people of color and minority group. They, they, the Supreme Court has eroded affirmative action and voting rights. And, but that is consistent with how they erode racial inequality. I mean, they're really, I mean, they're really, you know, for what we have focused on the voting right because it, it is put forth as a, a mechanism to level the playing field. If we all just get out and vote. And so they're, the Democrats have an interest in promoting and looking at voting rights. But it's voting rights, not the only thing that that's been eroded under Civil Rights Act of 1964. There is no language in that act that specifically define what discrimination, what racial discrimination is by court opinion. It was decided that discrimination had to be purposeful. So that's the first limitation put on by the Supreme Court of the United States. We have to have intentional conduct. Okay. First limitation. So then the regulatory agents, agency put forth regulations that would allow people to sue for disparate impact. And saying, saying, if you can prove a disparate impact, that's the same as proving purposeful. Okay. And so that kind of opened the door back up for it. And then the Supreme Court said, maybe little less than 30 years ago, you can, you can't sue for disparate impact. Disparate impact is a regulatory thing. And so the only people who can sue is the agency. If you feel like you have been discriminated based on disparate impact, all you can do is complain to the agency slamming the door on most forms of racial discrimination. And this is the thing that bothers me. I mean, lots of things bother me, but here's the thing that could have been fixed by legislation. No Congress taking it upon themselves to try to fix that, the Supreme Court decision. And I guess I want to ask you, is that the same true with the arbitration? Could some of these problems be fixed by legislation? Sure. Sure, they could. You know, there could be a clause. There's an act that's been introduced a number of times to put limitations on the ability to impose mandatory binding arbitration agreements. And the limitations have been in the employment area, in the civil rights area, and in the consumer area. And that's been kicking around now for about 15 years. And it gets introduced every year. And it just can't get through Congress. But that's an example where you could say, stop doing this. It's not going to be, these waivers are not going to be enforceable. We can allow business to business transactions enter into these kinds of agreements if they're comfortable doing it. But we don't want these power and balance situations to be subject to these adhesion contracts. So yeah, we could, but we haven't. Has any president put it on their agenda as a primary item to deal with? No, not that I'm aware of. I don't know any president that's come forward and say, this is a top of my agenda. I don't know that anyone has. And this is the complaint I have about our system. All three are functioning to make sure that things don't operate for the average person, for you and your area, for me and my area. Because the Supreme Court, almost everything the Supreme Court does can be fixed by legislation. And yet- I will add that this past year, we did get an amendment to the FAA that says for sexual harassment cases, we're not going to enforce these. So we had that little incremental step. Right. That's right. That's what it was. But I mean, that's an example of what could and should be done in a broader sense. And for that, for me, that's an example of Congress doesn't want to fix it. Because if they can recognize the need to fix it for a small area, they could be inching away at this one small area at a time. You can't arbitrate sexual harassment or just do that. But we have a very dysfunctional- legally, the system is dysfunctional because of the Supreme Court, because of the Court of Appeals, which I think we have to- we don't pay enough attention to the Court of Appeals. Because there's only so many cases that the Supreme Court can take up. And at the end of the day, most decisions are going to be governed by what circuit courts decide on the- on their appeal, because they're going to take many more. So we don't have that. We don't have a judiciary. We don't have a legislature. I'm not saying that right. And we don't have a president. If the president isn't, but you know, one time someone said to me- I was talking to someone about priority of eliminating racism, and they was like, oh yeah, it's a priority for me. I really think that we need to work on eliminating racism in legal education and stuff. I say, yeah, you do. I don't discount that. It's number 10 on your list, and you know you're only going to get the three things. So far as I'm concerned, it's not much of a priority. A president who doesn't come out and say that this is a priority is saying this is not a priority for them to put their weight behind, and then a legislature, you know, Congress that doesn't come behind it, and then of course the courts. I don't know. I don't know what- Yeah, well I think, yeah, I think that's right. Getting back to law school. My law school in this past year decided to declare we're an anti-racist law school with the understanding that that doesn't mean much of anything, unless we can actually start to spell out some concrete steps as what we're going to do to implement that declaration. So we actually are spending a lot of time thinking about what are some concrete demonstrable things we can do to demonstrate that we actually are an anti-racist law school. So I think, yeah, you do need that second step. It isn't enough to just say we're anti-racist end of the story. Or we want fair arbitration things. You've got to take those steps to do that. So great insight. Unfortunately we're out of time for today, but for the law school or for any other law schools, one of our panelists, Dean Danielle Conway of Dickinson Law at Penn State, they have one of the most sophisticated anti-racism programs for law schools in the country. Welcome getting in contact with her, getting the information on their program. But you're right, the role and responsibility that the framers intended to assign and impart to all three branches of government was a balancing of these competing interests and values that we know will always be part of our life. And that balancing responsibility has been ignored and eroded and fallen away. So thanks for great insights and perspectives. Folks, we join us in a couple of weeks. We'll be back with more current issues and topics. And so glad, Professor Randall, that you have so far survived things well in Orlando, Florida, and hope that the rest of the state will recover as soon as may be possible. Thank you. Thank you, sir. Take care.