 Good afternoon, and welcome to Think Tech Hawaii, our last Thursday session of the year. Not sure where we'll reverse during this. Glad you're joining us and welcome. And we have with us today from Charlottesville, Virginia, a retired university of Toledo School of Law, Professor Ben Davis, now teaching mostly online course for the University of Illinois School of Law in Chicago, right? And coming up, you're going to be teaching at Washington Lee next to you. Washington, right? Yeah, the strength, yeah. Great. Hey, noted scholar and Jeff Portnoy. In your partner at Cades, one of our most experienced and respected attorneys, constitutional and First Amendment scholar and commentator on various University of Hawaii sports events as part of his history as well. Yeah, Ben? Hey, are you glad to be coming out of 2021? Glad this year is ending, or what are your thoughts? Well, this year I was 65. And I'm just wanting to let you know that I am really happy 65 is over. It was a hell of a year with all the things that went on in it. So yeah, so I'm a little more hopeful than I was about how well maybe do well or do well in this pandemic. I saw a really interesting slide on Rachel Maddow last night where the studies had been done at the nursing home. And they showed the rates of increase in people getting infected looking back the past couple of months. And so at the top, it had the unvaccinated. And that was rising pretty rapidly last month or so. And then a little lower than that, they had the people who had had the two shots or the one shot day in J. And that was rising too. And then it had the people who had the booster. And the booster was right flat there around zero. This is coming out of research at nursing homes. Given all the horrendous things that I think they said that one out of every 100 Americans over 65 has died in this pandemic, it's really good news that those folks in those nursing homes, if they get booster, look like they won't be. The carnage won't be so bad, if I can say it like that. So that's one piece of optimism I have, actually. Well, I don't have any optimism. I think 2021 was a miserable year, not for me personally, but I think for the world and for the country, starting with what happened on January 6, and it hasn't gotten any better. And frankly, I think 2022 will be worse, not only with COVID, but politically. I think it's pretty clear that the Biden administration is stuck in the mud. It has accomplished virtually nothing. It's going to accomplish even less next year. None of its major legislation, other than the one compromise bill on bridges and tunnels, is going to get through. Voting rights are being eroded. The national voting rights bill today is dead because at least two Democratic senators are not going to move on the filibuster. Build Back Better is dead. So I'm sorry to be so pessimistic. And then in November of 2022, if things continue to go the way they are, rising inflation, more hatred, more Fox dribble, I don't see anything good coming up. We've got a lot of negative things to talk about all next year. Yeah. And with that, happy New Year. And Jeff, with all that positivism, I feel wonderful. I'm happy to hear, I see we drove away everybody else, by the way, for our last show. We'll blame it on Chuck. But I'm happy to hear any political, social, or economic reason you think we should have optimism on any of those fronts. All right. Well, I will start off with, I recognize that we don't know where it's going to go. But I do think this January 6th committee, feeling back the layers in a way. So what? But so what? Who cares? Yeah. Well, I think that. I mean, the third of the country can care less and don't believe anything that is allegedly coming out. And, you know, it's a nice exercise in Democratic PR. Where's it going? I think that that's the thing is I don't know where it's going. But what it's doing is just peeling back lives. And I think it's great to, you know, we've talked about having common facts at some point in time. I understand there are people who probably think everything's in a bubble and all that. But I still think that it's really interesting what they are doing step by step. So I have some optimism about that. We're at a minimum. There will be something that will lay out just how insidious this whole thing was or is that we've been living with January 6th and all that. We already know that. Yeah. But you and I may know it, but I'm not sure that. The rest of the third of the people could care less. The only good thing, by the way, now that I'm thinking about it is maybe we'll seek Trump's tax return. Well, what I see what makes me feel good is that, you know, they're like all these people were coming from that world, right? Who are apparently testifying and voluntarily. You know, people like the guys, the chief of staff for Penn, who was, you know, basically hung out to drive and these some of the organizers down on the mall part of it who felt like they got played. Okay. That is all good stuff in terms of bringing light. Okay. You may not think that it's much, but I think it's important that light is brought because no, you know, what we've been watching for the last month has been 11 months of a lot of people trying to say, don't look at that. Don't look at that. We don't want to hear about it. You know, and now it's started. You know, we get the, we get the emails from the folks to Fox. We get the emails from the members of Congress. We don't know who they are all that. So that's just a little thing. I think that bringing light is a positive thing for next year. Hey, Ben, you know what, you know what happens when you put a light on a cockroach? It just, it just moves to another location. Okay. I know, I know. But at least unless you step on it, unless you step on it, it continues to exist just in another location. Well, yes. In fact, it kind of warms my heart here to be reading about these people starting to talk about criminal prosecutions of Donald Trump, because I did some research on that kind of state or federal prosecutions of a president years ago on the torture stuff. And I'm listening to all these people talk about it, a former president. And it warms my heart to say, gee, I guess that research I did for Vince Boogli diossi back in 2009 or 10 might, you know, might be of use to somebody on my SSRN space, so, because we don't usually prosecute the folks at the top, right? And you got the folks that the, who went in, right, the low level folk, and they all get prosecuted. And it's like, what malfeasance at the bottom and dispeasance at the top, right? The stakes remain. Anyway, that's one thing I'm optimistic about. On the rest of the authoritarian, what is it the authoritarianization of the American community? Please always remember the wonderful lines from the book, Every Man Dies Alone, which is the main thing is, you fight that, okay? So you just keep fighting back. Personally, I'm more worried about all the billionaires and all that who are probably behind all this. That's what they like to treat people like the trash, people like trash, like they did those folks, where was it? Mayfield, Kentucky, who were at that candle plant, they were told they couldn't go home, or they'd lose their job. That's exportation work. That, you know, but that kind of stuff being brought out, it just out all four of them. And the violence against ordinary people that people are having to live with. And it's good that that comes out and good that their lawsuits are coming out to try to hold the, the people who do those kinds of good things to account. I mean, it's good management. Okay, okay, okay, Ben. You convinced me. I'm looking forward to next year. Oh, really? I can hardly wait. All these good things are happening and going to happen. I, you've made me so happy. I was so depressed before the show started. Oh, well, I'm touched that I played that role for you. And you should be, you should be touched. You know, I mean here I am wearing my Christmas Jerry Garcia T-shirt, which is saying have a Jerry Christmas. So, you know, you've got to have that attitude that it will get better. All right, Chuck. Back to you. Where might that come from? If there's going to be any shift or more positive direction. Hey, Jeff, you've raised questions about whether it's even possible. Then you've suggested that there may be areas where the light can shine. Where's, where's the energy? Where's the movement? Okay, I will start with this is where I think a really big coming from people who are 55 and older are quitting work. They're saying to hell with it with regards to this pandemic and number at rates that are incredible apparently four million a month or something like that. And it's, and so they all these companies and everything that are saying, oh, we can't find any workers. It's the folks who had the highest COVID risk are saying, yeah, we're not listening to this. We're going to, you know, if they've got enough money to pull it off. I know it's all that, but apparently the numbers are really substantial of the high of the higher end of the, of the scale of the age group retiring. Okay. So I think that that is tremendous because it is putting pressure on all these companies that are sitting here and saying, gee, why can't we get any workers? And they're not raising salaries or increasing health benefits at the same time. Right. So that's a piece of optimism I have is that there's a supply side issue of workers that is developed because a lot of of us older folks have been leaving and it's going to create opportunities for companies that want to take it to get more money into the pockets of people. All right. So let me see if I, let me see if I understand it. It's a good thing that the experienced workforce is quitting so that new people just had a high school and try to take their job. Is that it? All the 55s and over who have worked at a place for 30 years have the experience, the knowledge, the whatever are going to be replaced by a bunch of high school graduates. That's good. Yeah. Yeah. What I think is good is that those 55 and year olds and up aren't being fired. They're saying, see ya. No, I understand. Okay. Yeah. All right. How is that good for the economy? Well, the reason I think that that's good for the economy is that if you're going to get people in there to do the work that you want to do, you can't be playing the old game of paying people not much. And being, you know, there, I love these companies that are totally surprised they can't find any workers. And I'm like, well, you know, basic economics, right? Increase the pay, increase the benefits, you attract workers, right? And improve the way you work to attract the work. You know, I think that that's a positive thing. A second thing that I'm really positive about is I just saw something happen. It's a directive that is being proposed in the European Union about all these Uber type door dash kind of job things that people have, where all those people are being considered presumptive employees. And so as a consequence, the kind of protections that employees have will flow to all these people who essentially, I think, are being rude, if I could say by that, in these door dash or Uber situation that as kind of gig employees think like, I think this is the idea of creating the notion of presumptive employees is a revolutionary idea in the space we're living in. That is something that hopefully will migrate over here. I know we don't have the same kind of protections that the Europeans have. I'll make a disclosure before I tell you that I'm not sure that it's the greatest thing as you point out. I represent Lyft. Let me tell you, there are thousands of these Gib workers. The last thing they want to be as employees and all that goes with it negatively as well as positively. Work hours, work days, work rules, you name it. I interview a bunch of these drivers, believe me. Yes, there are some that want to be employees, but there are just as many who say no way. I want to be involved. I want to be an independent contractor. I'll drive when I want. I'll do everything else that I want to do. So this big thing about how these gig workers are being abused, they want to talk to all the gig workers. Yes, I know there's an organized movement, even in the United States, to unionize these workers or make them employees, but as you saw in California when they defeated a resolution to make them employees, there's a lot of gig workers who say I don't want it. I don't want the freedom of being an independent contractor. So it's not one-sided. No one says it's one-sided. What is it? It's 1973 with the decline of unions in the United States of America and all these people saying I want to be my independent stuff and independent contract and all that. And what has happened to the average wage rate across this country in terms of the growth and productivity and who gets the money and who actually got the raise and things like that? Yeah, I understand that lots of people think I want to be independent and all that stuff. Right. You know, because we've been, that's been beaten into our head. It's capitalism. It's capitalism. Yeah, that's right. Capitalism. But it used to be capitalism, including unions. Including, you know, you know, like how labor was or something, too. I'm playing doubles here. No way it was fun here. It's all right. There's a lot of reasons why unions have essentially gone away. Because workers don't want them. They don't want to be paying hundreds and thousands of dollars in dues. And there are some employers, there are some employers who treat their employees in a way that the employees have rejected unions. So I did read the other day, I did read the other day though, that after a decade of union membership, virtually evaporating, because unions have been worthless, there now seems to be a little bit of a renaissance in people looking for unions and wanting unions. So maybe that's for those people who are wrong union people. And I'm not arguing unions haven't done a lot of good. But, and I'm not on the factory line, but there are, you know, at least a significant number of people who don't either want or care for a union. Look, I understand. I know there are lots of people who want to think of themselves as if they're going to be, you know, working hard and they're going to get promoted and they're going to make it on their own and they get it all by themselves and all that stuff. I mean, the old American story, a million times over, right? Okay. And then what happened is that somewhere along the way it doesn't work out that way. And so the American ring of doing it on your own, all of a sudden comes crashing down on them. But there are people also who are working, you know, like two, three jobs at the same time trying to keep things going with both members of the family, as well as the kids doing it. And why are they working at this level? Because the pay, the pay, they need to keep the life going in a situation where the productivity gains aren't going to, you know, all I'm saying is that maybe some people get the idea, just a little bit of the idea, like those folks who just unionized at a Starbucks from Buffalo, New York, that, you know, maybe if we join together a little more in terms of us negotiating with management as opposed to the other way around about who I was as opposed to being just one on one, that, you know, it might work for you. Now, I'm going to fully stipulate that there are enormous amounts of money and sophisticated consultants and all that stuff who spend enormous amounts of money working for companies, pick your company name if they're doing it, did not have this happen. I mean, you have places, I think was it, was it Google where they are, or is it Amazon where they are like monitoring the phone of people to see if they're together, you know, and then they fire way earlier before you do a unionizing effort, right? You know, I mean, there's stuff that's done on the management side that is clearly about not, you know, maintaining control, right? Maintaining control and not having any other forces that operate. But I've got to tell you, having looked at one of my sons, Godmother is a lawyer in France who has brought cases on behalf of Union about warehouse workers in Amazon and about workers for the post office, that union power is something that could help keep people alive. Yeah, yeah, European economies are certainly booming. They're certainly a symbol. Germany, Britain, France, those are countries in turmoil that almost rival ours. I do agree with you, though, as you know, from all year. And I think it's a very bad thing, and I don't see any change. That's why I'm not optimistic. We have two societies and increasingly two societies in the United States. It's really a bad situation. So what the remedies are? All I can tell you is I don't see people more. The remedies are pay people more. Pay people more. Inflations at 6%. Yeah, yeah, that's because the people who are trying to keep their profit margins up, well, they have to pay people more. That's the inflation thing. That's the only thing. Oh, you socialist, you. Yeah, I know I'm a socialist because I'm just a market guy. All those 55-year-olds and I'll have less. God. We've given you all this space to the folks below us and aid to be able to equilibrium here so that they can get a new equilibrium so they can get paid better. They can have their more money to take care of their kids. You know, all that stuff. If that's socialism, then I'm like, you guys are on another planet than me. That's just business, you know. That's just business. Man, it's worn down. Man, it's worn me down. I just can't respond anymore. I'm just telling you, I mean, I'm probably the more hyper-capitalist of them all here, man. I'm like, maybe. You gave yourself away when you said you watched Racial Madame. Ah, is that what it was? Okay, all right, all right. I used to watch Hannity, okay? But it just doesn't beat too much, you know? Like all those guys leaving Fox now, it's like they can't take it anymore. It's just got to be too much propaganda. I would say that's an optimistic thing that Chris Wallace is going to CNN. I think that's really great. But leaving Fox, that's a bad sign. Yeah, I know. I think that the thing that I hear... All the adults are leaving the room. Right. Well, they say that the argument now is that they're respecting their audience, which, whatever that means. But, you know, meaning people, what is the term soma? They're speeding soma to people, right? Like in Brave New World. Keep everybody just sucking on that soma, you know? That's what I like about what's going on with this 1-6 to come around is, hey, you know, you may not read it, but it's coming out. It's all coming out. The great thing I just heard is, we talked about the file, the lawsuit against Pence. Somewhere about 10 days before January 5th. Trying to say Pence had the authority to, you know, throw out cast out votes. Was that Gomer file? Gomer file? Yeah, Gomer file from Texas. He did it, right? You know, if Mr. Gomer gets this idea off the top of his head one day, I'm going to do this. You know, you see the pieces come out. He's just, he's just representing his constituents. Of course. Of course. Of course. And you know, and it's just, you know, what is it, the money, what is it, representative Clyburn said, that money is the lifeblood of politics. So he's just representing some money that wanted to be a certain way. So maybe you folks, if you want to think about it, think clearly from what you've brought out, there are major changes in the composition and priorities of working conditions, the workplace. And there are major changes in the composition and the attitudes, values, priorities of the workforce. And those are major, major components. Of where voting shifts have traditionally been the difference maker. Yeah. Yeah. So maybe one of the things that we're perceiving is that there are areas of change which the media hasn't picked up on, analyzed, evaluated. And they're huge areas. And there are areas that directly connect to the working class, the middle and even lower middle working class. And these things could make a difference. And the factors you're talking about are people who are thinking about those factors because that's their lifeblood. Yeah. Yeah. So maybe there is, maybe the uncertainty itself is caused for some optimism because Jeff pointed out so well, articulately, it's the things that we know, the things that appear to be more predictable, more certain, that give us the greatest cause for pessimism. So maybe it's what we don't know, what we can't predict and the workplace and the working conditions and the workforce that may be the stage of change. I think it's about 2021, 22 in our last minute, Ben, any last words? I just think there's something about those 4 million people who are leaving the workforce each month right now, who are of this high end. That is a really fundamental trend that I think is part of it is a reflection. Also the people switching jobs so much. I think that people are sitting down after this, going through the pandemic so far and are saying what is going on in this life I'm living in this job and they're deciding that this is not me and they're moving to something else and I think that's a good thing and a positive. I started with my opinion and it hasn't changed. 2022 looks like a year that will make 2021 look like it was a good year. I don't see anything on the horizon politically, socially, economically and I think we're going to see the results of all of this pessimism in November and I think that will make us at least those of us on this show very sad when the Republicans very likely take over Washington except for the presidency and don't put Donald Trump aside. He's got more lives than Dionysus, who was it? Who is the great kind of? Right. You know? Right. He's not going anywhere. Unfortunately. You've got to be an optimist. All right. Thank you all. Thanks for a fantastic 2021. Maybe you'll know about 2022 that will keep us coming back and keep us doing our deep dives into this stuff. Folks, thanks for sticking with us. Come back and see us again in 2022. We'll be back and support think tech Hawaii. Thank you all. Bless you all. Take good care. Happy holidays. Happy holidays.