 Hello everyone and welcome back to Conversations with Tyler today. I'm here with Jamal Green 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 wish I could answer that question better than I can and part of part of it is I don't pay much attention to baseball anymore I do think that sometimes and I'm not I'm also not the best Law and economics reasoner, but I can try you know, I think sometimes baseballs And senses are misaligned Is as far as I can tell at least 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 doing exactly what Major League Baseball is doing which is having its audience get older and older and 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 took to your your old subscriber base in some sense and I Think the structure of baseball is not really well suited to the modern age And they should hold on as long as they can to the people who really care about it I don't think you're gonna like move second base a little bit or put in some robot arms 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 don't have I don't think baseball should have an exemption from antitrust law I You know, I don't know that I Suppose if it's less popular than it once was then there's Whatever 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 think as long as its limits are understood, it's not a problem Just as any other form of reasoning has its limits So I I think that when one understands it to be 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 What's the what's the right answer in this case when what I mean by that is that? It's perfectly sensible to say That the right answer to a legal question should be supplied by specified through Through through law and economics so long as you understand that other Other methods are also legitimate and you're actually trying to stake a claim within a conversation about method 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. What do you change? I think there's a small thing I would change and that's I would This is really sounds really small, but but it's such it seems so straightforward to me that law students shouldn't be buying their own textbooks Separate from you know, the ordinary expenses of what you pay a tuition fee 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 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 and And and it biases the market so that people who 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 out a 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 the 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 But I but I tend to think that just as other law school costs are not are not sort of A la carte. I think textbooks shouldn't be there How 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 I don't know that I would eliminate it entirely 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 Seems to be likely to be problematic. They're problematic problems on either end right if you if you get rid of tests like that then People who are very good at succeeding at things are going to succeed in other ways And so there there is a There is a certain transparency about the LSAT that that is that is that I think is maybe not something you'd want to fully eliminate But it does bother me that The your performance on a on a test on a you know, a three-hour test has Such a profound influence on which schools one is able to go to It it would surprise me if there are not better ways of doing it But 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 don't I mean that you know schools are Matt are trying to optimize for different things 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 right 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. Um, which isn't isn't just about A kind of abstract view of lawyerly quality Uh, so it just depends on what the 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 For a certain kind of professional diversity Uh, in addition to a kind of you know, tom cruise at the firm Kind of top-notch lawyer. So I I do think that the else that lsat predicts for a certain kind of lawyerly skill I don't I don't I don't doubt that but what I do doubt and I think this is true to To the internal policy choices of law schools that that that's not that's not the only thing they're trying to produce Should law reviews be edited by students? Yes, um I don't know good at it, right? I mean, what are the students now? They probably couldn't publish in those law reviews themselves I don't I think that there's some um Something to be said for peer review Um, uh of of which articles actually get selected And those are that's a different Function of law reviews selecting articles than than the editing process Where I actually think students on balance. They're not always good at it, of course but on balance they I think add a lot of value to the editing process and and Make sure that certain Uh Sir they fact check For example, which I think is we resist it because we think we know it all but But it's actually very valuable Um, I also think it's you know when you see uh a Some institution that seems to be inefficient, right? You have to think about What it's actually trying to produce 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 or uh, or 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 And then on the other end, right you have uh Not very Efficient gatekeepers you have lots and lots of law reviews 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 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 law reviews 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, I know you could you could you could do a version of that. I mean, I think 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 law review editor We mostly did that at Yale. Uh, and I think a number of law reviews. Um, try to do that. Um, sometimes again, it's hard to avoid but Uh, but that's the I think I think that's the right goal What is the question we should be asking supreme court nominees that we're not asking them now Well, you know, should is a funny word. I think in an ideal world 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'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 Asked them if those cases were correct 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 Seems to me to be profoundly undemocratic. Uh, and so Uh, so I would you know, I if I if I could for god and could control the process I would I would you know have a conversation about about the supreme court's docket 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 I mean, is that the whole point? Well, the confirmation process is not undemocratic, right? So The way in which they're so chosen is not undemocratic. They're 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 they're political appointees for a reason because they Um, 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 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 You know lawyers or or or not. Oh that too, of course is another question. Um You know, I think I don't I don't have an apiary Answered to that. I do think there's value in having people Who are who are lawyers? I actually I think I'm okay with mostly lawyers, but 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 is a terrific um supreme court justice Uh, 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 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 Uh other forms of decision-making, uh, 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 there haven't been any non-lawyers on the supreme court There have been people who didn't there have been people who didn't can be 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 who was 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 Asked good questions. Um, who are smart people who could figure it out But a lot of the court's docket is is quite technical 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 You know outside of the big ticket, you know, you're you're 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 I do think you need it's pretty hard to be a non-lawyer and decide a technical statutory interpretation case 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 Um, 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, um, 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, uh, and so or not or at least not uniquely suited or especially suited to people 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 in so far as Uh, I do think that the court plays a role that's different from other democratic institutions Um, 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 antitrust 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 um But again, it's an argument for having people with say business experience on the court Yeah, I think that's 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 already too specialized um in a technical legal sense I believe and I've said before and in writing that the court should 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 green, 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 think there are there are multiple cultural determinants I think our experience with race is maybe if I had to point to a single one it would be that in so far 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 and that association of rights with pathological governance is I think Leads to a certain kind of binary understanding of 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 what 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 or 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 19 the middle of the 20th century was quite different from Um, 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 As to americans. I think we're more classically liberal or liberal minded than Europeans say but I don't think that that's an obstacle to saying that you know, so Part of what I'm urging is a recognition that rights are rights rights pluralism is inseparable from pluralism Full stop, uh, right. So part of part of it is being accepting of pluralism in a way that I think It's right that part part. There's a part partly a culture of resistance of that but But I think that's I think that's destructive. I think 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. I say we've seen with the treatment of covet But you don't seem to go in that direction. Why not? Well, I'm not I I am sympathetic to federalism part of the reason 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 It doesn't need to be used in that way. Uh, and If if we're not identifying not recognizing 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. Um, 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 context and across geographic space What do you think of the critique made by many supply side progressives such as as recline? 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 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 is 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 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 And that's not what I mean What I mean is rights are not just about things that courts say right rights are are grounded in in political negotiation And I think the the number of sites where where that political negotiation is possible should be greater I think that that's 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 And anyone who wants to stop something speech grounded, let's say can invoke this absolute universal speech right I think that that's as destructive more destructive of Of government effectiveness. I think government effectiveness is itself Something that can and should be understood in rights terms So we have a right to democratic participation and to the fruit to those that participation to to To to bear fruit 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? that We There are a lot of different sites for politics right not not just in some legislature or some such it's What the call is is a call for there to be less trumps 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 You know, 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 see 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 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 Um, but you know other places that think about rights in much more flexible ways have perfectly good public infrastructure um, Canada Much of western europe, uh, for example Right, so I that that's 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 the I think the biggest potential problem is um is uh an inability of Courts and other and political actors further down in the system to know what their rights and obligations are right, so us Courts the us 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 so 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 but But I but I do think that you know that can upset expectations It can make it hard to plan right so I think 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 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 what what your friends are telling you about police officers is slightly different In so far one could have a one could have a deeply non legalistic culture In which the the correct advice is to not talk to police officers if those people are corrupt If those people are abusive And 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 Someone might be out to trick you and that might be a distrust mistrust of state power as you mentioned before Maybe it's a rational mistrust of state power But I don't know that that's about legalism which I which again, I think is a separate potential problem In that we tend to formulate our problems in legal terms as if the right way to solve them is to 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 Our problems in terms of just inherent in In again pluralism, which has to be solved through politics has to be solved through conversation But we still have all this whatever is upstream of the american law that the steep 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 policemen 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 skeptical of the of the cultural premise Or at least I think it requires more specification. I do think that americans have a history of being paranoid About various things But this idea that you know, there's something That that that state building In is is somehow un-american or something. Um, I just don't I don't buy it There are there were there was an inflection point. I think an important inflection point in the 1960s Around and around the response to the great society That I think one can't separate from race quite as cleanly as As one might might wish to That associates big government with With 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 That that we just have to accept that That that's just an inevitable feature of the american the american people that they can't we can't we can't That we that the solution to which is some kind of Deregulation it it I it's hard for me to draw a line from what I see as the problem to to that solution Let's 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 I think that a case we're 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 Providing more openness than the law to the disability claims Um requires people to be in some kind of registry or something of Disabilities that stigmatizing or something It's rights are for those who wish to exercise them Um, 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, uh, I'm not someone who believes that rights 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 the couple 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 one self as disabled Someone have a business having to make a reasonable accommodation Helps anyone regardless of um 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 are 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 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 way or another Well, that'd be a right that has partial recognition Well, I think if we're talking about um Individual claims, right? So you so Um, 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 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 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 the 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 I that I don't have that right um, that's costly to me, but um That's the 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 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 uh 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 And 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 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 uh, but I'd want to know, you know factually right so, uh, 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 But why isn't that just prima facie correct? Uh, I I don't I don't I wouldn't deny that that's prima facia 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 um, the government justifying When it regulates them, right? So I don't feel a need to Label that as a right and 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 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 there are There are some issues with a regime of that sort and As a as a u.s. Lawyer, you know people will throw, you know lockner versus new york At that at at that kind of a system But to my mind the problem in the lockner case, which is the same as legal case from 1905 about maximum hours law 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 from 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. I don't I think there may be may well be context in which We are willing to tolerate that as a as a society 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 sigwek 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 that 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, uh Fully taking account of the full dignity of someone if you think the government is acting grossly disproportionately Then that's when you step in 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 I spent them 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 hesitate to to Uh to label it. Um, it's I I would say proportionality which means in this sense that Um, one also is constantly concerned with um And proportionality as to as to A set of values that are Embedded within the existing legal tradition, right? So within our legal 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 Um, and of course democracy is 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 the judge's job is is to figure out Whether there is some 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 And I just 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 the the question Is whether we're right. Um, I think the question is whether we're managing disagreement In a way that leads to social harmony and social cohesion, right? So 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 Uh labor rights, 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 Nothing with we don't agree on the way of resolving our disagreement. Um, either The job of the judge under those circumstances is To manage disagreement is to manage pluralism and 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 not the company matter, but facebook the page 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 And I I won't I won't speak for the oversight board. 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 So if facebook's the only game in town as it is in many countries Um, I'd be I I think it's one is right to be more concerned about its content moderation practices under those circumstances that 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 to be abstract about that because some content comes down because there's good reason to take it down But 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'm skeptical that that's in fact how youtube and twitter behave That they take things down because facebook takes something down, but I'd also say look it's it's complicated. Um, because uh 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, 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 And 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 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, uh, 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, uh, 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 Hasn't been the language the court uses so I mean, there's no right to privacy and it's 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 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? Ham-handed, what are the what are the possibilities of abuse? 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 don't I don't know where that came from. Um, but 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 I think it Showed something about my interest in taxonomy, which I think is probably not unconnected to Later becoming a baseball reporter Um as I became a kind of stat head in in in high school and in college Um, so so there is a 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? So you moved from queens to park slope, right? So I was in brooklyn, uh, I was in brooklyn for all my childhood in park slope for part of it And a place called flatlands for the rest of it and um since adulthood. I've basically lived in Manhattan Um, and you know one thing I'd say is is just An appreciation for pluralism That is still a part of my work I think comes from you know going to school on 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. I'm learning to get used to it The ways in which the my high school community was very different than my from my family and seeing the value in each of those communities Uh, 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? The best rapper of all time I well depends on if we're talking about lyrics or something else, but I'll I'll go with black thought Who is probably who my brother would say as well was 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 his lyrics and he's manages to be both musical and 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 He's not a musician and he had to learn to be a musician and Trying to combine those things 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 proportionally. Yeah, so my father's not a rap fan He's he was a he was a big jazz fan. Um, so, you know Coltrane miles davis Were you know people he he grew up loving and He also was into sort of classic rock of his of his generation so you know, you're bob bob dillon your Jimi Hendrix the Beatles So, you know, nothing exotic but 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 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 As much later and that means, you know, I'm not watching. I don't know. I don't watch television shows. I It's a really extended Workday I I work during soccer practices. Um, I work sitting in the car 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 your 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 um, 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 a realist's core to what courts are doing And 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 um self-consciously you you know that this is a deep not just a shallow fiction but a really deep fiction About how um change is made you're playing a certain role And you have to sort of justify that 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 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 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 um 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 Um as opposed to I'm 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