 Aloha. Thanks so much for joining us on Think Tech Hawaii. Time for responsible change. Another difficult conversation to make good trouble about law and social justice and whatever these wonderful panelists have on their mind that they're willing to share with us today. And we've got Tina Patterson in Maryland, where things are probably a bit warm, but hopefully you're in a nice cool spot. Mediator, arbitrator, business consultant, and experienced business professional. Ben Davis, adjunct professor at William and Lee, or is it Washington and Lee? Washington and Lee. Okay. George Washington would insist. Okay. Right. And Professor Emeritus from the University of Toledo School of Law and David Larson, immediate past chair of the American Bar Association, section of dispute resolution, and Mitchell Hamlin, law school professor, a man who almost single handedly brought online access to justice to the New York courts during the pandemic. So what a wonderful tool. Okay. Folks, the battle between rights and privileges. On the one hand, person number one saying, I'm not giving up any of my privilege. I don't care what you say your rights are. And on the other side, you've got person B saying, how can it be a right if it's not enforceable? And if it doesn't protect what it's intended to? Where are we on that scale? Rights versus privileges? Well, I think, I think historically in constitutional law, there's been something called the preferred position doctrine. And, and over time in different courts, not surprisingly, that preferred position doctrine has changed. And you look at the Warren court and it looks like, well, maybe civil rights and equal treatment kinds of things were preferred. And look at this court, it looks like maybe religion and freedom of speech are being preferred over. I think it's a, it's a doctrine that's controversial and very much open to manipulation. And I think it's susceptible to the criticism that it's whatever the current court is, they can put whatever doctrine they believe by their own values as preferred, and then try and justify it under this, this supposed jurisprudential, jurisprudential approach. Yeah, I would, I would, I think someone was talking to me about something similar, but to this today, and they were referring to one of the Federalist Papers who said something about, you know, part of the role of the, of the government writ large, the courts, the legislature, and the executive, right, is to mediate these things within a society. I have my stuff. I don't want you to have any stuff. I don't have any stuff. I want some stuff. Okay, well, we're not going to go around and start shooting up each other, right? The idea is okay. Well, what do we do? We elect people who are supposed to help us to see, well, do we take some stuff from this person and give it to that person as part of the greater good, you know, the public goods? Here's a classic one, but education, let's take education, right? My kids are all grown up now, right? So therefore I have no interest in K through 12 schools, you know, well, I want to pay for that. Well, yeah, okay. But having an educated populace, the government could say, you know, we think we need to pay some taxes so we can pay for these schools for these kids, you know, and I'm like, that's part of what I got to do, you know, I don't get to just board my money for the time that I have kids in school, and then forget about everybody else. The other one I love is roads. There are lots of roads in America I will never travel on. Why should I pay taxes for those roads? I mean, there are roads everywhere in this country. There are probably roads all over Hawaii I will never ride on. Why should my federal taxes go to help with some, you know what I mean? That's like, well, you know, we kind of think that roads are good for everybody, you know what I mean? And so we don't want the Hawaiians to just have to pay for the roads in Hawaii, you know, or the Utahns just for the roads in Utah, you know, or the Minneapolis, Minnesota folks just in Minnesota. We, you know, we pitch in, so to speak. And that's how I kind of think about it is that, okay, so what is the government doing to mediate, right? Is it doing things to mediate or is it not? When there are these conflicts that are there? I don't know. That's sort of the paradigm I have in my head when I look at these things, you know. That's their job, you know, the government, that's their job to mediate our disputes. I mean, obviously, the local level, state and federal, there's different levels of mediation, right? But it's, you know, legislation or otherwise, it's to mediate those disputes in a way that meets the public good as defined, I know, in some way. So where are we on that scale between government branches that are causing an amplifying conflict or government branches that are mitigating and resolving conflict? Which end of the spectrum or where in the middle are we? Tina, thoughts? Sure. So none of the three branches are supporting resolution of conflict. There's conflict within each of the branches and amongst the branches, which is unfortunate. This is why we see organizations talking about term limits for the judiciary and wondering what's going to happen in the 2024 elections. We see candidates who are positioning themselves to run for president in 2024 talking about the issue of rights, whether it is individual rights or privilege. And that privilege seems to be the prevailing conversation. And then those who are talking about rights attempting to be silenced or supporting rights. And I think David took a, I agree with what he said. It's tricky, it's controversial, and it's problematic because now we're talking about, I want to get married, I go into a facility and the person can determine it for any reason that they will not accept the fact that I'm getting married. Is it because it's my partner is of another race? Is it because I'm from another state? What are the reasons? And it's difficult. And so I think all three branches, the executive branch is holding on by a threat. And many of us would look to the executive branch to be the leaders, but we now see this conversation specifically about diversity, equity, inclusion rights versus privilege. And it's all over the map. So I think all three branches are really on a slippery slope and watching closely to see who can really present itself or which branch can present itself as being rational and hate to say it, thinking critically about the impact. What is unfolding here amongst the three branches is not just having an impact locally within our public policy, but also internationally. And I guess I say that because I've been watching the NATO public forum for the past couple of days and how this, what's happening in the US is playing out globally, even when we talk about things such as climate change, you have the executive branch taking one position and then you have the legislative branch in a completely different state. And other regions are saying, what are you thinking about? What are you doing? So that's, that's a really valuable perspective. So who and what are the casualties of that slippery slope of that tilted imbalance between rights and privileges, conflicts, and solution? I think what one of the casualties is a loss of trust and a loss of belief in government. And, you know, what's the consequence of that? Well, the consequence of that is that I'm going to have to take matters into my own hands. And we're seeing that from example is January 6, where people tried to take things into their own hands. But it's happening that in all kinds of different ways where people are, they don't trust the courts and they're starting to engage in more kind of vigilante independent justice in their own minds. And that's, that's frightening creates a lot of unpredictability. And in a situation where guns outnumber persons in our country, that's that's very unsettling. Yeah, I want to jump on that point David said about gun. I mean, that is crazy in this country. And, you know, I'm hearing this kind of view, which is that the right to have a gun is means that in the United States, essentially, everybody we see in these mass murder, mass killings and all that stuff acts like the price we pay, you know, it's like you're how you have to pay your monthly insurance policy. So you have the right to ensure it was like all these debts are the price we pay for the freedom that comes to speak with the right to bear arms. And it's like almost a cost of doing business vision of having the right to bear arms in this country. I think it's very callous, but it's also a very, very disturbing aspect of what's going on. And it's been going on, I guess, for a long time. But I find it really disturbing the idea that we sort of get in order to what are the 300 mass shootings since the beginning of the year, you know, I mean, when you hear other countries talking back to what Tina was saying, what the world's looking at, you know, and they're looking at it and saying, you know, this isn't what the heck is this, you know, and it's kind of an attitude of, oh, we're just just the cost of doing business in the United States, you know, the people get to have their guns. I mean, I saw this guy who was eating a funnel cake on, I think it was at Atlantic City's beach. A seagull came along and tried to take his funnel cake. He pulls out his gun and he shoots the seagull. You know, I'm like, really? I mean, really? You're going to shoot a seagull because it tries to take your funnel I mean, it's a level of, you know, it just seems insane to me, you know, but let alone shoot people, you know, let alone shoot people, you know, but we seem to be enured to it or there's a beautiful speech that's done by a representative I think in Iowa I just saw where she is criticizing the people voting the six-week abortion ban. And, you know, it's basically saying, you know, she's saying things like, you know, if Jesus was feeding people, you would be knocking the leaves, loaves of bread out of their hand, you would be knocking the water out of their hand if Jesus was feeding people, and you would say, well, why are you entitled to that? Why, you know, I mean, it was really talking about some of the sort of hypocrisy of the voting that was there, you know, when there are these people that vote for health care for that mother, you know, things like that, or food or something like that, and they were, you know, covering the wreck themselves in Christian, and she went really far in a very frustrated way in basically calling out the hypocrisy of all these people who were sitting there trying to be so sanctimonious, and I think they were going to celebrate the signing of this in a church. And, you know, and she was like, how is this going to happen in a church? How are you going to, this vote that you're doing here, how are you going to celebrate at a church when what's Christian about anything that you're doing? I'll tell you, it was something, it was deep, it was deep. And, you know, those are the kind of things that, I don't know, for me, it's just, those are the bizarre ones that I don't have an answer to, but I find it very, very bizarre that it's where we're at in this country. Go ahead. Do you ask who we thought the victims were? Within this landscape? And so in the facilitation world, there's a, sometimes there's an exercise called flower power. And I'm going to say broadly that those who are the victims or who suffer based on what we're talking about are those who are considered not to be in power. People of color, those without education or formal level of education that would help them navigate, whether it's a state, local, federal level, those who don't have access to those power brokers, people of color, the neurodivergent, people who are members of the LDGT QIA community, anyone who is not considered or perceived to be in power suffers. It would end up being along the spectrum of those who would suffer as a result of this conflict between privilege and power. I gave the example earlier, getting married. We're not just talking about interracial, but same sex, and then we talk about the neurodivergent for those who are not considered to be able to care for themselves or people with disabilities. For the elderly, anyone who's not perceived to have power suffers, could suffer. I'm not going to say they are suffering, but could suffer. And access is an underlying factor here. I think if you don't know who to go to or who to ask or who to get the support from, it can mean the difference between accepting what's presented to you even though it's illegal and knowing that there's a course of action that you can take to either have your concern raised or to know that there's another option that's available to you. Well, and that calls to mind another spectrum here. In business, in politics, where decisions need to be made that affect multiple people or groups, risk benefit analysis is generally considered to be one of the linchpin steps involved. But Ben raised a good point. When you weigh the risk of loss of hundreds and hundreds of lives versus whether you can have a loaded, automatic assault weapon concealed or available to you in public, how does that pass risk benefit analysis? Are we getting to a point now where we're not balancing the interest anymore? It's just one against the other. And is pure win lose zero sum? Absolutely. It's pure win lose zero sum. I win, you lose. Well, you know, the trickiness of risk benefit analysis is you have to sign values. You know, so if you're going to balance two things, you got to put a value on it. And Chuck, as you said earlier, we have that we are in a position where for God knows what reason we have prioritized the value of having guns. And so since we have so much value on that, even though there might be something else that numerically seems stunning, we've put so much value on gun ownership that I think history will condemn this risk benefit analysis. But we have not valued the human lives adequately. You know, we've treated them like the like the seagull, you know, and you can shoot them when they come by, that's what you can do with human beings now. And, you know, you mentioned 300, it's well over 300 now, in terms of mass shootings, it's just, it's just soaring. But, but so it's not that I think the problem is that not that we're not doing risk benefit analysis is that, you know, we're not being critical enough about the values we're assigning to the two things we're balancing. And that's a cornerstone of doing a thorough risk benefit analysis. What David is describing and what we're seeing is that there's a bias. There's already a determination that some of the risk or some of the factors in that analysis are rated lower. And Ben, I'll pause because you were about to say. But I was just thinking that I never hear of any mass shootings in Hawaii. And I was just thinking, I mean, maybe I'm wrong, because I'm not local there, but there must be something you're doing right in Hawaii that allows that we don't hear about a, you know, happening in the rest of the country. And I don't know exactly what it is, but this is something that struck me, you know, I don't know, is there, I mean, are there mass shootings in Hawaii, Chuck? You know, I don't know. Well, years and years ago, we had a Xerox mass shooting by an employee with some mental health problems. And Tina's recent Think Tech episode on mental health and issues and concerns, and the need to address them much more early and comprehensively is an important one. But the other thing is culturally, we have so many different groups, and they're so mixed. Most people here are not a one single ethnicity or nationality or race or even color. My kids are Vietnamese American, my grandkids are Vietnamese American and Filipino and Hawaiian. And that's normal here. We have to get along because we are here and we are with each other. And so we have to either live with each other or get into the alternative, which is not attractive to us. And culturally, we have a fairly significant majority of Asian and Pacific Islander and Indigenous people. And the cultural orientation there is much more collaborative, cohesive, collective than it is individualistic, competitive, combative. So all those things factor in. But how do we move those sliding scales? How do we reduce the harmful tilt in those imbalances? Yeah, one been posed as a possible topic for today's discussion, the school integration work. And school integration is critical to social cohesion. I mean, that's how you create comfort between people who are different. It's spending time with each other. And there's been lots of psychological studies that have been done about the positive impact of school segregation, desegregation. And if you have segregation, for instance, white children then see the sunset, even if they don't can't articulate it, that it's not democratic, that it is racist. They feel that, even though maybe can't articulate it, and they grow up with that. And so what can we do about it? I don't think we need to remind ourselves that it wasn't that long ago that we had very advanced programs and Head Start, and we're working really hard on school integration that actually, when we can prove it with data, had very positive results for underrepresented and under included populations, that test scores and achievement gaps closed. But we only did it for about 15 years. And then we kind of abandoned it. And so I think one thing we can return to is recognizing, instead of condemning it, as we recently have done in a recent US Supreme Court decision, is recognizing some of the values of school integration that go way beyond the classroom and change people for a lifetime. You know, and you raise a really cogent point here, which is justice Powell in the majority decision or plurality decision in Bakke, the first major affirmative action enforcement case that has stressed not so much racial imbalance and rebalancing as the importance and value of diversity that universities, educational institutions, learning institutions have recognized that diversity has very large intrinsic value for the experience, its value and its impact, both in the institution and outside in the larger community. And there was literally no mention of that in Justice Roberts' opinion or in the Supreme Court discussion, except in the dissent, of course, of Justice Katanji Brown Jackson. So what does this mean for the value and importance of diversity, which has always been a central value for this country in our last minute or two? Well, I just last night was listening to a speaker from a group called Dunohar Medicine, who is all about the crisis in medicine for identity politics. And he's anti-wokism, anti-diversity, equity, inclusion, DEI, all this stuff. So I said, okay, he's here in Charlottesville, let me go see him. And I think you have to confront, and I'm going to say it with the word confront, the nonsense that is very well presented, okay? I mean, I ended up standing up in front of the guy and trying to school him on the stuff. But it's very slickly done. A lot of things I noticed are argued in terms of dichotomies. We have to, if we do this, we're going to lose that, you know, like that, that kind of thing. It's not like we can do, it's like everything's either or. So, but getting people to think it turns more of our old both and thing. In other words, we can do DEI over here, and we can also do increased funding for education over here. I mean, these things are not one or the other. I mean, it was literally, I mean, it was very bizarre listening to the guy because he was, it was all nonsense. I mean, it really was a lot of nonsense. And he's a doctor, okay? He's a doctor. So, you know, he was like, doctor, you know, but you're like, doctor, this is nonsense, man. You know, I mean, and that's what I told him. And and I was in the room, and you know, there was somebody who was saying that the solution to everything is school choice, right? You know, and I'm like, really? I mean, really? School choice? You know, the evidence against school choice is massive, but this is like what people believe, right? I don't know. You know, I just having to confront these things to the extent you can, wherever you're at. Not sure you can. Yeah, I agree 100% with that. One thing that I find disturbing is that when I watch news broadcasts and they just yesterday were, they showed Republican congressional representatives, I'm going after the FBI director and putting out insane accusations. I mean, they're just, they were ridiculous. And he was responding correctly. The crazy thing going now is that the Republicans are going after the FBI and every director of the FBI has always been a Republican. The current ones are Republican. They're going after the FBI. But if you see that on a news broadcast on a 30 minute news broadcast, they just show the person asking the question and asserting inaccuracies. And then they go on to the next story. And there's no, there's no response. So if you're watching Matt Getz and a string of people throwing out unsupportable accusations, you just go on to the next story. There's people who are questioning whether or not that might be true. And the way that those stories are presented in our media, without any kind of critical response, I think it's really problematic. Okay. And then our last minute, Tina, final thoughts. Keeping BEI diversity at the center is recalling the dignity more equitably. Oh, absolutely. And it's recognizing that each and every one of us wants to be treated with dignity. It's the cornerstone. The examples that both David and Ben have talked about, that person, and this is not about race. This is not about ethnicity. This is about the core of who that person is being recognized as they truly are. And recognizing what you're doing is harming this person. So can we go back to, I don't agree with you, but that doesn't mean I have to treat you with disrespect or in a way that's undignified. I think coming back to that will bring us back to upholding the diversity or recognizing the diversity that we so bravely and strongly fight for, both here and abroad. Each person can be their individual and show their diverse thoughts and perspectives and way of life. It's about the dignity. What a great way to wrap us up. Tina, Ben, David, thank you so much. Really valuable thoughts and insights. And not just interest oriented, but value oriented. Maybe that's the centering balancing factor that we need to reground and re-center in. Thank you all so much. Think Tech Hawaii. Thanks for joining us. We'll be back in a couple of weeks. Come back and see us. We welcome your thoughts, your questions, your insights. Take care and Aloha.