The essence of the libertarian notion of aggression and self-ownership — see  On the Core Principles of Libertarian Property Rights. See, on this, the Roman law doctrine of “Corpore Corpori,” or “To the body”. AI summary:

In the context of Roman law, “corpore corpore” is a Latin phrase meaning “by the body to the body.” It refers to the requirement in the first chapter of the Lex Aquilia, a law dealing with damage to property, that the damage had to be inflicted by direct physical force. Specifically, the damage had to be caused by the wrongdoer’s body acting directly on the body of the injured thing.

[continue reading…]

Dear Professor Kinsella,

Many libertarians online have come to reject Hoppe’s net taxpayer model for public property because they believe co-ownership is impossible. I was skeptical of this and felt co-ownership was essential to libertarianism, so I started looking and found this passage in your book Legal Foundations of a Free Society [LFFS], page 158:

But if someone commits aggression, of course the victim now is a partial “owner” of the aggressor’s body, because he has a right to use force against it.

I formulated my own defense of this link between co-ownership and retaliation, debated it with a few people, and found it to be solid. But do you still believe this, and if so can you explain your reasoning? (Or have I misinterpreted?)

As for the detractors, their claim is that if co-owners disagree on the use of a property, one of them must win the conflict, and the winner is therefore the owner. What would you respond to that?

***

My reply:

Libertarians get hung on the weirdest things. For example they object to self-ownership, or body ownership, thinking it implies something mystical; it just means we oppose slavery. That each person is the owner of his body. That we oppose murder. Etc. Imagine libertarians objecting to self-ownership! ¹

And now some of them think that any stolen property is somehow unowned. Wrong. ²

Others object to wills because you are no longer alive at the moment of death. Another silly concern and argument. ³

Still others think co-ownership is impossible. For no reason at all.

Of course it’s not. Two people can have contract specifying joint ownership of a resource. From the point of view of the world, they own it together, an in rem property right good against the world; from each co-owner’s perspective, they can have a contract creating in personam contractually specified rights with respect to each other.

Hoppe gives one example of where co-ownership (of an easement, which may be thought of as a partial property right) can exist in “Of Common, Public, and Private Property and the Rationale for Total Privatization,” in The Great Fiction: Property, Economy, Society, and the Politics of Decline (Second Expanded Edition, Mises Institute, 2021) (see Part II, giving the example of villagers having an easement over a street).

So you can have co-ownership, of course. Often it’s contractual, as noted above. Spouses can own a home together. If I die and leave my home to my two children, they are co-owners of the home. Or 4 families have a time-share home. Two people renting an apartment have their own bedrooms but share the kitchen. And so on.

One way to look at it is that as between the two owners and the rest of the world, they are one unit. (Same with corporations, by the way, another thing libertards get confused about.) ⁴ And as between each other, a contract specifies their rights.

Something similar explains why contractual title transfer works. (See LFFS, ch. 9.) Suppose A owns Blackacre. This is an in rem property right, good against the world. Meaning: A’s permission is needed for any third party T to use Blackacre. Now suppose A sells Blackacre to B via contract. Now B can grant permission to T to use Blackacre, and A cannot object. So as to everyone in the world T (except for A), B is the owner, since all of them need B’s permission to use it—and can use it if B grants them permission. ⁵

Thus, B effectively has in rem rights in Blackacre. In effect, he stands in A’s shoes–like a form of subrogation (see e.g. La. Civ. Code arts. 1825 et pass.). In other words, A’s ownership cloaks B in the ownership authority of A so that he stands in A’s shoes and acts as the owner now, against the rest of the world T. Except as against A. But because A contractually transferred Blackacre to B, he is estopped from denying B is the owner and is contractually prohibited from preventing B from acting as owner. (See LFFS, ch. 9, Part III.A.)

If they cannot agree, the agreement may have dispute resolution procedures but in the end, the asset may have to be sold and the proceeds divided. In marriage the presumption is that they agree; the spouses are legally a unit. If they cannot, it probably implies the marriage is over and in the divorce, the matrimonial regime determines division of assets. If two children who inherit a home from a parent cannot agree how to use it, then they have to split it. For example La. Civ Code art 807:

Art. 807.  Right to partition; exclusion by agreement
No one may be compelled to hold a thing in indivision with another unless the contrary has been provided by law or juridical act.
Any co-owner has a right to demand partition of a thing held in indivision.

Now keep in mind that all rights are property rights, and all property rights are the right to the exclusive control (meaning: the right to exclude others) for a given scarce resource. Including bodies. The default principle is that each person is the owner of his body because he has direct control of it. (LFFS, ch. 4; ch. 9, Part III.B; also ch. 10.) But this right can be forfeited by committing an act of aggression. (LFFS, ch. 5, 9.) In effect this gives the victim a property right in the body of the aggressor. Since this is limited by considerations of proportionality (LFFS, ch. 5, Part IV.A), the victim does not have complete ownership over the aggressor’s body, meaning the victim and aggressor are in a sense co-owners over his body.

I don’t see what the problem is here. It is not “impossible.” And it is, in my view, justified—by the acts of aggression of the criminal. (See LFFS, ch. 2, n.17; ch. 9, Part III.B; ch. 10; and ch. 19, at n.81 and accompanying text.)

Update: See also this discussion with LiquidZulu:

 

1. See “Libertarians” Who Object to “Self-Ownership”; LFFS, ch. 4, n.1 and ch. 2, text at notes 12 and 13; also Libertarian Answer Man: Self-ownership for slaves and Crusoe; and Yiannopoulos on Accurate Analysis and the term “Property”; Mises distinguishing between juristic and economic categories of “ownership”. Against the Non-Aggression Principle and Self-Ownership? Run! [↩]
2. On “Unowned” State Property, Legal Positivism, Ownership vs. Possession,. [↩]
3. Libertarian Answer Man: The Efficacy of Wills. [↩]
4. Libertarian Answer Man: Legal Entities and Corporations in a Free Society;  Corporate Personhood, Limited Liability, and Double Taxation. [↩]
5. Assuming this use does not violate others’ rights; see LFFS, ch. 15, n.62 and Part IV.H et pass.; The Non-Aggression Principle as a Limit on Action, Not on Property Rights. [↩]

Related:

• On Coinbase, Bitcoin, Fractional-Reserve Banking, and Irregular Deposits
• Informal session: Roman Skaskiw (USA/Ukraine), An Introduction to Bitcoin

Most austro-libertarians are for sound money and for this reason are also pro-bitcoin (BTC), or at least are ambivalent and admit they do not fully understand it—such as Hoppe, who has features pro-bitcoin speakers at the PFS several times:

• PFP215 | Stephan Kinsella, Nobody Owns Bitcoin (PFS 2019)

Some others, especially initially, argued that it was “impossible” because bitcoin “violates the regression theorem” or something. Work in progress—

For arguments that Bitcoin can be money and does not violate the regression theorem:

• But see Robert P. Murphy, Bitcoin and the Theory of Money, Mises Wire (04/29/2020).

I’ve lost track of all those who made the argument that it is impossible for various reasons, but here are a few who have expressed skepticism:

• Frank Shostak, “What Is the Optimal Growth Rate for the Money Supply?“, Mises Wire (June 2, 2025)
• Michael S. Milano, “Privacy and Fungibility: The Forgotten Virtues of Sound Money,” Mises Wire (07/05/2025).

See:

• Epstein on Roman Law and Judicial Supremacy
• Examples of Libertarian Law vs. Louisiana vs. French vs. Common Law: Consideration and Formalities
• Preface and Acknowledgments to Legal Foundations of a Free Society
• Reading Suggestions for Prospective/New Law Students (Roman/Civil law focus)
• Legislation and the Discovery of Law in a Free Society

Law Talk with Epstein{
Less Sex, More Text: Law Talk’s 2025 Supreme Court Recap Jul 8, 2025 · 1h 10m 36s

IN PROGRESS…. ***

 

 

Joshua Getzler, “Richard Epstein, Strict Liability, and the History of Torts,” Journal of Tort Law 3(1) (January 2010), p. 1:

Amongst modern American jurists, perhaps only Epstein could seek lessons for common-law interpretation by looking at the Lex Aquilia of the 3rd Century BCE:

To see how the common law works, I will examine.. .not the common law or our own system, but the common law as it developed casuistically in Rome, where the rules of tort law were remarkably similar to our own. The historical remoteness of the Roman law system is, for these purposes, a point in favour of making the comparison. If the approach of Roman lawyers can survive the enormous transitions of space, time, and circumstance, as the Roman rules of tort have done, then there might be less than meets the eye to the frequent assertion that our common law rules are short term matters of convenience.

[quoting Richard A. Epstein, “A Common Lawyer Looks at Constitutional Interpretation,” 72 Boston U. L. Rev. 699, 704 (1992).

It is abundantly clear that Epstein acquired many of the tools to construct the
strict liability theory from his legal studies at Oxford in the mid-1960s, where he studied the traditional Roman-law and common-law syllabus with its strong
historical consciousness, alongside the new analytical jurisprudence then being
formulated by Herbert Hart, Tony Honoré, and their peers and students.6 So
Epstein’s Theory of Strict Liability straddles traditions: it is a classic of American legal analysis and at the same time a typically Oxonian contribution to jurisprudence. In his tort writings as in the rest of his lucid, learned and inventive work Epstein bridges the divide between the American and English common law worlds.7

6 Richard A. Epstein, The Modern Uses of Ancient Law, 48 S. CAROLINA L. REV. 243 (1997); Richard A. Epstein, The Not So Minimum Content of Natural Law, 25 OXF. J. OF LEG. STUD. 219 (2005). Epstein also traces his interest in constitutional protection of property to his time studying private law in Oxford; see his book SUPREME NEGLECT: HOW TO REVIVE CONSTITUTIONAL
RESPECT FOR PRIVATE PROPERTY Xv-Xvi (2008).
7 The links between American and British common lawyers were much stronger a century ago, as shown by David M. Rabban, From Maine to Maitland via America, 68 CAMB. L.J. 410 (2009). Today jurists like Jeremy Waldron, Ronald Dworkin and Richard Epstein who work effortlessly in both traditions are rare, and of this group Epstein is unique in his engagement with the case-law details of both legal cultures.

Transcript (cleaned up by Grok):

Law Talk: Supreme Court Cases Discussion

Host: Charles Cooke
Guests: Richard Epstein, John Yoo
Production: Civotas Institute at the University of Texas Austin

Introduction

Charles Cooke (0:00): Okay, welcome to Law Talk, now a production of the Civotas Institute at the University of Texas Austin. Welcome to… Well, do they need any introduction? They do not. Richard Epstein and John Yoo. I am Charles C. W. Cooke. And since we last did an episode, we had a whole host of huge Supreme Court cases. In fact, we had six in one day on the last day of the term. That was Friday, June 27th.

Trump v. Cassa: Nationwide Injunctions

Charles Cooke (0:42): The biggest case of the term, arguably the one we’re going to start with today, was Trump v. Cassa. Now this started life as a case about the 14th Amendment and birthright citizenship, but over time it morphed away from that and in fact the merits were not reached and became a case about the validity of nationwide injunctions. It was 6-3 and the usual suspects lined up in the usual positions. Now before we go to John and to Richard, I will tell you my big takeaway from this, which was that I was persuaded by the majority opinions that legally speaking, that is under the Judiciary Act, under the various statutes that have been passed since, in particular the Administrative Procedure Act, and under the Court’s inherent powers constitutionally, there is a limit on nationwide injunctions and that it is not acceptable for a random judge somewhere in the country to claim powers that he does not, per the Court, have. But here’s my worry. I worry that without Congress acting to take back power from the president, without the Supreme Court getting involved in big cases swiftly, and without Congress giving the lower courts some more guidance on when they ought to intervene, that this is going to empower the presidency and make it even more imperial. And as such, although I think that the dissents, which were at times quite silly, were wrong on the law and that the Court was obliged only to consider the law, the objections that were raised structurally or politically in the dissents were not without merit. It does seem to me to be a problem to have a system in which the lower courts are unable to issue nationwide injunctions and a presidency that is increasingly unbound, because you could end up with some serious harms as the cases make their way through the courts and up to the Supreme Court. And by the time the Supreme Court weighs in, a lot of damage could be done. So, I’ll start with you, John. To what extent do you agree with my position on this? And are my structural fears overblown?

John Yoo (3:42): As usual, Charlie, I agree with you about 75% of the way. The 25% is the fun part to talk about. And I’m so glad that you are willing to volunteer yourself as a second target at which Richard has to shoot, because as we keep moving, it’s a target-rich environment for him, but he can’t concentrate on more than one target at a time. So, you know, first I agree with you. In a way, it’s a technical issue of federal courts law. How far does the power of a court run in issuing a remedy? And I find that kind of boring. I think the answer is actually quite simple, which is that the Constitution says federal courts decide cases and controversies, and the cases or controversies are just the people who appear before you in the courtroom. And so that’s how far the judge’s power goes, is to the people who appear. But as you said though, it contains much more important structural issues about the Constitution, and of course it has the most immediate political effect of letting, of unleashing President Trump’s agenda from these nationwide injunctions and preventing any single district judge from stalling the federal government in its tracks. Although, as you said, Charlie, this means that the Supreme Court is going to have to intervene faster and earlier in cases like the birthright citizenship case or a lot of President Trump’s executive orders. But the really big structural issue, I think, is one that’s raised most sharply by Abraham Lincoln and Dred Scott. I don’t want to overclaim here, but remember that Abraham Lincoln was faced with this problem of a Supreme Court that believed in its own supremacy and thought that it should issue a decision, Dred Scott, that settled the rights of all freed or escaped slaves throughout the country. And remember Lincoln said, because, right, Lincoln’s a member, the leader of the Republican Party. Lincoln’s, the Republican Party is founded out of opposition to Dred Scott and rises to prominence and wins the 1860 election because it’s opposed to Dred Scott’s holding, which is that slavery cannot be stopped by Congress and the president or even the freed states. And Lincoln said this. He said, I will obey the last line of Dred Scott, which means Dred Scott himself has to be handed over back to his original owner. And then Lincoln says, “I have no obligation under the Constitution to obey that opinion.” And he says, “It’s an opinion of the Supreme Court, the logic of the Supreme Court, and apply to every other case in the country. All those other slave owners can sue by the millions to grab back freed slaves, but I’m not going to go out and find them and voluntarily hand them over.” That’s essentially the same position, I think, that President Trump and President Biden and all the other past presidents are taking. I will obey the order of the district judge, but as an independent branch of government with the right to interpret the Constitution, too, I don’t have to bend the knee to the Supreme Court’s interpretation everywhere else. And I think that’s the deeper structural decision that the Supreme Court made here in this Cassa case. But surely, before we go to Richard, surely the Supreme Court said that it has the capacity to issue nationwide injunctions. It does, but I don’t know whether a president doesn’t also have the authority to take. Now, Lincoln also said that you should only do this when the Supreme Court’s really wrong on an issue of major importance like slavery. And Lincoln also said, in general, I will obey the Supreme Court nationwide, because I think that’s their job and they might be better at it than me. But he also said we would be giving up our right to self-government if we let the Supreme Court decide finally for the whole country on the Constitution’s meaning.

Richard Epstein (7:39): Interesting. So Richard, how much of that do you agree with? Well, I’m trying to catch my breath, but go back from Dred Scott 100 years later to Brown v. Board of Education, and all of a sudden now the Court’s the good guy on segregation, not the bad guy. And the great question was whether or not you would say about Brown v. Board, it only applied to the parties that were there and that every other southern state was free to do what it wanted until they themselves were directly sued. And what we did is we had exactly the opposite result in a case called Cooper v. Aaron, which says when the Supreme Court talks, it’s going to be a form, not of judicial parity, which was what John was pushing, but rather a form of judicial supremacy, which was the way in which this thing started to work out, and I think, in effect, talking about a nationwide injunction is not the form you want in order to deal with that debate. I think that it is also the case that most of the people in this country have accepted the Cooper v. Aaron solution was done for about 1958 or so. And that that would be today the law of the land. Well, which do I believe? Well, let me put it this way. I believe that the branch which is correct ought to have the final say. The problem is we never agree as to which that branch turns out to be. And so in this particular case, I think that the word you used, Charles, to say we don’t want to allow some random judicial court to have the power over the case was wrong. The reason it’s wrong is that you use the word random. And when people are starting to bring suits with respect to these kinds of cases, the last thing that happens is that a plaintiff who has the choice of forum is going to randomly go into the telephone book and say, “Well, I think I’ll go to the central district of Idaho for this particular case.” There are huge strategic advantages to going to one place or the other, and that means that the plaintiff is going to have a huge advantage, which means that these nationwide injunctions are going to be skewed in one form or another, and so I think what happens is that the correct rule, which is the old English rule of equity, is that when you start to issue an injunction, you bind only the parties to the particular case, and you don’t bind third parties, and they will be bound, if at all, by a doctrine of precedent, which means that the case can be used elsewhere in the American system. If you do something in the Third Circuit, that’s not going to be binding on the judges in the Fourth Circuit. So that you’re going to have, essentially, the Supreme Court to resolve them. And the problem with John’s position is that if the Court itself does not have an authority to do this, and you have splits in the circuit, and you have a congressional ace in the hole or a presidential view, what’s going to happen next? And this is another problem we have. Donald Trump, as the president of the United States, has taken the single most aggressive position on the scope of executive power that I’ve ever seen anywhere. The most recent manifestation of that had to do with the TikTok case, where he said, “Well, Congress had passed a statute which surely relates to foreign commerce. But I’m the president, and I have exclusive control over foreign affairs, and so that statute is not binding on me.” Well, that’s a complete sort of revolution from taking place, and you have this inter-mural fight, and it seems to me that the only body that can resolve it is going to be the Supreme Court. It said some very silly things in some of the earlier cases, cut back on them in some later cases, but I’m afraid I still believe, unhappily, in the doctrine of judicial supremacy. Why is it an unhappy situation? Because it turns out, no matter where you put the ultimate power, there are going to be cases where you miserably reject the result. And so what you have to do is to project over the full range of cases to see which of these doctrines is going to be least harmful. And in doing that, I think I come up with the Supreme Court for one very simple reason. We’re not in England, where parliamentary supremacy is unchallenged because you have one guy doing it. In the United States, you have a presidential system, and you have a federalism system. And if it turns out that the courts cannot resolve these problems, the inter-branch disputes that you’re going to see are going to be, to my mind, extremely dangerous. So I think that I thought the decision was right. I would want to decide it on somewhat narrower grounds. Anytime one wants to talk about 18th-century equity principles, that’s the stuff that I was raised on when I was a student doing law in England back in the 1960s. And so I’m very glad to see that they, I think, got that one right. I also think they were right not to say boo about the substantive merits of this particular case, which is going to be a titanic battle come the fall.

Charles Cooke (12:26): Let’s talk about some of the exceptions. We’ve touched briefly on whether the Supreme Court is one, but it thinks it’s one. Kavanaugh made this clear. There were no objections to it. The Supreme Court certainly thinks that it can issue nationwide injunctions. There were two other big exceptions to this ruling. One is Rule 23 proceedings, which are class action suits. And Justice Alito wrote separately to say that he’s worried that what will happen now is every judge who wishes to issue a nationwide injunction will just satisfy Rule 23 prematurely. And the second exception was the Administrative Procedure Act, which contains provisions for nationwide injunctions. Now the implication here, made explicit, is that Congress can pass other exceptions. There is some disagreement on this, it seems, with Clarence Thomas and Neil Gorsuch both saying that there are limits on that. But that to one side, should Congress now step in and pass a set of rules for lower courts, laying out when and what circumstances they can issue nationwide injunctions? And is there a problem with doing that, as Thomas and Gorsuch have implied?

Richard Epstein (13:54): I’ll take that one on. I think, in effect, that rules with respect to class actions cannot be done to overcome any inherent jurisdictional limitations on the ability of the courts to decide cases. And if you tried to do this by saying the current rules on class action have four requirements for bringing cases together, and Congress decides to say that so long as you have a single common issue across these cases, you could bring a class action, I think that would be an unconstitutional circumvention of the basic prohibition that they have. And so I don’t believe that you could do it that way. As to the Administrative Procedure Act, I think it’s exactly the same kind of thing. This is an effort to try to organize the jurisdiction that Congress and the various courts have over the administrative state. And I do not think that you can pass something about the Administrative Procedure Act which essentially forces the court to take the kinds of issues which it’s not allowed to do. Remember Marbury v. Madison, although it was completely screwed up on the facts, did announce a principle that was correct. If there is no jurisdiction in a court to decide a particular case, Congress in many cases cannot cure that defect by announcing that the structural limitations no longer exist. So there’s a long dispute as to which cases you could add into the hopper and which ones you could take out. But in this particular case, if the sole purpose of using class actions or the APA is to essentially circumvent the nationwide injunction prohibition, I think that both those motions should fail.

John Yoo (15:31): I don’t think Congress needs to now. I think the courts got the right answer. I think you would only want Congress to pass a statute just to codify the result. I think I’m not so worried, maybe as Justice Alito was, that the class action lawsuits are going to be an easy exception, because, and look, undeniably, this decision expands the power of the presidency. And the president will be able to delay in court even longer any kind of injunction by fighting over whether the class has been properly, what we call, certified. You know, there are all these requirements under Rule 23, like common issue of law, numerosity. I don’t want to bore people with them unless you want to go to law school and sit through civil procedure again, but this just provides more issues for the executive branch to fight on and delay any kind of nationwide injunction. You’re, Charlie, you make a good point about the Administrative Procedure Act. I don’t find that also such a worry. I mean, I think if plaintiffs are going to go to Washington, D.C., and litigate this through the federal courts there, which specialize in administrative law under the APA, that’s the way it used to be, actually, until these nationwide injunctions started really appearing in the last decade. And a lot of decisions fall outside the APA. The APA doesn’t cover everything. The APA, you know, it basically regulates the use of delegated authority by the administrative agencies. It may not cover a lot of the discretionary decisions of the president. And so I would think we should let, we should see how things work out under the Cassa decision. I have, I personally think that, you know, five years from now, we’re not even going to be talking about this decision. It’ll be a footnote in federal court’s casebooks. What’s really important is, you know, the structural issues that we’ve been discussing, and then the political issue that it allows President Trump to go forward on his agenda. Agree with parts of it and disagree with parts of it, as we all do, but at least people voted for him. He’s putting this agenda into place. As you say, Charlie, it’s up to Congress to stop him, I think, more than the courts. And I think that’s really the bottom line message is that you shouldn’t rely on the courts to adjudicate everything that Trump is doing.

Richard Epstein (17:41): Yeah. Look, I wanted to take, again, part exception to that. Take the tariff case. John and I disagree on the merits, but I thought the case of the government was really weak. And so then the question is, you get a preliminary injunction, chiefly determined by the question of the substantial likelihood of success on appeal. And given, if you see today Trump reannounces the tariffs, the stock market goes down five or six hundred points in response to it. I thought that would be appropriate for a judicial decision to essentially enjoin that particular case, the tariff power of the president, until it’s resolved by the Supreme Court. And the quid pro quo is you bring it up as quickly as you can, because under these circumstances, now it’s the other way around. Since the president is not bound, he’s going to frolic as much as he possibly can, and it’s going to take, I guess, at least six to eight months before you can get any authoritative decision coming out of the Court. So if I were running this world, I would have essentially gone to the Supreme Court and asked them to reinstate the preliminary injunction, because I think the dangers of going ahead are much more dangerous in this novel area than waiting behind. So that’s another technique, I think, that has to be thrown into the mix.

Charles Cooke (18:54): I do think that there is a paradox here, practically speaking, and that is, if you look at, say, Biden’s repeated attempts to forgive student loans. Yes. The first one relied upon the Heroes Act. Biden said, “The Heroes Act allows me to forgive hundreds of billions of dollars of student loans, and I’m just going to do it.” And he started to do it, and the case went up and eventually hit the Supreme Court. Once that decision came down, Biden tried something else. Now, he wanted to convince the public that he was defying the Supreme Court. He kept saying, “The Supreme Court said that I couldn’t do this, but I’m doing it anyway.” That wasn’t quite true. He went through a different avenue, and that avenue involved the Administrative Procedure Act. There’s a paradox here, though, in that, under this ruling, practically speaking, the first avenue, that is, not using the Administrative Procedure Act, just doing it as a president, is going to be easier for presidents to get away with than running through all of the hoops, because the Court has said, I think correctly, that in that case, if you’re a lower court judge, you can’t issue a nationwide injunction, even if what the president’s doing is flagrantly illegal. But in the second case, where the APA is involved, you can. And I just worry, this isn’t a legal point, this is more of a structural point. I just worry that unless Congress gets its act together, we are going to see presidents doing crazy things for quite a long time before the courts get involved.

John Yoo (20:32): I think that’s right. It’s because, something I hope we’ll get to later in the podcast, it’s because Congress has delegated such enormous power to the president and to the agencies with almost no standards on how they use those powers, right? This is an invitation for exactly what you described, Charlie. And the harder thing, which I think we didn’t quite get to enough in the case, in both the Biden student loan case and then the early case against DACA, is that presidents can achieve a lot by not doing anything, by being passive. Biden essentially saying, “I’m just not going to collect loans.” President Obama is, “I’m not going to enforce the immigration laws.” That makes it even harder for the courts to force a president to do something. And as you say, so then it really is only up to Congress to fix the problem and go to the American people and say, “Support us in our efforts to get the executive to actually execute the laws.”

Richard Epstein (21:25): I think we can do something better than that, John. The proposition that I gave was that you do not have, in the original case, any authoritative decision, and so you do not allow a particular judge to make a particular judgment. But in this particular case, if Biden comes back where the Supreme Court has, in fact, issued a definitive ruling against him, and people now want to say that they could split a hair and get around it, I think it is now appropriate for a district court to say, “Look, what the president, look what the Supreme Court did on this at a nationwide level. We’re not doing this on our own authority. We’re doing it on the authority of the Supreme Court, and we’re going to stop him.” And at that particular point, you can say to the other side, okay, run up to the Supreme Court and see if they start to disagree with you. But when we start talking about equitable principles in the 19th and 18th-century variety, they were always flexible. They start off as presumptions. And we certainly have a very good reason for not allowing the random district court judge to make up his own mind. But it’s not a reason that’s available if all that random district court judge, sorry Charlie, is doing is enforcing a decree that was made and issued by the Supreme Court. So I would treat this as the son of a universal injunction and would enjoin it accordingly. So the equitable stuff, as I understand it, is completely different, and I think it’s important to note that in the original Constitution, when they said the Supreme Court shall have jurisdiction over all cases in law and equity, the words “and equity,” when added back into the Constitution, were a major revolution, because now it meant that a whole set of rules on the English side get brought in which are not normally there. They change everything from standing on down. And what happens is, you have to really understand how the flexible positions work, and I was raised in that particular system. Unlike John, I have the benefit of the curse of an English legal education at the beginning, and I think curse is what I call curse. No, no, it is, actually, it has been transformative. Everything from riparian rights under Roman law on forward. Having studied two legal systems is, I think, the single greatest advantage that I’ve ever had in legal education. And I was not aware, when I made that decision back in 1964, just how powerful a situation would turn out to be, ’cause here we are.

John Yoo (23:51): No, John, I think, but I do think that what you raised, Charlie, is a fair objection, but if you start looking at the way in which this thing goes, it’s clearly an effort at circumvention, and there’s already been an authoritative Supreme Court decision. So, I don’t think that the randomness is there. Indeed, I would think that every single judge, no matter where they are, would be duty-bound to say, you can’t run around a Supreme Court decision and hope that you can escape it when we’re around.

Charles Cooke (24:21): I’m going to be henceforth much more precise in my use of the word random, which I used to denote not a Supreme Court justice, but I should have been clearer.

United States v. Skrmetti: Transgender Treatment Ban

Charles Cooke (24:34): All right, speaking of precision in language, let’s move on to United States v. Skrmetti. This was another blockbuster case from the term that just finished. A potted history of it goes a bit like this. Tennessee passed a law that banned the prescription and use of puberty blockers and hormone therapy for the treatment of so-called gender dysphoria in minors. This law was challenged under the Equal Protection Clause of the 14th Amendment, and the Supreme Court ruled 6 to 3 that the ban was predicated on medical reasons and age and not on sex, that it therefore did not discriminate based on sex in violation of the 14th Amendment, and as a result only required rational basis review rather than heightened scrutiny, and then there were a bunch of concurrences that made various points. Justice Barrett, for example, said that transgender individuals are not a protected class per se, and therefore that, irrespective of whether or not this law is based on sex, there would be no other outcome for them but rational basis review as a result. Now, I, as an originalist, as a devotee of original public meaning, think that the Court got this one right. I do accept that it is really quite complicated trying to work out what is sex discrimination, what is related to sex, and what is not in these cases, when you have somebody who is making a claim based on their desire or belief that they are one sex and not the other. And it’s also complicated by the fact that Tennessee’s law was applicable only to people who wanted treatment for gender dysphoria, not who wanted medications to help them conform to the sex they were assigned at birth, as the phrase goes. But I think this was the correct decision. I don’t think the Equal Protection Clause of the 14th Amendment prohibits this sort of law. John, where are you at?

John Yoo (27:22): I think this is of a piece with the way the Court approached the Dobbs abortion question, basically deferring to the states to make decisions about what’s acceptable or unacceptable medical treatment, and in gender, in general, to allow the states to regulate with their police powers on any area where there’s no clear constitutional right that would preempt it. So I think, just like in Dobbs, the Court here said there’s no core constitutional right at issue here, and in this case, actually, conservatives, some conservatives, are upset with the Court here too, because the Court said we’re not going to say one way or the other whether there’s any constitutional group that we’re going to protect with heightened scrutiny for transgender people. And there are some conservatives who wanted the Court actually to say that, actually, these procedures should be completely banned by the Supreme Court. But instead, the Court said, in areas where there’s no clear constitutional right, then we’re going to allow the states, as we do on most other things, to decide for themselves the policy. I think that’s the right decision in terms of our federalism. I think another angle that hasn’t been played up as much in the commentary is that this decision also is an important nod to families. I notice that the law here at issue was to prevent transgender treatment of children. It doesn’t try to prevent adults from seeking these treatments. And I think, so I think it’s of a piece with other decisions this term that also expanded, I think, the right of families to control harmful things that happen to their children. Now, this is an interesting question for conservatives, because I think most Americans think that the protection of the family as an institution is an important state interest, maybe the most important state interest, but it’s not in the constitutional text. The constitutional text talks about the state, talks about individual rights. It doesn’t talk about the right of families, even though we all assume it must. And so, there are a series of decisions from the early 20th century where the Supreme Court creates a right of families under the Constitution. But I think this is a problem for conservatives who believe in the original understanding and don’t see anything in the text about this, right? But I think this has been, this term, if you want to talk about this case, and then ones we’re going to talk about later, about the LGBTQ books and schools, and about age verification for porn sites, this was the term where the family won and formed, shows that more than anything.

Richard Epstein (30:19): I think about this in a slightly different way. So, I’m going to take after Charlie again, which is my new habit. And if we try to go back to the original… Thank God that the pressure is off me at last. Well, you wait, John, you have your turn. What happens is the term about originalism in the 14th Amendment is very much tied up with the structural issues. And I think you could make a pretty strong argument that the 14th Amendment, all the citizenship stuff, was done under the Privileges or Immunities Clause, and that the Equal Protection and Due Process Clauses were only dealing with criminal prosecutions of one kind or another. So they would be utterly inapplicable to this case. To do that, you have to basically get rid of the amount of law that has taken place over the last 150 or 125 years. And nobody’s going to do that. So it is, but that doesn’t mean I don’t agree with that. Yes, I’m just, well, I know you don’t, but we could argue that some… No, I’m saying I have, I think the Privileges and Immunities case is a really strong one. So I just, to agree with Charlie on that. I’m just making clear that I agree with you that it’s probably not going to happen. But that doesn’t contradict my position. No, that is exactly, the Privileges and Immunities is the place where this ought to come. And I think that if you do it through that clause, it’s much more powerful than doing it through the Equal Protection Clause. And what we’re doing is we’re basically compensating for the very restrictive reading of Privileges or Immunities in the Slaughterhouse Case, which was decided in the early 1870s and basically gutted the original constitutional structure. But looking at Skrmetti, one of the things about it is the parental rights issue is simply not involved in this particular case, and that’s surely the much stronger claim, relationship to this, and both to Mahmoud. You could say that, look, I’m the parent of this case, I turn my children over to the state only for limited purposes, and unless I’m committing some form of abuse and neglect, which is a customary ground for intervention, you can’t touch me. But they didn’t do that, and so what happens is all the question of parental controls are out of it, and then you have to figure out whether or not the treatment given to one kid is not the same, and the Equal Protection argument, I think, falls on this simple proposition: everybody agrees that the disease, the treatments that you give to boys and to girls, are appropriate to their sex, and this is not a case in which we’re saying we’re going to prohibit this transformative surgery to girls and allow it to boys, it’s the same rule with respect to both of them. And if that’s the case, that both of them are prohibited from doing things that are medically destructive, the issue, it seems to me, is very clear, there’s no Equal Protection claim that arises out of these cases. And there is nothing more common, when you start looking at medicine, to have detailed restrictions imposed by the FDA on the particular terms and circumstances under which particular drugs can be used. And if you’re trying to bring somebody back to their original sex, help a boy grow or a girl grow, that’s very different from trying to do the other. Every recent medical discussion, including some that have been published quite recently, have all come up with the same conclusion: that the risk associated with these treatments is much greater than is commonly supposed, and that the justifications for them that have been given in the medical literature by the various transgender organizations are exceedingly weak. That was the result of the Cass Report in England, and there have been recent studies coming out of MIT saying exactly the same thing in the United States. And so, as far as I’m concerned, if what you’re doing here is you have a health and safety issue, what you do is you say, “Look, when you’re an adult and you can make these decisions on your own, and you’re going to have to go through a lot of fairly exhaustive decisions, but we’re not going to allow for an irreversible surgery there.” Now, this is clearly going to be the case if the parents are opposed to the surgery and the state wants to impose upon it. But I think it’s a hard case, but in most cases a credible case, to say it’s a form of abuse and neglect to subject the child to that kind of treatment, given the state of the medical knowledge. Now, if you go back to Skrmetti, the girl involved in the case, she did not want a sex change operation. A mother said, I want my daughter to be more of what she was. I can’t even figure out why that case is there, because I don’t think, since I read it several times, that I got the basic situation over. So, I think, in effect, this argument was easy. The hard arguments are going to come when the parental rights issues are there, and that’s what gets you into Mahmoud. And here, it seems to me, that John has got a point. The parental rights are going to be dominant in that particular case. And so now you have to ask, why are they going to be irrelevant in a case like this? And so, now, remember, many people in this issue actually believe that the state can kind of sequester students in some particular way. It’s not even clear that the real strong believers in this think that parents actually have a veto right over transgender surgery for their children, if they’re, say, 15, 16, or 17 years old. The case is easy. The other problem is extremely hard, and let me just give an analysis. If you’re trying to figure out in the law of torts, and in the basically in the regulation by zoning and so forth, what happens is, legal activities are things that you cannot stop. But if they’re nuisances, you can stop them. So, what’s the definition of a nuisance now becomes a constitutional issue. And it’s exactly the same thing. What’s the definition of abuse and neglect? If it turns out the term is very narrow, then the parent should have their way. If it’s somewhat broader, it goes the opposite way. And so, what happens is, these terms have never been subject to the kind of intense scrutiny that they’re going to get in the transgender context. And there’ll be a lot more litigation. So, I don’t think anybody should assume that the whole question is put to bed by this particular decision. I think it was the wrong issue to grant certiorari on. I think the parental rights issues are much stronger for the plaintiffs than are the Equal Protection issues.

Charles Cooke (36:18): All right. But let me push back on that a little bit. So, just a little bit. Let’s put to one side this question of parental rights. Given that neither case, neither Mahmoud nor the Skrmetti decision, were litigated on those grounds. Doesn’t the outcome of both these cases fit nicely with my view of the 14th Amendment? In other words, you have the Skrmetti case that is litigated on Equal Protection, but we can even pretend it was litigated on Privileges and Immunities, if we want, and you have the Mahmoud case, which was litigated on First Amendment grounds. Now, in one instance, Skrmetti, you have claims being made about constitutional rights which don’t exist. Either there is no Equal Protection claim, based on the Court’s ruling in Skrmetti, or, as you say, Richard, the Equal Protection jurisprudence over the last century and a half is just wrong, and instead the focus should have been on Privileges and Immunities. I don’t know what you would find within that clause, although I think that a lot more litigation should be brought on that, for example, in the McDonald case of 2010, I think that was a Privileges and Immunities case rather than the way that it was handled. With Mahmoud, you’ve got a First Amendment challenge, brought by… Yeah, but, Charles, it was brought by parents. It was brought by parents. But the point is that the Court looked at the question of whether or not public schools burdened parents’ religious exercise by providing no opportunity or notice for an opt-out. Obviously, the First Amendment exists, and even under a Privileges and Immunities reading of the Constitution and the 14th Amendment, the First Amendment would evidently exist in exactly the same way as it does now. So, there’s no contradiction here in the Court’s decision-making, right? Because I never said there was. Here’s how… Now, I was the one who raised this as a possible, not me. Not guilty.

John Yoo (38:18): Here’s a way to think of it. Suppose, in Skrmetti, the state had said, we are banning gender transition, right, it’s not just surgery, it’s also hormone blockers and so on, suppose the state just said, we’re banning all of those medical procedures for adults too, I think it’s a harder case. Does the state have the right to stop you from doing something you and your doctor believe would actually benefit you, but the state thinks it won’t? And then think about the Mahmoud, suppose, instead of this taking place in the classroom, and again, as you point out, Rachel, an opt-out under the Free Exercise Clause from these classes, suppose, instead, the state had said, we are putting these books in the public library, and we’re going to have publicly supported classes at the public library extolling the ideology of these books. I’m not so sure the Court strikes that down either. So, I think that’s why I think the family element, and the fact that it involves children, is so important to the way the Court decides it.

Charles Cooke (39:34): But there’s a lot more coercion involved in making children go to public school with truancy laws and such than there is with government subsidizing a public library, isn’t there?

Richard Epstein (39:40): Yes. But he was talking about a school library. Look, let’s go back to that issue. What happens is, if you go back to the first of these cases, called Tinker, you’re telling students that they have to go to a public school, and then somebody says, can you put any condition on that that you want, so they can’t wear this kind, that kind of hat or armband in protest of the Vietnam War, and the answer has always been, if you’re coercing them to come, there’s some limitations. Here’s the basic problem: suppose it turns out these parents, and remember, they were a very diverse group of parents, said, you are only giving this point of view, we want equal time, so that you express to the students who are not familiar with it what the Muslim, Jewish, and Christian traditions are about that subject, and you have to give them equal time, that would be regarded as a per se violation of the Free Exercise and the Establishment Clauses, both, in the situation. So, the reason why this case is so utterly treacherous is, one side says, we’re not bound by the religion clause, the other side is. So, you can never get an even debate between the two sides on that particular question. And so, just ask yourself, the school board is displaced. Montgomery County gets a new set of principles, and what they announce is they’re going to have every week a session about the religious beliefs of each of the particular stuff. You can’t even do that at a graduation ceremony, and you’re certainly not going to be allowed to do it for this Court here. So, if you can’t do the other side, there’s an utter lack of balance. And the parents here aren’t saying, please proselytize for us. They’re saying, this is just not an appropriate subject for kindergartners. And I think, in fact, that they’re dead right about that kind of issue. And Charlie, what you said is surely correct. Privileges or Immunities certainly included, if you go back to some of the definitions, the ability to raise your own children is one of the natural rights. I wrote this long article on that particular subject some time ago, and I think that that’s clearly the correct rule. And so, for example, if you have a child and you want to take them out and proselytize with them, can the state say, no, no, the child is not allowed to be out after 7:00? Well, in a case called Prince, back in the 1940s, they said you could do it. But I think today, those decisions which limit parental control or guardian control are much more suspect. But the basic asymmetry in this case, I think, is the hidden difficulty. Any one of these parents, if they tried to have their religious views expressed, couldn’t do it. Justice Sotomayor says, at least five times in the dissent, this is just mere exposure to this stuff. Well, that’s just wrong. It’s indoctrination, not exposure. But if it were mere exposure to religious liberties, you couldn’t bring them into the school under the separation doctrine. So, you never want to have a system where there are two competing ideologies, one of which is banned for constitutional reason, and the other is given free flow.

John Yoo (42:29): So, I thought the dissent was… Can I just say, I love the idea of Richard and his kid proselytizing people in the neighborhood about the virtues of Roman riparian law. This is what makes America so great.

Richard Epstein (42:42): Absolutely, John. And, in fact, we do that, because I’m sitting here looking over Long Island Sound. And the number of times that the riparian rights issue has come up is actually very, very large. Everybody teases me about Roman law, which I’m duly honored. And then, when you start seeing a lot of these cases, it turns out people go back and start talking about the Roman law principles. I would just hope you were as abused as much as a Jehovah’s Witness going… I won’t be, no, I mean, as I said, the single most distinctive feature of my warped, as you would say, my warped worldview, is I was trained first in the civil law and the old English systems before I studied modern American law, and it leaves a trace on you, it’s like baptism, right?

Free Speech Coalition v. Paxton: Age Verification for Pornography

Charles Cooke (43:27): All right, well, another case that intersects with children and adults and the Constitution was Free Speech Coalition v. Paxton. Now, in the last few years, a bunch of states, including Texas, which was involved in this case, have passed laws that require anyone who wishes to visit a pornography website on the internet to have their age verified. Now, this was litigated. There are a host of cases, most from the 1990s, on the internet, and then there are earlier cases, one famous from the ’60s, Ginsberg v. New York, on pornography. The basic contours of this case were that the plaintiffs, those who represented the pornography websites, suggested that the Texas law ought to be considered under strict scrutiny as a violation of the First Amendment. And Texas said, “No, no, no, no, no. It should be merely rational basis, because pornography on the internet is a different case than, say, viewpoint discrimination.” And the Court split the baby and said, “Nope, we’re going to apply intermediate scrutiny, and under intermediate scrutiny, Texas’s law survives and is not a violation.” Now, I have a few questions about this. I didn’t read anything in the majority opinion that I found particularly objectionable. I was slightly primed to, not because I have a problem with keeping children away from pornography, but because I think some of the designs of some of these laws are a problem for various internet technical reasons we don’t need to get into on a law talk podcast. But I read the majority opinion, and I thought, yeah, this mostly makes sense. But I did have a couple of questions. I wonder if either of you want to take on, or if you want to ignore them and talk about something else, that’s fine, too. Why doesn’t this fall under a viewpoint discrimination rubric? Why is this not treating a particular type of speech differently? Now, I accept the originalist argument that pornography is not the freedom of speech as originally defined, but the Supreme Court has historically included it in many cases, and no one really pushed back on this in this case. So, why doesn’t it have a viewpoint discrimination problem? And was intermediate scrutiny the right answer, or is that just sort of putting your thumb on the scales, as Justice Scalia used to argue? So, you can get to the conclusion you want.

Richard Epstein (46:22): You want, look, if you start with, I’ll take this one first. If you start with this situation, and you start going back to the originalist version, and they talked about freedom of speech, it was a code word which covered all sorts of things like music, art, politics, and the rest. But pornography was illegal in every state in the union, and there was no constitutional challenge to it. And so, at that particular point, if the conduct is illegal, it turns out it doesn’t get any kind of scrutiny under the First Amendment, and that was the origin, and then, slowly, what happens is we have these decisions on pornography and obscenity and so forth, and now it’s lifted a little bit, and you give them less scrutiny. So, the answer is one or the other. But I would not treat this as a pornography case. I would treat this, as John is going to tell me, rightly, I think, that it’s a parental rights case. Do you want your children to be able to watch pornography if their parents are against it? And I think the answer to that question is no. And so, therefore, trying to have an age verification is a respectable means of trying to enforce that particular situation. And I would think that that would even survive strict scrutiny, given the nature of the activities involved and so forth. And so, to give you another example, suppose it turns out what they said is, before you can listen to a presidential debate, you have to be 18 years of age. I think most of us would describe that as per se unconstitutional. So, you have to look at the history of the underlying substantive behavior to see that the First Amendment stuff is being responsive to that. So, I regard this as a perfectly sensible case. And when a case is perfectly sensible, I don’t like to find constitutional ways to override them, because I think public health, safety, and morals are the traditional police power justifications, are accurately called into play in this case.

John Yoo (48:17): Yeah. I think, Charlie, again, so, I would just say, think about what the Court would have done if this law were not targeted to protect children or to reinforce the rights of the family to protect children. Suppose it had been, you know, we want age verification for everyone who uses a pornography website, just ’cause we want to know what people’s ages are. Or suppose we said, you know, the government said, we don’t want old people. We want to protect the elderly from these dastardly websites. So, I think that, because it’s children. Yeah, yeah, oh yeah, Mrs. Epstein better be putting some kind of content blocker on your internet, your computer, Richard, if she hasn’t already. If she hasn’t already, tell her to call me, and I’ll tell her how to put one on. But, actually, no, she don’t get her involved in computer manipulation. She’s in rebellion. Actually, Charlie’s a computer genius. He can do it without you even knowing. Charlie, I will send my wife in contact with you. But I think Charlie’s right. Otherwise, there would be a very good content, you know, content, I’m sorry, content restriction case to be brought. And I think the other interesting thing here is, again, like, but the Court, you’re right, Charlie, the Court doesn’t really express it that way. They don’t bring forward the family rights thing, but I think it makes a big difference in the decision of the case, as Richard said, right, they look at the original understanding, and they decide obscenity is not really protected by the First Amendment. That’s actually an interesting direction about the Court on the First Amendment, because, generally, the Roberts Court, one of the things they agree on, is very robust protections for the free speech and the First Amendment in general. But I wonder if this is a sign that they’re going to start defining free speech as primarily political speech and start to reduce protections for things like obscenity, reduce protections for things which might not be at the core of the First Amendment, like, you know, pornography. I think that’s something that you could see, this Court’s sort of libertarian and conservative directions coming into conflict.

Charles Cooke (50:37): If you asked me, if I were all nine justices, this case would have been quite simple, because my conclusion would have been that, under an originalist reading of the First Amendment, pornography is not protected, and therefore there is no case before the Supreme Court, because there’s no claim. But, of course, they didn’t do that, and none of them said that. So, I think it’d be very interesting if they did. But I was surprised that even Justice Thomas didn’t make this point.

Richard Epstein (50:59): I think we have to talk a little bit about methodology and originalism. What happens is, originalism is great until it turns out that you get an unbroken line of decisions which essentially changes the direction and fabric of American law, at which point one tends to be a non-originalist. When we talked about all the stuff with the Equal Protection Clause being unrelated to criminal activities and so forth, that has been around as the dominant position since the 1880s or 1890s. And people like me and you, Charlie, are not going to be able to say, “Oh, no, it doesn’t apply there.” And, remember, no Privileges, Immunities. So, all of a sudden, you get the voting cases. Now, if you try to put the voting cases in under the 14th Amendment, what’s going to happen to them? Well, they’re going to die, because there’s a case called Minor v. Happersett, in which it was made manifestly clear by a unanimous Supreme Court that voting rights are not protected under the 14th Amendment. They are not an incident of citizenship. Well, that’s what happens if you want to go back to Privileges and Immunities. So, these guys are not going to do it. And I call this the prescriptive constitution. It’s based upon the same notion you have in Roman private law, which is, if you do a wrong thing for long enough, all of a sudden it becomes a right thing. And statutes of limitations, that’s totally wrong, Richard. That does not apply to constitutional interpretation. Take everything you like from the common law, Roman law, and say, there’s no adverse possession in the Constitution. Otherwise, segregation would have been constitutional.

John Yoo (52:16): No, no, no. You have to be much more careful about how it is that you do. Well, segregation went on for 60 years, and it was agreed on by all three branches. You can’t allow, like, practice to change constitutional…

Richard Epstein (52:34): I didn’t say that you could do it uniformly. I said, what happens is, some of these changes go on, and you accept them. Others, you want to reject them, and you have to explain. The question is, which one do you accept, and which one?

John Yoo (52:52): Well, I’ll give you an… I would say you don’t accept any of them. No, John, you don’t believe that any more than I do. I would give the original understanding primacy over incorrect subsequent interpretation.

Richard Epstein (53:06): Okay. So, there’s no jurisdiction in federal court over corporations.

John Yoo (53:13): I’ve always actually wondered why, whether the 14th Amendment does not apply to corporations. I don’t see why corporations should be considered individuals with constitutional… I mean, but I’m talking about…

Richard Epstein (53:20): Happy to get rid of that. No, the diversity jurisdiction. I’m just talking about why corporations aren’t individuals that have constitutional rights at all. So, they wouldn’t fall under it.

John Yoo (53:31): Even, I would make it even easier for you. The obscenity cases that we were talking about here, which is an interpretation of the First Amendment that goes back 50 or 60 years, would be no more difficult to overturn than was Roe.

Richard Epstein (53:43): I agree with that. Yeah, I mean, I think Roe is, of course, clearly and manifestly wrong. But one of the things about it, of course, if you overturn that, it leaves it to the states, and it was a disaster for the Republicans in doing so. But now, suppose what you wanted to do was to say, look, for the last hundred years, everybody got it wrong when they allowed corporations to sue in state court or in federal court, rather, and are we going to invalidate every one of the decisions that were made in these cases, on the ground that there was a want of jurisdiction, when it came…

John Yoo (54:12): They’re based on an incorrect interpretation, I agree, it’s very difficult, it’s impossible…

Richard Epstein (54:19): But, but, but, okay, but what we’re talking about here is whether or not that view could be given path dependency, practically overturned. We’re not talking about whether or not that has now made it what the Constitution means. And I think that that is a big distinction. I don’t think it makes it right. I don’t think it makes it the original meaning.

John Yoo (54:39): This is the same argument, Richard. Richard, this is the same argument that segregationists made. They said, segregation has become so hardwired into the southern political, legal, and cultural systems, that you can’t uproot it.

Richard Epstein (54:51): No, but your argument is, it’s just so hard to uproot something practically that we have to leave it in place. I didn’t say that every time there’s an established convention that’s for a long time, it’s got to be preserved. I said, whenever you have an established protection, you have to figure out whether it’s one that ought to be preserved or not. What’s the test that I would do? Well, how do you, your test? I’m going to give it to… No, it’s not. In the segregation cases, of course, what was going on was an abridgement of individual rights of a very strong nature. In the cases that I’m talking about, what you’re trying to do is to create a system in which a classical liberal model, which is the basic model of the time, is going to be preserved, because, I mean, if you’re going to do this, John, there are going to be no Article I courts. That’s a contradiction in terms.

John Yoo (55:36): But, agree with that, too. There shouldn’t be any Article I…

Richard Epstein (55:41): You know, all you’re doing is saying things that me and Charlie would like to happen, right? I mean, I know, you’re next, you’re going to say, oh, and you shouldn’t allow agencies to issue regulations raising taxes. I’m like, bring it, tell me something more that’s going to, so terrible, that’s going to happen.

John Yoo (55:58): I’m just telling you that, if you look at some of them, the point about regulations, of course, is, the non-delegation doctrine is very much a part of the traditional original Constitution situation. So, just to take one particular…

Richard Epstein (56:09): Can I just point out, though, Richard, that what you’re doing is, you’re saying, the precedents that I agree with, and the ones that I don’t agree with, are dictated by an external moral system that I have to the Constitution. I’m going to pick and choose.

John Yoo (56:23): No, ’cause you said, the ones, some are consistent with the classic liberal Constitution, and some are not consistent with the classic liberal Constitution. And it’s your view of what is the liberal, classic liberal Constitution?

Richard Epstein (56:35): No, John, it’s not that. It’s the view of everybody before me who’s passed on this issue for the past 150 years. That’s why it’s prescription. So, do we go back to the original view of the Electoral College, where it turns out they’re deliberative bodies and so forth? Well, we got past that in 18-something-or-other, and by 1950 was ratified. I’m not talking about Richard Epstein as being the sole protagonist on this. I’m talking about a very established, powerful tradition, shared by just about everybody.

John Yoo (57:04): Still, it’s still a moral view that it’s external to the text.

Charles Cooke (57:11): Don’t think, though, that acknowledging that some originalist ideas would be more difficult than others to put into action because time has passed, I don’t think that’s a criticism of originalism, so much as it’s an acceptance that we are imperfect, as…

Richard Epstein (57:23): No, it is a very important one, because it turns out, there are methodologies that have been used by everyone, not just me, which, essentially, when you have a deviation from the originalist position, which is baked into everything that happens thereafter, you don’t change it. So, how do you get to Article I courts? It’s because of the evolution of the customs party. And what happened is, around 1810 or 1812, instead of it being an internal position, they created an informal court. And then, when somebody says, “Oh, let’s get rid of that particular court,” what the Supreme Court did is, it fudged, and it says, for public rights, we don’t get, continue to lie about it, because the practical consequences were…

John Yoo (58:02): Look, this is the way every legal system has done, and so, go back to statutes of limitations, ours…

Richard Epstein (58:15): No, not on the statute of limitations, problem is very simple. You trespass on somebody. What has this got to do with that, is not…

John Yoo (58:20): This is my point. The problem with the way you’re doing this is, you are pulling these elements from other legal systems that are not constitutional, American constitutional. You’re saying, we should adapt them and throw them into the Constitution, ’cause that’s the way we should reason.

Richard Epstein (58:38): John, I’m not saying we should. I’m saying we have, and that everybody who was faced with the question of what you do, when they have to decide, stop it or not stop it, has not decided to stop it. So, today, in our kind of strange American Constitution, you could not get anybody to create an Article III court. All new courts that are going to be created are going to be Article I courts. It’s not because Richard Epstein said so. It’s because lifetime tenure became just such a very difficult problem that nobody wanted to do it, and we’ve done it for a long time. The Interstate Commerce Commission was surely illegal in some sense, back in 1887. But it doesn’t get challenged until 1935, you know, with Humphrey’s Executor. And nobody wanted to go back and say, every one of the subsequent statutes dealing with that topic are unconstitutional. You’re making it appear as though it’s Richard Epstein is describing himself. What Richard Epstein is trying to do is to describe the way the other decisions done. And the reason why Plessy never lasted is because it was thought to be antithetical by everybody to fundamental notions of individual rights. It wasn’t just Richard Epstein who wanted to say that. But diversity jurisdiction for corporations, come on. If you got rid of that, so forth, you can’t possibly want to do that. And nobody does. And we have the same problem, issue after issue.

Consumers’ Research v. FCC: Non-Delegation Doctrine

Charles Cooke (1:00:06): And what happened? Well, you know what? John Yoo thinks that we should move on to another case. Well, I think John is going to be wrong. Let’s put some meat on the bone with our final case. We can talk about Consumers’ Research v. Federal Communications Commission, which is, in some sense, absolutely relevant to what we were just discussing. So, the Telecommunications Act of 1996 contained permission for the FCC, the Federal Communications Commission, to administer a universal service program. And what that means, in practice, is that, if you pay a telephone bill in the U.S., you pay a small monthly fee on that bill, and that money goes into a pot, and the universal service fund, as it is called, is then used to give discounts and breaks and subsidies to people who don’t have much money, to expand infrastructure, connect hospitals, and so on and so forth. And the amount of money that’s collected now is enormous. I mean, it’s about 10 billion dollars a year. Now, the problem here, from the perspective of the plaintiffs in the case, and I must say, from my perspective as well, is that this fund is administered, and the money is raised into it, by a private organization, called the USAC, the Universal Service Administration Company. And the claim that was made is that Congress is raising funds, taxes, even, on Americans, well, without doing it directly. It’s handed over the responsibility to this organization, and this organization, in some cases, has handed that responsibility over to private entities. So, you have a delegation of a delegation, and the argument here was that Congress simply is not allowed to do that. That the taxing power is given to Congress, not to some, here’s the word again, random organization that is outside of the legislature. But the Court let it go. They said that Congress is in charge, because it made the delegation. It could pull back the delegation, or add guidance, or change the system at any point, and therefore, it’s fine. And Justice Gorsuch wrote a, I think it was 42-page, 36-page dissent, very long, which was very dear to my heart, in which he laid out the case. I think this should have gone the other way. I was not surprised, but I was very disappointed. Richard, why do you think, after all these years, this should have gone the other way?

Richard Epstein (1:03:00): Well, I mean, I thought you would, look, I mean, the original mistake was the Thomas mistake, when he said that you could have a taxing power that you give to some private party to levy. And I think that those cases, saying that you could do it to the FTC, and out of the money, was just wrong. Go back to the original delegation case, it was the Hampton case, and people forget what the delegation was in that case. It was a situation where you had a mechanical set of rules that allowed you to determine, with great deal of specificity, formulas for putting tariffs on different goods coming in from different countries. And that’s, essentially, if you don’t allow that form of delegation, then nothing could run. This goes back to the old post office case. Congress can set up a post office situation. Does it really have to specify, in the year 2000, where each particular post office is going to go in each city? No, you can delegate that out, subject to parameters. But, in this case, it’s just a huge slush of transfer of money from one group of individuals to another. And that’s so far removed from the kinds of technical issues that are before. There is no prescriptive constitution on this issue, because the worst of the cases came down two years ago. I can’t think of any case that was decided a hundred years ago, or more, in which the kinds of delegations that they’re talking about now are there. So, I think, in effect, the structural arguments that you make are correct, and that this is a case where the prescription is irrelevant. And so, the originalist arguments on non-delegation are there. And why are they important? For a very simple proposition: if A gives a body a delegation, the only permissible delegations, in my view, is that the recipient body has to have the same distribution of preferences as the body that gave the delegation, or otherwise, what delegation does, is it allows a majority to solidify its position through an agency, and to skew the balance that Congress gave. So, it’s a very powerful functional explanation for what you want. And so, this particular case, Gorsuch is, in fact, correct. So, the reason I’m an originalist on this case is, A, the structural arguments are really strong, and B, there’s no prescriptive arguments going against it, as there are in all the Article I jurisdiction cases.

John Yoo (1:05:22): Yeah, I agree with both of you. I think there is a non-delegation doctrine, and I think it would have been easy in this case to say, one of the things Congress can’t do is delegate the power to tax, and, you know, I always thought there were two powers, and I wonder what’ll happen next, that Congress can’t delegate: the power to tax, and the power to impose criminal punishments. So, I can’t think that the Court really is going to be this loose on delegation, given how, it’s maybe its primary, the primary legacy it will have historically, will be that it sought to bring the administrative state within the tripartite structure of our government, and not let it sit out there, uncontrolled. So, I think it’s really, I think what the Court did is, it took a breather. You know, there’s so many other issues that it’s been deciding these last few years, right? You look back at the string of conservative victories. You know, we’ve talked about Dobbs. You could talk about Bruen and gun rights. We talk about the expansion of religious liberties. We could talk about the expansion of presidential power. But I think this term, the Court, you know, was focusing on, again, on these cases, I think of as sort of pro-family. And they just wanted to call pause in its effort to bring the administrative state to heel. But I think they’re going to continue in the future. I don’t think these are going to be permanent or long-lasting decisions.

Richard Epstein (1:06:49): I think that I disagree with that. If you want to figure out the area of the most wretched Supreme Court jurisdiction, it’s all the cases that have to do with the internet, First Amendment, NetChoice in those cases. The Supreme Court has no idea of what’s going on in any of those cases. And I think what has happened is, when they don’t understand something, they think there’s no particular harm in doing it the way they’ve done it. And I think, in effect, that what you see here is a very instructive situation, in which the middle three have moved left, and they’re not going to move back right again. And so, I think, in effect, there’s a 6-3 Court on this issue, the opposite way.

Charles Cooke (1:07:34): Do you think, though, that if we had a non-delegation case, the facts of which were comprehensible to the justices, this would come out differently?

Richard Epstein (1:07:41): I don’t think these guys are interested in doing anything, any more than Scalia was interested in doing it with respect to the criminal justice system. I think they’ve thrown up their hands. I see five justices who said that they want to reinvigorate the non-delegation doctrine, just, they’re searching about for a test, and you think they…

John Yoo (1:07:58): No, no, no. I’m saying, they’re looking for… No, no, no. I’m saying, they’re looking for a legal test they can use to give the non-delegation doctrine more force than just the intelligible principle idea, which is…

Richard Epstein (1:08:11): Well, I gave you a principle, which is that delegation, essentially, has to make sure that the delegated body has the same set of preferences that the delegation… Maybe they’ll adopt that, although they might find that hard to do legally. It’s exactly the opposite, and, indeed, it was done in that particular fashion. I’ve spent a lot of time, they’re not adopting your test, but they, what they’re doing is, they’re not adopting any test, which will stop.

John Yoo (1:08:35): I know, for now, Richard, my point is, they’re not doing it now, but in a future case, they may well find a test they want to impose, and they can’t. They didn’t want to do it in this term.

Richard Epstein (1:08:47): Well, I just don’t believe they’re going to do it. I think, actually, this is Justice Roberts in his home base. This is what he believes. This is what he wants to happen. And so, unless he’s going to switch along, it’s going to be 6-3 all the way down. So, I mean, the Supreme Court, it does have the squishy Republican middle, essentially, is much more pro-redistribution through administrative action than otherwise. Justice Roberts had the perfect chance to do something with the NFIB case on some of these issues, about what counts as a state fund and so forth. And what he did is, he tortured a statute to bring it back to a congressional situation. I think he’s hardwired on this issue. He’s had this view since 2005. And you’re not going to persuade him on that, any more than you’re going to persuade me, John, on the prescriptive constitution.

Conclusion

Charles Cooke (1:09:39): All right. Well, next time on Law Talk, we will all once again try to persuade one another. We probably can’t persuade John Roberts, who may or may not listen. If he is listening, hello. But to the rest of you, we will say goodbye. Thank you so much for listening. Thank you to Richard Epstein. Thank you to John Yoo. I am Charles C. W. Cooke, the host. And this is a production of Civotas Institute at the University of Texas Austin.

 

ORIGINAL transcript (unedited) from Youtube:

Transcript

0:00
Okay,
0:09
welcome to Law Talk now a production of the Civotas Institute at the University
0:16
of Texas Austin. Welcome to Well, do they need any introduction? They do not.
0:23
Richard Epstein and John U. I am Charles C. W. Cook. And since we last did an
0:29
episode, we had a whole host of huge Supreme Court cases. In fact, we had six
0:35
in one day on the last day of the term. That was Friday, June 27th.
0:42
The biggest case of the term, arguably the one we’re going to start with today,
0:49
was Trump v. Casser, capitalized, Cassa. Now this started life as a case about
0:58
the 14th amendment and birthright citizenship but over time it morphed
1:04
away from that and in fact the merits were not reached and became a case about
1:10
the validity of nationwide injunctions.
1:16
It was 6-3 and the usual suspects lined up in the
1:22
usual positions. Now before we go to John and to Richard, I will tell you my
1:29
big takeaway from this which was that I was persuaded by the majority opinions
1:36
that legally speaking that is under the
1:42
judiciary act under the various statutes that have been passed since in
1:48
particular the administrative procedure act and under the court’s inherent powers constitute Institutionally,
1:55
there is a limit on nationwide injunctions and that it is not acceptable for a
2:04
random judge somewhere in the country to claim powers that he does not per the
2:12
court have. But here’s my worry. I worry that without
2:19
Congress acting to take back power from the president, without the Supreme Court
2:25
getting involved in big cases swiftly, and without Congress giving the lower
2:31
court some more guidance on when they ought to intervene,
2:38
that this is going to empower the presidency and make it even more
2:43
imperial. And as such, although I think that the dissents which were at sometimes quite silly
2:50
were wrong on the law and that the court was obliged only to consider the law.
2:56
The objections that were raised structurally or politically in the descents were not without merit. It does
3:04
seem to me to be a problem to have a system in which the lower courts are
3:10
unable to issue nationwide injunctions and a presidency that is increasingly
3:18
unbound because you could end up with some serious harms as the cases make
3:23
their way through the courts and up to the Supreme Court. And by the time the Supreme Court weighs in, a lot of damage
3:30
could be done. So, I’ll start with you, John. You to what extent do you agree
3:35
with my position on this? And are my structural fears overblown?
3:42
Uh, as usual, Charlie, I agree with you about 75% of the way. The 25% is the fun part to talk about.
3:49
And I’m so glad that you are willing to volunteer yourself as a second target at which Richard has to shoot because as we
3:56
keep moving, it’s a target-rich environment for him, but he can’t concentrate on more than one target at a
4:01
time. So Oh, you wait. So, you know, first I agree with you. In
4:07
a way, it’s a technical issue of federal courts law. Uh, how far does the power
4:13
of a court run in issuing a remedy? And I find that kind of uh boring. I think
4:19
the answer is actually quite simple uh which is that the constitution says federal courts decide cases and
4:26
controversies and the cases or controversy are just the people who appear before you in the courtroom. And
4:31
so that’s how far the judge’s power goes is to the people who appear. the but as
4:37
you said though it contains much more important structural uh issues about the
4:42
constitution and of course it has the most immediate political effect of letting of unleashing President Trump’s
4:48
agenda from these nationwide injunctions and preventing any single district judge
4:54
from stalling the federal government in its tracks. Although, as you said, Charlie, this means that the Supreme
5:00
Court is going to have to intervene faster and earlier uh in cases like the Birthright Citizenship case or a lot of
5:06
President Trump’s executive orders. But the really big uh structural issue, I
5:11
think, uh is one that’s raised most sharply by Abraham Lincoln and Dread
5:17
Scott. I don’t want to overclaim here, but remember that Abraham Lincoln was faced with this problem of a Supreme
5:24
Court that believed in its own supremacy and thought that it should issue a decision, DreadScott, that settled uh
5:31
the rights of all freed or escaped slaves throughout the country. And remember Lincoln said because right
5:38
Lincoln’s a member the lead of the leader of the Republican party. Lincoln’s the Republican party is founded out of opposition to Dread Scott
5:44
and rises to prominence and wins it 1860 election because it’s opposed to Dread
5:49
Scott’s holding which is that slavery cannot be stopped by Congress and the president or even the freed slates. And
5:56
Lincoln said this. He said uh I will obey the last line of Dread Scott which
6:02
means Dread Scott himself has to be handed over back to his original owner.
6:08
And then Lincoln says,”I have no obligation under the Constitution to obey that opinion.” And he says, “It’s
6:16
an opinion of the Supreme Court, the logic of the Supreme Court, and apply to every other case in the country. All
6:22
those other slave owners can sue by the millions to grab back freed slaves, but
6:28
I’m not going to go out and find them and voluntarily hand them over.” That’s essentially the same position I think
6:33
that tre President Trump and President Biden and all the other past presidents are taking. I will obey the order of the
6:40
district judge, but as a independent branch of government with the right to interpret the Constitution, too, I don’t
6:47
have to bend the knee to the Supreme Court’s interpretation everywhere else.
6:52
And I think that’s the deeper structural decision that the Supreme Court made here in this CASA case. But surely,
7:01
before we go to Richard, surely the Supreme Court said that it has the capacity to issue nationwide
7:06
injunctions. It does, but I don’t know whether a president doesn’t also have the
7:12
authority to ch take. Now, Lincoln also said that you should only do this when the Supreme Court’s really wrong on an
7:19
issue of major importance like slavery. And Lincoln also said in general I will obey the Supreme Court nationwide
7:26
because I think that’s their job and they might be better at it than me. But he also said we would be giving up our
7:32
right to self-government if we let the Supreme Court decide finally for the whole country on the Constitution’s uh
7:39
meaning. Interesting. So Richard, how much of that do you agree with? Well, I’m trying to cap my breath, but
7:46
go back from Dread Scott 100 years later at the Brown v. board of education and
7:51
all of a sudden now the court’s the good guy on segregation, not the bad guy. And the great question was whether or not uh
7:59
you would say about Brown v. Board, it only applied to the parties that were there and that every other southern
8:05
state was free to do what it wanted until they themselves were directly sued. And what we did is we had exactly
8:12
the opposite result in a case called Cooper and Aaron uh which says when the Supreme Court talks it’s going to be a
8:18
form not of judicial parody which was John was pushing but rather a form of judicial supremacy uh which was the way
8:25
in which this thing started to work out and I think in effect talking about a nationwide injunction is not the form
8:32
you want in order to deal with that debate. I think that it is also the case that uh uh most of the people in this
8:39
country have accepted the Cooper and Aaron solution was done for about 1958
8:44
or so. Uh and that that would be today the law of the land. Uh well, which do I
8:50
believe? Well, let me put it to this way. I believe that the branch which is correct ought to have the final say. The
8:56
problem is we never agree as to which that branch turns out to be. And so in this particular case, I think that the
9:02
word you used, Charles, to say we don’t want to allow some random judicial court to have the power over the case was
9:09
wrong. The reason it’s wrong is that you use the word random. And when people are starting to bring suits with respect to
9:15
these kinds of cases, the last thing that happens is that a plaintiff who has the choice of form is going to randomly
9:22
go into the telephone book and say, “Well, I think I’ll go to the central district of Idaho for this particular
9:27
case.” there huge strategic advantages to going to one place or the other and that means that the plaintiff is going
9:34
to have a huge advantage which means that these nationwide injunctions are going to be skewed in one form or
9:40
another and so I think what happens is that the correct rule which is the old English rule of equity is that when you
9:47
start to issue an injunction you bind only the parties to the particular case and you don’t bind third parties and
9:54
they will be bound if at all by a doctrine of precedent which means that the case can be used
9:59
elsewhere in the American system if you do something in the third circuit that’s
10:05
not going to be binding on the judges in the fourth circuit. Uh so that you’re going to have essentially the Supreme
10:10
Court to resolve them. And the problem with John’s position is that if the court himself does not have an authority
10:17
to do this and you have splits in the circuit and you have a congressional ace in the hole or a presidential view, uh
10:24
what’s going to happen next? And this is another problem we have. Um, Donald Trump as the president of the United
10:30
States has taken the single most aggressive position on the scope of uh, executive power that I’ve ever seen
10:37
anywhere. The most recent manifestation of that had to do with the Tik Tok case where he said, “Well, Congress had
10:43
passed a statute which surely relates to foreign commerce. Uh, but I’m the president and I have exclusive control
10:49
over foreign affairs and so that statute is not binding on me.” Well, that’s a complete sort of a revolution from
10:56
taking place and you have this intermural fight and it seems to me that the onlybody that can resolve it is
11:02
going to be the Supreme Court. Uh it said some very silly things in some of the earlier cases, cut back on them in
11:08
some later cases, but I’m afraid I I still believe unhappily in the doctrine
11:13
of judicial supremacy. Why is it an unhappy situation? Because it turns out
11:19
no matter where you put the ultimate power, they’re going to be cases where you miserably reject the result. And so
11:24
what you have to do is to project over the full range of cases to see which of these doctrines is going to be least
11:30
harmful. And in doing that, I think I come up with the Supreme Court uh for
11:35
one very simple reason. We’re not in England where parliamentary supremacy is unchallenged because you have one guy
11:42
doing it. In the United States, you have a presidential system and you have a federalism system. And if it turns out
11:47
that the courts cannot resolve these problems, the inter branch disputes that you’re going to see are going to be to
11:54
my mind extremely dangerous. So I think that I thought the decision was right. I
11:59
would want to decide it on somewhat narrower grounds. Anytime one wants to talk about 18th century equity
12:05
principles, that’s the stuff that I was raised on when I was a student doing law in England back in the 1960s. And so I’m
12:12
very glad to see that they I think got that one right. I also think they were right not to say boo about the
12:19
substantive merits of this particular case uh which is going to be a titanic battle uh come the fall. Let’s talk
12:26
about some of the exceptions. We’ve touched briefly on whether the Supreme Court is one but it thinks it’s won.
12:34
Kavanaaugh made this clear. There were no objections to it. The Supreme Court certainly thinks that it can issue
12:39
nationwide injunctions. There were two other big exceptions to this ruling. One
12:45
is rule 23 proceedings which are class action suits. And Justice Alito wrote
12:51
separately to say that he’s worried that what will happen now is every judge who wishes to issue a nationwide injunction
12:58
will just satisfy rule 23 prematurely. And the second exception was the
13:05
administrative procedure act which contains provisions for nationwide
13:10
injunctions. Now the implication here made explicit is that Congress can pass
13:17
other exceptions. There is some disagreement on this it seems with Clarence Thomas and Neil
13:26
Gorsuch both saying that there are limits on that. But that to one side,
13:32
should Congress now step in and pass a set of rules for lower courts laying out
13:41
when and what circumstances they can issue nationwide injunctions?
13:46
And is there a problem with doing that as Thomas and Gorsuch have implied?
13:54
I’ll take that one on. I think in effect that uh uh you rules with respect to
14:00
class actions cannot be done to overcome any inherent jurisdictional limitations
14:05
on the ability of the courts uh to decide cases. And if you tried to do
14:10
this by saying the current rules on class action have four requirements for bringing cases together and Congress
14:17
decides to say that so long as you have a single common issue across these cases, you could bring a class action. I
14:23
think that would be a unconstitutional circumvention of the basic prohibition that they have. And so I don’t believe
14:30
that you could do it that way. As to the administrative procedure act, I think it’s exactly the same kind of uh this is
14:36
an effort to try to organize the jurisdiction uh that Congress and the various courts have over the
14:43
administrative state. And I do not think that you can pass something about the administrative procedure act which
14:50
essentially forces the court to take the kinds of issues uh which it’s not allowed to do. Um remember Marberry and
14:57
Madison although it was completely screwed up on the facts did announce a principle that was correct. If there is
15:03
no jurisdiction in a court to decide a particular case uh Congress in many
15:08
cases cannot cure that defect by announcing that the structural limitations no longer exist. So there’s
15:13
a long dispute as to which cases you could add into the hop and which ones you could take out. But in this
15:19
particular case, if the sole purpose of using class actions of the APA is to
15:24
essentially circumvent the nationwide injunction prohibition, I think that both those motions should fail. John,
15:31
I don’t think Congress needs to now. I think the courts got the right answer. Uh I think you would only want Congress
15:37
to pass a statute just to codify the result. Uh I think I’m not so worried
15:43
maybe as Justice Clo was that the class action lawsuits are going to be an easy
15:48
exception because and look this undeniably this decision expands the power of the presidency. Uh and the
15:57
president will be able to delay in court even longer any kind of injunction by fighting over whether the class has been
16:04
properly what we call certified. You know, there are all these requirements under rule 23 there like common issue of
16:10
law, numerosity. I don’t want to bore people with them unless you want to go to law school and sit through civil
16:15
procedure again, but this this just provides more issues for the executive
16:21
branch to fight on and delay any kind of nationwide injunction. Uh you’re
16:26
Charlie, you make a good point about the administrative procedure act. I I don’t find that also such a worry. I mean, I
16:32
think if uh plaintiffs are going to go to Washington DC and litigate this through the federal courts there, which
16:38
specialize in administrative law under the APA, that’s the way it used to be actually until these nationwide
16:45
injunctions started really appearing in the last decade. And a lot of decisions fall outside the APA. The APA doesn’t
16:52
cover everything. The APA, you know, it basically regulates the use of delegated authority by the administrative
16:58
agencies. it may not cover a lot of the discretionary decisions of the president. And so I I would think we
17:04
should let uh we should see how things work out under the CASA decision. I have
17:09
I personally think that you know 5 years from now we’re not even going to be talking about this decision. It’ll be a footnote in federal court’s case books.
17:16
What’s really important is you know the structural issues that we’ve been discussing and then the political issue that it allows President Trump to go
17:24
forward on his agenda. agree with it parts of it and disagree with parts of it as we all do, but at least people
17:30
voted for him. He’s putting this agenda into place. As you say, Charlie, it’s up to Congress to stop him, I think, more
17:35
than the courts. And I think that’s really the bottom line message is that you shouldn’t rely on the courts to
17:41
adjudicate everything that Trump is doing. Yeah. Look, I wanted to take again part exception to that. Take the tariff case.
17:48
John and I disagree on the merits, but I thought the case of the government was really weak. And so then the question is
17:55
you get a preliminary injunction chiefly determined by the question of the substantial likelihood of a skept
18:00
appeal. And given uh if you see today Trump reannounces the tariffs the stock market goes down five or 600 points in
18:08
response to it. I thought that would be appropriate for a judicial decision uh to essentially enjoin that particular
18:15
case uh the tariff power of the president until it’s resolved by the Supreme Court. And the quid proquo is
18:21
you bring it up as quickly as you can because under these circumstances now it’s the other way around. Uh since the
18:28
president is not bound, he’s going to frolic as much as he possibly can and it’s going to take I guess at least 6 to
18:35
8 months before you can get any authoritative decision coming out of the court. Uh so if I were running this
18:41
world, I would have essentially gone to the Supreme Court and asked them to reinstate the uh preliminary injunction
18:48
because I think the dangers of going ahead are much more dangerous in this novel area than waiting behind. So
18:54
that’s another technique I think that has to be thrown into the mix. I do think that there is a paradox here
19:00
practically speaking and that is if you look at say Biden’s repeated attempts to
19:06
forgive student loans. Yes. The first one relied upon the Heroes Act. Biden said, “The Heroes Act
19:13
allows me to forgive hundreds of billion dollars of student loans and I’m just
19:19
going to do it.” And he started to do it and the case went up and eventually hit
19:25
the Supreme Court. Once that decision came down, Biden tried something else.
19:31
Now, he wanted to convince the public that he was defying the Supreme Court. He kept saying, “The Supreme Court said that I couldn’t do this, but I’m doing
19:37
it anyway.” That wasn’t quite true. He went through a different avenue and that avenue involved the administrative
19:43
procedure act. There’s a paradox here though in that under this ruling
19:48
practically speaking the first avenue that is not using the administrative
19:53
procedure act just doing it as a president is going to be easier for presidents to get away with than running
20:00
through all of the hoops because the court has said I think correctly that in
20:07
that case and you’re a lower court judge you can’t issue a nationwide injunction even if what the president’s doing is
20:13
flagrantly illegal. But in the second case where the APA is involved, you can.
20:18
And I just worry, this isn’t a legal point, this is more of a structural point. I just worry that unless Congress
20:25
gets its act together, we are going to see presidents doing crazy things for quite a long time before the courts get
20:32
involved. I think that’s I think that’s right. I think that’s right. It’s because something I hope we’ll get to later in
20:38
the podcast. It’s because Congress has delegated such enormous power to the president and to the agencies with
20:44
almost no standards on how they use that those powers, right? Right. This is an invitation for exactly what you
20:50
described, Charlie. And the harder thing, which I think we didn’t quite get to enough in the uh case in the uh both
20:57
the Biden student loan case and then the early case against DACA is that presidents can achieve a lot by not
21:02
doing anything, by being passive. Biden essentially saying, “I’m just not going to collect loans.” President Obama is
21:08
I’m not going to enforce the immigration laws. That makes it even harder for the courts to force a president to do
21:14
something. And as you say, so then it really is only up to Congress to fix the problem and go to the American people
21:20
and say, “Support us in our efforts to right get the executive to actually execute the laws.”
21:25
I think we can do something better than that, John. uh the proposition that I gave was that you do not have in the
21:32
original case any authoritative decision and so you do not allow a particular
21:37
judge to make a particular judgment. But in this particular case, if Biden comes back where the Supreme Court has in fact
21:44
issued a definitive ruling against him and people now want to say that they could split a hair and get around it, I
21:51
think it is now appropriate for a district court to say, “Look what the president, look what the Supreme Court
21:57
did on this at a nationwide level. We’re not doing this on our own authority. We’re doing it on the authority of the
22:03
Supreme Court and we’re going to stop him.” And at that particular point, you can say to the other side, okay, run up
22:09
to the Supreme Court and see if they start to disagree with you. Um, but when we start talking about equitable
22:15
principles in the 19th and 18th century variety, they were always flexible. They start off as presumptions. And we
22:22
certainly have a very good reason for not allowing the random district court judge to make up his own mind. But it’s
22:27
not a reason that’s available if all that random district court judge, sorry Charlie, is doing is enforcing a decree
22:35
that was made and issued by the Supreme Court. So I would treat this as the son of a universal injunction and would
22:41
enjoin it accordingly. So um the equitable stuff uh as I understand it
22:46
was is completely different and uh I think it’s important to note that in the original constitution when they said the
22:53
supreme court shall have jurisdiction over all cases in law and equity the words and equity when added back into
22:59
the constitution were a major revolution because now it meant that a whole set of
23:05
rules on the English side get brought in which are not normally there. They change everything from standing on down.
23:12
And what happens is uh you have to really understand how the flexible positions work and I was raised in that
23:19
particular system. Unlike John, I have the the benefit of the curse of an English legal education at the beginning
23:24
and I think curse is what I call curse. No no it is actually it has been transformative. Everything from
23:31
repairarian rights under Roman law on forward. Uh having studied two legal systems is I think the single greatest
23:38
advantage that I’ve ever had in legal education. And I was not aware when I made that decision back in 1964
23:46
just how powerful a situation would turn out to be cuz here we are.
23:51
No, John, I I think but I I do think that what you raised, Charlie, is a fair objection, but if you start looking at
23:57
the way in which this thing goes, um it’s clearly an effort at circumvention and there’s already been an
24:03
authoritative Supreme Court decision. So, I don’t think that the randomness is there. Indeed, I would think that every
24:09
single judge, no matter where they are, would be duty bound to say, uh you can’t
24:14
run around a Supreme Court decision and hope that uh you can escape it when we’re around. I’m going to be henceforth
24:21
much more precise in my use of the word random, which I used to denote not a
24:27
Supreme Court justice, but I should have been clearer. All right, that’s okay, Ch. We’ll hang it around you for life.
24:34
All right, speaking of precision in language, let’s move on to United States v. Sketti. This was another blockbuster
24:41
case from the term that just finished. A potted history of it goes a bit like
24:48
this. Tennessee passed a law that banned the
24:54
prescription and use of puberty blockers and hormone therapy for the treatment of
25:02
so-called gender dysphoria in minors. This law was challenged under the equal
25:08
protection clause of the 14th amendment and the Supreme Court ruled 6 to3 that
25:19
the ban was predicated on medical reasons and age and not on sex. that it
25:28
therefore did not discriminate based on sex in
25:33
violation of the 14th amendment and as a result only required rational basis
25:39
review rather than heightened scrutiny and then there were a bunch of concurrences that made various points.
25:47
Justice Barrett for example said that transgender individuals are
25:54
not a protected class per se and therefore that irrespective of whether
25:59
or not this law is based on sex that
26:04
there would be no other outcome for them but rational basis review as a result.
26:11
Now I as an originalist, as a devote of
26:17
original public meaning, think that the court got this one right. I do accept
26:23
that it is really quite complicated trying to work out what is sex
26:30
discrimination, what is related to sex and what is not in these cases when you
26:35
have somebody who is making a claim based on their
26:44
desire or belief that they are one sex and not the other. And it’s also
26:50
complicated by the fact that Tennessee’s law was
26:57
applicable only to people who wanted treatment for gender dysphoria, not who
27:03
wanted medications to help them conform to the sex they were assigned at birth, as the phrase
27:10
goes. But I think this was the correct decision. I don’t think the equal
27:16
protection clause of the 14th amendment prohibits this sort of law. John, where
27:22
you at? I think this is uh of a piece with the way the court approached the dos
27:28
abortion question in DOBS. uh basically deferring to the states to make decisions about what’s uh acceptable or
27:36
unacceptable medical treatment and in gender in general to allow the states to
27:42
uh regulate with their police powers on any area where there’s no clear constitutional right uh that would
27:50
preempt it. So uh I think I I think just like when dos the court here said
27:56
there’s no uh core constitutional right at issue here and in this case this
28:01
actually conservatives are some conservatives are upset with the court here too because uh the court said we’re
28:06
not going to say one way or the other whether there’s any constitutional
28:12
uh group that we’re going to pro protect with heightened scrutiny uh for transgender people. And there are some
28:18
conservatives who wanted the court actually to say that uh actually the these procedures should be completely
28:24
banned by the Supreme Court. But instead the court said in areas where there’s no clear constitutional right then we’re
28:30
going to allow the states as we do on most other things to decide for themselves uh the policy. I think that’s
28:37
the right uh I think that’s the right decision in terms of our uh federalism. I I think another angle that hasn’t been
28:44
played up as much in the commentary is that this decision also uh is an
28:50
important nod to families. I notice that the law here at issue was to prevent
28:56
transgender treatment of children. It doesn’t try to prevent adults from seeking these treatments. And I think so
29:03
I think it’s of a piece with other decisions this term that also expanded I
29:08
think the right of families um to control harmful things that
29:14
happened to their children. Now this is an interesting question for conservatives because I think most conserv most Americans think that the
29:22
protection of the of the family as an institution is an important state interest maybe the most important state
29:27
interest but it’s not in the constitutional text. This is the thing. The constitutional text talks about the
29:33
state, talks about individual rights. It doesn’t talk about the right of families, even though we all assume it
29:38
must. And so there are series of decisions from the ear early 20th century where the Supreme Court
29:46
creates a right of families uh under the constitution. But I think this is a
29:52
problem to for conservatives who believe in the original understanding and don’t see anything in the text about this,
29:58
right? But I think this has been this term if you want to talk about this case and then ones we’re going to talk about later about the LGBTQ books and schools
30:06
and about age verification for porn sites. This was the term where the family one and formed uh shows that more
30:14
than anything. Um I think about this in a slightly different way. So I’m going to take
30:19
after Charlie again which is my new habit. And if we try to go back to the original Thank God that the pressure is off me at
30:26
last. Well, well, you wait, John, you have your turn. Um, uh, what happens is the term about originalism in the 14th
30:34
amendment is very much tied up with the structural issues. And I think you could make a pretty strong argument uh that
30:41
the 14th amendment, all the citizenship stuff was done under the privileges or
30:46
immunities clause and that the equal protection and due process clauses were only dealing with criminal prosecutions
30:52
of one kind or another. uh so they would be utterly inapplicable to this case. To do that, you have to basically get rid
30:59
of the amount of law that has taken place over the last 150 or 125 years.
31:04
And nobody’s going to do that. So it is uh but that doesn’t mean I don’t agree with that. Uh yes, I’m just Well, I I know you
31:10
don’t, but we could argue that some No, I’m saying I I have I think the privileges and immunities case is a really strong one. So I just to
31:18
I agree with Charlie on that. I’m just I’m just making clear that I agree with you that it’s probably not going to happen. But that doesn’t contradict my
31:24
position. No, that is exactly the privilege and immunities is the place where this ought to come. And I think that if you do it
31:30
through that clause, it’s much more powerful than doing it through the equal protection clause. And what we’re doing is we’re basically compensating for the
31:37
very restrictive reading of privileges or immunities in the slaughterhouse case which was decided in the early 1870s and
31:44
basically gutted the original constitutional structure. Uh but looking at schemedi um one of the things about
31:51
it is the parental rights issue is simply not involved in this particular case and that’s surely the much stronger
31:57
claim uh relationship to this and both to mammoot. You could say that look I’m the parent of this case I turn my
32:04
children over to the state only for limited purposes and unless I’m committing some form of abuse and
32:10
neglect which is a customary ground for intervention uh you can’t touch me. uh but they didn’t do that and so what
32:17
happens is all the question of parental controls are out of it and then you have to figure out whether or not the
32:22
treatment given to one kid is not the same and the equal protection argument I think falls on this simple proposition
32:29
everybody agrees that a the disease the treatments that you give to boys and to girls are appropriate to their sex and
32:36
this is not a case in which we’re saying we’re going to prohibit this transformative surgery to girls and allow it to boys it’s the same rule with
32:43
respect to both of them. And if that’s the case, uh that both of them are prohibited from doing things that are
32:49
medically destructive, uh the issue, it seems to me, is very clear, there’s no equal protection claim, uh that arises
32:56
out of these cases. And there is nothing more common when you start looking at medicine to have detailed restrictions
33:03
imposed by the FDA on the particular terms and circumstances under which a particular drugs can be used. And if
33:10
you’re trying to bring somebody back to their original sex, uh, help a boy grow or a girl grow, that’s very different
33:16
from trying to do the other. Every recent medical discussions, including some that have been published quite
33:22
recently, have all come up with the same conclusion. Uh, that the risk associated with these treatments is much greater
33:28
than is commonly supposed. uh and that the justifications for them that have been given in the medical literature uh
33:34
by the various transgender organizations are exceedingly weak. That was the
33:40
result of the Cass report in England and there have been recent studies coming out of NIT MIT saying exactly the same
33:46
thing in the United States. And and so as far as I’m concerned, uh if what you’re doing here is you have a health
33:52
and safety issue, uh what you do is you say, “Look, when you’re an adult and you can make these decisions on your own,
33:59
and you’re going to have to go through a lot of fairly exhaustive decisions, but we’re not going to allow for an
34:04
irreversible surgery there.” Now, this is clearly going to be the case um if the parents are opposed to the surgery
34:11
and the state wants to impose upon it. But I think it’s a hard case, but in most cases a credible case to say it’s a
34:18
form of abuse and neglect to subject the child to that kind of treatment given the state of the medical knowledge. Now,
34:24
if you go back to Screetti, the girl involved in the case, she did not want a sex change operation. A mother said, I
34:30
want my daughter to be more of what she was. I can’t even figure out why that case is there because I don’t think
34:35
since I read it several times that I got the basic situation over. So, I think in
34:40
effect this argument was easy. the hard arguments are going to come when the parental rights issues are there and
34:47
that’s what gets you into Mammud. And here it seems to me that John has got a point. Uh the parent rights are going to
34:54
be dominant in that particular case. And so now you have to ask why are they going to be irrelevant in a case like
35:00
this? And so now remember many people in this issue actually believe that the
35:06
state can kind of sequester students in some particular way. It’s not even clear that uh the real strong believers in
35:12
this think that parents actually have a veto right over transgender surgery for their children if they’re say 15, 16 or
35:18
17 years old. Uh the case is easy. Uh the other problem is extremely hard and
35:24
let me just give an analysis. If you’re trying to figure out in the law of tors
35:29
and in the basically in the regulation by zoning and so forth, what happens is legal activities are things that you can
35:37
not stop. But if they’re nuisances, you can stop them. So what’s the definition of a nuisance now becomes a
35:42
constitutional issue. And it’s exactly the same thing. What’s the definition of abuse and neglect? If it turns out the
35:49
term is very narrow, then the parent should have their way. If it’s somewhat broader, it goes the opposite way. And
35:54
so what happens is these terms have never been subject to the kind of intense scrutiny that they’re going to
36:00
get in the transgender context. And there’ll be a lot more litigation. So I don’t think anybody should assume that
36:06
the whole whole question is put to bed by this particular decision. I think it was the wrong issue to grant Cersiara
36:12
on. I think the parental rights issues are much stronger for the plaintiffs than are the equal protection issues.
36:18
All right. But let me push back on that a little bit. So just a little bit. Let’s
36:24
put to one side this question of parental rights. Given that neither case, neither Mahmud nor
36:31
the scheme decision were litigated on those grounds. Doesn’t the outcome of
36:37
both these cases fit nicely with
36:42
my view of the 14th amendment. In other words,
36:48
you have the schematic case that is litigated on equal protection, but we can even pretend it was litigated on
36:54
privileges and immunities if we want and you have the Mahmud case which was litigated on first amendment grounds.
37:01
Now, in one instance, Sketti, you have claims being made about constitutional
37:06
rights which don’t exist. Either there is no equal protection claim based on the court’s ruling in schematic or as
37:13
you say Richard the equal protection juristprudence over the last century and a half is just wrong and instead the
37:19
focus should have been on privileges and immunities. I don’t know what you would find within that clause although I think that a lot more litigation should be
37:25
brought on that for example in the McDonald case of 2010 I think that was a privileges and immunities case rather
37:33
than the way that it was handled with Mammud. You’ve got a first amendment
37:39
challenge. The brought by Yeah, but Charles, it was brought by parents. It was brought by parents. But the point
37:46
that is that the court looked at the question of whether or not public schools burdened parents religious
37:52
exercise by providing no opportunity or notice for an opt out. Obviously, the first
38:00
amendment exists and even under a privileges and immunities reading of the constitution and the 14th amendment, the
38:07
first amendment would evidently exist in exactly the same way as it does now. So there’s no
38:13
contradiction here in the court’s decisionmaking, right? Because I never said there was.
38:18
Here’s how. Now, I was the one who raised this as a possible, not me. I I not guilty.
38:23
Here’s a way to think of it. Suppose Yeah. Suppose uh in scretti the state had said we are banning uh right gender
38:31
transition right it’s not just surgery it’s also hormone blockers and so on suppose the state just said we’re
38:37
banning all of those medical procedures for adults too I think it’s a harder case does the state have the right to
38:43
stop you from doing something you and your doctor believe would actually benefit you but the state thinks it
38:50
won’t and then think about the mammood suppose instead of uh this taking place
38:56
in the classroom and and again as you point out Rachel an opt out uh under the free exercise clause from these classes.
39:04
Suppose instead the state had said we are putting these books in the public
39:09
library and we’re going to have publicly supported classes at the public library
39:15
uh extolling the ideology of these books. I’m not so sure the court strikes that down
39:21
either. So I think that’s why I think the family element and the fact that involves children is so important to the
39:27
way the court decides it. But there’s a lot more coercion involved in making children go to public school
39:34
with truency laws and such than there is with government subsidizing a public library, isn’t there?
39:40
Yes. But he was talking about a school library. Look, let’s go back to that issue. What happens is if you go back to
39:45
the first of these cases called tinker, you’re telling students that they have to go to a public school and then
39:51
somebody says can you put any condition on that that you want so they can’t wear this kind that kind of hat or armband in
39:59
protest of the Vietnam War and the answer has always been if you’re coercing them to come there’s some
40:04
limitations here’s the basic problem suppose it turns out these parents and remember they were a very diverse group
40:10
of parents said you are only giving this point of view we want equal time so that you express to the students who are not
40:17
familiar with it what the Muslim, Jewish and Christian traditions are about that subject and you have to give them equal
40:23
time that would be regarded as a per se violation of the free exercise and the
40:28
establishment clauses both in the situation. So the reason why this case is so utterly treacherous is one side
40:35
says we’re not bound by the religion clause the other side is. So you can never get an even debate between the two
40:41
sides on that particular question. And so just ask yourself uh uh the school
40:46
board is displaced. Montgomery County gets a new set of principles and what they announce is they’re going to have
40:52
every week a session about the religious beliefs of each of the particular stuff. Uh you can’t even do that at a
40:58
graduation ceremony and you’re certainly not going to be allowed to do it for this court here. So if you can’t do the
41:05
other side, there’s an utter lack of balance. And the parents here aren’t saying please proletize for us. They’re
41:11
saying this is just not an appropriate subject for kindergarters. And I think in fact that they’re dead right about
41:16
that kind of issues. And Charlie, what you said is surely correct. Uh privileges or immunities certainly
41:22
included, if you go back to some of the definitions, the ability to raise your own children is one of the natural
41:28
rights. I wrote this long article on that particular subject some time ago and I think that that’s clearly the
41:35
correct rule. And so for example, if you have a child and you want to take them out and proitize with them, can the
41:42
state say no no the child is not allowed to be out after 7:00? Well, in a case
41:47
called Prince back in the 1940s, they said you could do it. Uh but I think today those decisions which limit
41:53
parental control or guardian control are much more suspect. But the basic asymmetry in this case is I think the
42:00
hidden difficulty. Any one of these parents if they tried to have their religious views expressed couldn’t do
42:06
it. Uh justice Osoray says at least five times in the descent. This is just mere
42:11
exposure to this stuff. Well that’s just wrong. It’s indoctrination not exposure. But if it were mere exposure to
42:17
religious liberties you couldn’t bring them into the school under the separation do. So you never want to have
42:23
a system where there are two competing ideologies, one of which is banned from constitutional reason and the other is
42:29
given free flow. So I thought the descent was Can I just Can I just say I love the idea of Richard and his kid
42:35
procilitizing people in the neighborhood about the virtues of Roman riparian law. This is what makes America so great.
42:42
Absolutely, John. And in fact, we do that because I’m sitting here looking over Long Island Sound. And the number
42:48
of times that the Raparian rights issue has come up is actually very very large.
42:54
Um, everybody teases me about Roman law, which I’m duly honored. And then when you start seeing a lot of these cases,
43:00
it turns out people go back and start talking about the Roman law principles. I I would just hope you would you were
43:06
as abused as much as a Jehovah’s Witness going I won’t be no I mean as I said the
43:13
single most distinctive feature of my warped as you would say my warped worldview is I was trained first in the
43:20
civil law and the old English systems before I studied modern American law and it it leaves a trace on you it’s like
43:27
baptism right all right well another case that intersects with children and adults and
43:35
the constitution was free speech coalition v. Paxton. Now, in the last
43:41
few years, a bunch of states, including Texas, which was involved in this case,
43:46
have passed laws that require anyone who wishes to visit a pornography
43:54
website on the internet to have their age verified.
44:01
Now, this was litigated. There are a host of cases most from the 1990s on the
44:09
internet and then there are earlier cases one famous from the 60s Ginsburg v
44:14
New York on pornography. The basic contours of this case were that the
44:22
plaintiffs, those who represented the pornography websites, suggested that the
44:29
Texas law ought to be considered under strict scrutiny as a violation of the
44:37
First Amendment. And Texas said, “No, no, no, no, no. It should be merely
44:43
rational basis because pornography on the internet is a different case than
44:50
say viewpoint discrimination. And the court split the baby and said, “Nope,
44:55
we’re going to apply intermediate scrutiny and under intermediate
45:01
scrutiny, Texas’s law survives and is not a violation.” Now, I have a few
45:07
questions about this. I didn’t read anything in the majority opinion that I found particularly objectionable. I was
45:14
slightly primed to, not because I have a problem with keeping children away from pornography, but because I think some of
45:21
the designs of some of these laws uh are a problem for various internet technical
45:27
reasons we don’t need to get into on a law talk podcast. But I read the majority opinion and I thought, yeah,
45:33
this mostly makes sense. But I did have a couple of questions. I wonder if either of you want to take on or if you
45:39
want to ignore them and talk about something else, that’s fine, too. Why doesn’t this fall under a viewpoint
45:47
discrimination rubric? Why why is this not treating a particular type of speech
45:54
differently? Now, I accept the originalist argument that pornography is not the freedom of speech as originally
46:01
defined, but the Supreme Court has historically included it in many cases and no one really
46:09
pushed back on this in this case. So, why doesn’t it have a viewpoint discrimination problem? And was
46:16
intermediate scrutiny the right answer or is that just sort of putting your thumb on the scales as Justice Scalia
46:22
used to argue? So you can get to the conclusion you want. You want look if you start with I’ll take this one first. If you start with
46:30
this situation and you start going back to the originalist version and they talked about freedom of speech. Uh it
46:35
was a code word which covered all sorts of things like music, art, politics and the rest. But pornography was illegal in
46:42
every state in the union and there was no constitutional challenge to it. Um and so at that particular point if the
46:48
conduct is illegal uh it turns out it doesn’t get any kind of scrutiny under the first amendment and that was the
46:54
origin and then slowly what happens is we have these decisions on pornography
46:59
and uh obscenity and so forth and now uh it’s lifted a little bit and you give them less scrutiny. So the answer is one
47:06
or the other. But I would not treat this as a pornography case. I would treat this as John is going to tell me rightly
47:13
I think that it’s a parental rights case. Uh do you want your children to be able to watch pornography if their
47:19
parents are against it? And I think the answer to that question is no. And so therefore trying to have an age
47:25
verification is a respectable mean of trying to enforce that particular situation. And I would think that that
47:32
would even survive strict scrutiny uh given the nature of the activities involved and so forth. And so to give
47:39
you another example, suppose it turns out what they said is before you can listen to a presidential debate, you
47:45
have to be 18 years of age. I think most of us would describe that as per se unconstitutional. So you have to look at
47:52
the history of the underlying substantive behavior uh to see that the first amendment stuff is being
47:58
responsive to that. So I regard this as a perfectly sensible case. And when a case is perfectly sensible, I don’t like
48:05
to find constitutional ways to uh override them because I think public health, safety, and morals are the
48:12
traditional police power justifications are accurately called into play in this case.
48:17
John. John. Yeah. I I think uh Charlie again, so um
48:23
I would just say think about what the court would have done if this law were not targeted to protect children or to
48:30
reinforce the rights of the family to protect children. Suppose it had been uh
48:35
you know, we want age verification for everyone who uses uh pornography website
48:40
just cuz we want to know what people’s ages are. And or suppose we said, you know, the government said we don’t want
48:45
old people. We we want to protect the elderly from these dastardly websites. So I think that because it’s children.
48:52
Yeah. Yeah. Oh yeah. Mrs. Epstein better be putting some kind of content blocker on
48:57
your internet your computer. Richard, if she hasn’t already if she
49:02
hasn’t already, tell her to call me and I’ll tell her how to put one on. But actually No, she don’t get her involved in
49:08
computer manipulation. She’s in rebellion. Actually, Charlie’s a computer genius. He can do it without you even knowing.
49:14
Charlie, I will send my wife in contact with you. The I but I think Charlie’s right.
49:21
Otherwise, there would be a very good uh uh content, you know, content uh
49:26
viewpoint. I’m sorry, content restriction case to be brought. Um and I
49:32
think the other interesting thing here is again like but the court, you’re right, Charlie, the court doesn’t really
49:39
express it that way. they don’t bring forward uh the family rights thing but I
49:44
think it makes a big difference in the decision of the case as as Richard said right they look at the original understanding uh and they decide
49:50
obscenity is not really protected by the first amendment that’s actually an interesting direction about the court uh
49:57
on the first amendment because generally the Roberts court uh one of the things they agree on is very robust protections
50:04
for the free for the free speech and the first amendment in general uh but I wonder if this is a sign that they’re
50:11
going to start uh defining free speech as primarily political uh speech and
50:18
start to red yeah reduce protections for things like obscenity reduce protections
50:24
for things which might not be at the core of the first amendment like you know pornography I think that’s
50:29
something that uh you could see this court’s sort of libertarian and conservative directions coming into
50:37
conflict if you asked me if I were all nine justices. This case would have been
50:42
quite simple because my conclusion would have been that under an originalist reading of the first amendment,
50:48
pornography is not protected and therefore there is no case before the Supreme Court because there’s no claim.
50:54
But of course, they didn’t do that and none of them said that. So I I think it’d be very interesting if they did.
50:59
But I was surprised that even Justice Thomas didn’t make this point. I think we have to talk a little bit
51:05
about methodology and originalism. Uh what happens is originalism is great
51:11
until it turns out that you get an unbroken line of decisions which essentially changes the direction and
51:16
fabric of American law at which point one tends to be a non-originalist. When
51:22
we talked about all the stuff with the equal protection clause being unrelated to criminal activities and so forth,
51:27
that has been around as the dominant position since the 1880s or 1890s. And
51:33
people like me and you, Charlie, are not going to be able to say, “Oh, no, it doesn’t apply there.” And remember, no
51:39
privileges, immunities. So all of a sudden, you get the voting cases. Now, if you try to put the voting cases in
51:44
under the 14th amendment, what’s going to happen to them? Well, they’re going to die because there’s a case called Minor and Happerstep in which it was
51:51
made manifestly clear by a unanimous Supreme Court that voting rights are not protected under the Fourth Amendment.
51:57
They are not an incident of citizenship. Well, that’s what happens if you want to go back to privileges and immunity. So,
52:04
these guys are not going to do it. And I call this the prescriptive constitution. It’s based upon the same notion you have
52:11
in Roman private law, which is if you do a wrong thing for long enough, all of a
52:16
sudden it becomes a right thing. And statutes of limitations, that’s totally wrong, Richard. That does not apply to constitutional
52:22
interpretation. Take everything you like from the common law, Roman law, and say,
52:27
there’s no adverse possession in the constitution. Otherwise, segregation would have been constitutional. No, no, no. You have to be much more
52:34
careful about how it is that you do. Well, segregation went on for 60 years and it was agreed on by all three
52:39
branches. You can’t allow like practice to change constitutional. I didn’t say I didn’t say that you could
52:46
do it uniformly. I said what happens is some of these changes go on and you accept them. Others you want to reject
52:52
them and you have to explain. The question is which one do you accept and which one? Well, I’ll give you an I
52:58
would say you don’t accept. I would say you don’t accept any of them. No, John, you don’t believe that any more than I do. I give I would give I
53:06
would give the original understanding primacy over incorrect subsequent interpretation. Okay. So there’s no jurisdiction in
53:13
federal court over corporations. I’ve always actually wondered why whether the 14th amendment does not
53:20
apply to corporations. I don’t see why corporations should be considered individuals with constitution. I mean but I’m I’m talking about
53:26
happy to get rid of that. No, the diversity jurisdiction. I’m just talking about why corporations aren’t
53:31
individuals that have constitutional rights at all. So they wouldn’t fall under it. Even I would I would make it even easier for you.
53:37
The obscenity cases that we were talking about here, which is an interpretation of the first amendment that goes back 50
53:43
or 60 years, would be no more difficult to overturn than was Row. I agree with that. Yeah, I
53:49
mean I I think row is of course clearly and manifestally wrong. Uh but one of
53:54
the things about it of course if you overturn that it turns it leaves it to the states and it was a disaster for the
54:01
Republicans in doing so. But now suppose what you wanted to do was to say look for the last h 100red years everybody
54:07
got it wrong when they allowed corporations to sue in state court or in federal court rather and are we going to
54:12
invalidate every one of the decisions that were made in these cases on the ground that there was a want of jurisdiction when it came
54:19
they’re based on an incorrect interpretation I agree it’s very difficult
54:24
it’s impossible there’s not but but but okay but what we’re talking about here is whether or not that view
54:32
could be given path dependency practically overturned. We’re not talking about whether or not that has
54:39
now made it what the constitution means. And I think that that is a big distinction. I don’t think it makes it
54:46
right. I don’t think it makes it the original meaning. This is this is the same argument, Richard. Richard, this is the same
54:51
argument that segregationists made. They said segregation has become so hardwired into the southern political, legal, and
54:58
cultural systems that you can’t uproot it. No, but your argument is it’s just so hard to uproot something practically
55:04
that we have to leave it in place. I didn’t say that every time there’s an established convention uh that’s for a
55:12
long time it’s got to be preserved. I said whenever you have an established protection, you have to figure out
55:17
whether it’s one that ought to be preserved or not. What’s the test that I would do? Well, how do you your test? I’m going to give it to No, it’s not. In
55:24
in the segregation cases, of course, what was going on was an abridgement of individual rights of very strong nature.
55:30
In the cases that I’m talking about, what you’re trying to do is to create a system in which a classical liberal
55:36
model, which is the basic model of the time, is going to be preserved because I mean, if you’re going to do this, John,
55:41
there going to be no article one courts. That’s a contradiction in terms. But the agree with that, too. There shouldn’t be
55:47
any article one. You know, all you’re doing is saying things that me and Charlie would like to happen,
55:52
right? I mean I I know Char you mean you’re next you’re going to say oh and you shouldn’t allow agencies to issue
55:58
regulations raising taxes. I’m like bring it tell me something more that’s going to so terrible that’s going to happen.
56:03
I’m just telling you that if you look at some of them uh the point about regulations of course is the
56:09
non-delegation doctrine is very much a part of the traditional original constitution situation. So, um, just to
56:16
take one particular Can I just point out though, Richard, that what you’re doing is you’re saying the precedents that I agree with and the
56:23
ones that I don’t agree with are dictated by an external moral system that I have to the constitution. I’m
56:29
going to pick and choose. No, cuz you said the ones some are consistent with the classic liberal constitution and
56:35
some are not consistent with the classic liberal constitution. And it’s your view of what is the liberal con classic
56:40
liberal constitution? No, John, it it’s not that. It’s the view of everybody before me who’s passed
56:46
on this issue for the past 150 years. That’s why it’s prescription. So, do we
56:51
go back to the original view of the electoral colleges where it turns out they’re deliberative bodies and so
56:57
forth? Well, we got past that in 18 something or other and by 1950 was ratified. I’m not talking about Richard
57:04
Epstein as being the sole protagonist on this. I’m talking about a very established powerful tradition shared by
57:11
just about everybody. Still, it’s still a moral view that it’s external to the text. Don’t think though that
57:18
acknowledging that some originalist ideas would be more difficult than other
57:23
to put into action because time has passed. I don’t think that’s a criticism of originalism so much as it’s an
57:30
acceptance that we are imperfect as no no it is a very important one because
57:35
it turns out there are methodologies that have been used by everyone not just me which essentially when you have a
57:43
deviation from the originalist position which is baked into everything that happens thereafter you don’t change it.
57:49
So how do you get to article one courts? It’s because of the evolution of the customs party. And what happened is
57:56
around 1810 or 12 instead of it being an internal position they created an informal court. And then when somebody
58:02
says, “Oh, let’s get rid of that particular court.” What the Supreme Court did is it fudged and it says for
58:07
public rights, we don’t get rid continue to lie about it because the practical consequences were
58:15
look this is the way every legal system has done and so go back to statutes of
58:20
limitation ours. No, not on the statute of limitations problem is very simple. You trespass on
58:27
somebody. What has this got to do with that is not stat
58:33
when no? This is my Richard. This is my point. The problem with the way you’re doing
58:38
this is you are pulling these elements from other legal systems that are not const American constitutional. You’re
58:45
saying we should adapt them and throw them into the constitution cuz that’s the way we should reason. John, I’m not saying we should. I’m
58:52
saying we have and that everybody who was faced with the question of what you do when they have to decide stop it or
58:59
not stop it has not decided to stop it. So today in our kind of strange American
59:04
constitution uh you could not get anybody to create an article 3 court. All new courts that are going to be
59:10
created are going to be article one courts. It’s not because Richard Epstein said so. It’s because lifetime tenure
59:16
became just such a very difficult problem uh that nobody wanted to do it
59:21
and we’ve done it for a long time. The Interstate Commerce Commission was surely illegal in some sense back in
59:27
1887. But it doesn’t get challenged until 1935, you know, with Humphrey’s executive. And
59:34
nobody wanted to go back and say every one of the subsequent statutes dealing with that topic are unconstitutional.
59:40
You’re making it appear as though it’s Richard Epstein is describing himself. What Richard Epstein is trying to do is
59:46
to describe the way the other decisions done. And the reason why pie never lasted is because it was thought to be
59:52
antithetical by everybody to fundamental notions of individual rights. It wasn’t just Richard Epstein who wanted to say
59:59
that. But diversity jurisdiction for corporations, come on. If you got rid of that so forth, you can’t possibly want
1:00:06
to do that. And nobody does. And we have the same problem issue after issue. And
1:00:13
what happened? Well, you know what? John John U thinks that we should move on to another case. Well, I think John is going to be wrong.
1:00:20
Let’s put some meat on the bone with our final case. We can talk about Consumer’s
1:00:26
Research v. Federal Communications Commission, which is in some sense absolutely relevant to what we were just
1:00:34
discussing. So, the Telecommunications Act of 1996
1:00:42
contained permission for the FCC, the Federal Communications Commission to administer a universal service program.
1:00:51
And what that means in practice is that if you pay a telephone bill in the US,
1:00:56
you pay a small monthly fee on that bill and that money goes into a pot and the
1:01:05
universal service fund as it is called is then used to give discounts and
1:01:12
breaks and subsidies to people who don’t have much money to expand
1:01:17
infrastructure, connect hospitals and so so on and so forth. And the amount of
1:01:23
money that’s collected now is enormous. I mean, it’s about 10 billion dollars a
1:01:29
year. Now the problem here from the perspective of the plaintiffs in the case and I must say from my perspective
1:01:35
as well is that this fund is administered and the money is raised
1:01:41
into it by a private organization called the USAC, the Universal Service
1:01:48
Administration Company. And the claim that was made is that Congress is
1:01:54
raising funds, taxes even on Americans
1:02:00
well without doing it directly. It’s handed over the responsibility to this
1:02:05
organization and this organization in some cases has handed that
1:02:11
responsibility over to private entities. So you have a delegation of a delegation and the argument here was that Congress
1:02:18
simply is not allowed to do that. That the taxing power is given to Congress,
1:02:24
not to some, here’s the word again, random organization that is outside of
1:02:30
the legislature. But the court let it go. They said that Congress is in charge
1:02:36
because it made the delegation. It could pull back the delegation or add guidance or change the system at any point. and
1:02:42
therefore it’s fine. And Justice Gorsuch wrote a I think it was 42 page 36 page
1:02:48
descent very long which was very dear to my heart in which he laid out the
1:02:55
case. Uh I think this should have gone the other way. I was not surprised but I
1:03:00
was very disappointed. Richard, why do you think after all these years this should have gone the other way? Well, I
1:03:06
mean, I thought you would look, I mean, the the original mistake was the Thomas mistake when he said that you could have
1:03:12
a taxing power that you give to uh some private party uh to levy. Um, and I
1:03:19
think that those cases saying that you could do it to the FTC and out of the money was just wrong. Um, the go back to
1:03:27
the original delegation case, um, it was the Hampton case and people forget what the delegation was in that case. It was
1:03:35
a situation where you had a mechanical set of rules that allowed you to determine with great deal of specificity
1:03:42
formulas for putting tariffs on different goods coming in from different countries. Uh and that’s essentially if
1:03:48
you don’t allow that form of delegation then nothing could run. This goes back to the old post office case. Congress
1:03:55
can set up a post office situation. uh does it really have to specify in the year 2000 where each particular post
1:04:02
office is going to go in each city? No, you can delegate that out subject to parameters. But in this case, it’s just
1:04:08
a huge slots of transfer of money from one group of individuals to another. And that’s so far removed from the kinds of
1:04:15
technical issues that are before. There is no prescriptive constitution on this issue. Uh because the worst of the cases
1:04:21
came down two years ago. I can’t think of any case that was decided a hundred
1:04:26
years ago or more in which the kinds of delegations that they’re talking about now are there. So I think in effect the
1:04:33
structural arguments that you make are correct and that this is a case where the prescription is irrelevant. And so
1:04:39
the originalist arguments on non-delegation are there. And why are they important? For a very simple
1:04:44
proposition, if A gives a body a delegation to be the only permissible
1:04:50
delegations in my view is that the recipient body has to have the same distribution of preferences as the body
1:04:56
that gave the district the delegation or otherwise what delegation does is it allows a majority to solidify its
1:05:03
position through an agency and to skew the balance that Congress gave. So it’s a very powerful functional explanation
1:05:09
for what you want. And so this particular case, Gorsuch is in fact correct. So um the reason I’m an
1:05:17
originalist on this case is a the structural arguments are really strong and b there’s no prescriptive arguments
1:05:22
going against it as there are in all the article one jurisdiction cases. John, do you agree with that?
1:05:29
Yeah, I agree with both of you. I think uh there is a non-delegation doctrine and I think it would have been easy in
1:05:35
this case to say one of the things Congress can’t do is delegate the power to tax and I you know I always thought
1:05:42
there were two powers and I I I wonder what’ll happen next that uh Congress can’t delegate the power to tax and the
1:05:48
power to impose criminal punishments. Uh so I I can’t think that the court really
1:05:54
is going to be this loose on delegation given how it it’s maybe it’s primary the
1:06:01
primary legacy it will have historically will be that it sought to bring the
1:06:06
administrative state uh within the you know three you know the tripartite structure of our government and not let
1:06:12
it sit out there uncontrolled. Uh so I think it’s really I think what the court did is it took a breather. You know,
1:06:19
there’s so many other issues that it’s been deciding these last few years, right? You look back uh at the just
1:06:26
string of conservative victories. You know, we’ve talked about DOBS. You could talk about Breuin and gun rights. We
1:06:31
talk about the expansion of religious liberties. Um we could talk about the, you know, expansion of presidential
1:06:36
power. But I think this term the court, you know, was focusing on again on these cases I think of as sort of pro- family.
1:06:43
And they just wanted to call pause in its effort to bring the administrative state to heal. But I think they’re going
1:06:49
to continue in the future. I don’t think these are going to be permanent or long lasting decisions.
1:06:55
I think that I I disagree with that. Uh if you want to figure out the area of the most wretched Supreme Court
1:07:00
jurisdiction, it all the cases that have to do with the internet, first amendment, uh net choice in those cases.
1:07:08
The Supreme Court has no idea of what’s going on in any of those cases. And I think what has happened is when they
1:07:14
don’t understand something, they think there’s no particular harm in doing it the way they’ve done it. And I think in
1:07:20
effect that what you see here is a very instructive situation in which the middle three have moved left and they’re
1:07:27
not going to move back right again. And so I think in effect there’s a 63 court on this issue the opposite way.
1:07:34
Do you think though that if we had a non- delegation case the facts of which were comprehensible to the justices this
1:07:41
would come out differently? I don’t think these guys are interested in doing anything any more than Scalia
1:07:47
was interested in doing it with respect to the criminal justice system. I think they’ve thrown up their hand they’ve
1:07:52
thrown up their hands. I I see five justices who said that they want to reinvigorate the non-dregation
1:07:58
doctrine. just they’re searching about for a test and you think they
1:08:05
No, no, no. I’m saying they’re looking for No, no, no. I’m saying they’re looking for a legal test they can use to
1:08:11
right to to give the non-delegation doctrine more force than just the intelligible principle idea which is no
1:08:17
well I gave you a principle which is that delegation essentially has to make
1:08:22
sure that the delegated body has the same set of preferences uh that the delegation maybe they’ll adopt that although they
1:08:28
might find that hard to do legally it’s exactly the opposite and indeed it was done in that particular fashion I’ve
1:08:35
spent a lot of time they’re not adopting your test, but they what they’re doing is they’re not adopting any text which will stop.
1:08:41
I know for now, Richard, my point is they’re not doing it now, but in a future case, they may well find a test
1:08:47
they want to impose and they can’t. They didn’t want to do it in this term. Well, I just don’t believe they’re going
1:08:53
to do it. I think they actually This is Justice Roberts in his home base. This
1:08:58
is what he believes. This is what he wants to happen. And so unless he’s going to switch along, it’s going to be
1:09:04
63 all the way down. Um, so I mean, the
1:09:09
Supreme Court, it it does have the squishy Republican middle essentially is
1:09:16
much more pro- redistribution through administrative action than otherwise. Justice Roberts had the perfect chance
1:09:22
to do something with the NIFIB case on some of these issues about what counts as a state fund and so forth. And what
1:09:29
he did is he tortured a statute to bring it back to uh a congressional situation.
1:09:34
I think he’s hardwired on this issue. He’s had this view since 2005. And
1:09:39
you’re not going to persuade him on that any more than you’re going to persuade me, John, on the prescriptive constitution.
1:09:45
All right. Well, next time on Law Talk, we will all once again try to persuade one another. We probably can’t persuade
1:09:54
John Roberts, who may or may not listen. If he is listening, hello. But to the
1:09:59
rest of you, we will say goodbye. Thank you so much for listening. Thank you to Richard Epstein. Thank you to Johnu. I
1:10:06
am Charles C. W Cook the host. And this is a production of Civotas Institute at
1:10:13
the University of Texas Austin.

My prompt, to Grok and ChatCPT. Answers below.

Provide a summary (up to 2 pages) of Epstein’s argument for the state provided in his book, namely, his argument that state takings of property–in eminent domain and also in the form of taxes–is justified because of the existence of public good and market failure caused by the phenomenon of holdouts and freeriders, and thus certain takings such as eminent domain and taxes, are justified because they address these market failures and thus “grow the size of the pie” thus leading to a surplus from which particular victims of eminent domain can be compensated, and other takings victims such as taxpayers are compensated by in-kind restitution since the regulations or taxes address market failures and thus make society better off in general, in other words taxpayers and those burdened by regulation are compensated by the in-kind restitution of more overall wealth that results from the “taking.” And thus, that only state laws — mostly those of the minimal state or night-watchman state–are justified and most laws and regulations and taxes engaged in by the US federal government are illegitimate, because they do not actually fix a real market failure and grow the pie so that the takings can be compensated, at least by in-kind compensation, but instead destroy wealth and make us all worse off, and at the same time redistributes wealth from the shrinking economy from A to B.

Also consider Richard Epstein’s Takings Political Theory versus Epstein’s Intellectual Property Views and explain Kinsella’s critique of Epstein’s argument from an anarchist libertarian point of view and also Kinsella’s critique of Epstein’s pro-IP views and arguments which do not even pass the test of his own takings-based theory of the minimal state.

Related:

• Richard Epstein’s Takings Political Theory versus Epstein’s Intellectual Property Views
• On “Unowned” State Property, Legal Positivism, Ownership vs. Possession, Immigration, Public Roads, and the Bum in the Library

[continue reading…]

Interesting discussion from Isaac Arthur. To his credit, he doesn’t totally mangle the issues he has only a bit of familiarity with, namely money and property rights. [continue reading…]

Based on KOL443 | Abortion: A Radically Decentralist Approach (PFS 2024)

Article based on this speech, prepared by Grok (not edited or reviewed by me):

Abortion: A Radically Decentralist Libertarian Solution

Only libertarians would rise early on a Sunday to debate interest rates in a hypothetical world before tackling a topic as divisive as abortion. Unlike issues like anarchy or intellectual property—where we often find consensus—abortion remains a stubborn puzzle, resisting the clarity we bring to war, taxation, or the state’s illegitimacy. As a libertarian, parent, and former Catholic altar boy, my journey on this issue has been personal: from a Randian pro-choice stance dismissing the fetus as a “clump of cells” to a nuanced sympathy for pro-life arguments, and now to a radically decentralist approach. Delivered at the 2024 Property and Freedom Society Annual Meeting in Bodrum, Turkey, this talk proposes that abortion decisions belong solely to the family, particularly the mother, until birth, free from external legal interference. Drawing on Hans-Hermann Hoppe’s insights, Loren Lomasky’s philosophy, and libertarian principles, I argue this solution respects the fetus’s unique status, avoids state overreach, and aligns with our decentralized ethos. And, Guido, forgive me for diving into this one—I was raised Catholic, after all, with twelve years in Catholic schools shaping my conscience. [continue reading…]

I asked Grok to write this draft article for me, using this prompt:

Write a draft article as if by Stephan Kinsella (me) systematically laying out my perspective on the libertarian aspects of and case for gay marriage. Consult the attached documents [Legal Foundations of a Free Society: Core Chapters—Theory; “The Problem with Intellectual Property,” as it contains an overview of libertarian principles] and the following links. Make it as long as necessary, and include in the article any relevant links and references, as hyperlinks or footnotes. Title the article “Kinsella on Libertarianism and Gay Marriage”. [continue reading…]

Some of my tweets on the recent US Supreme Court ruling on state laws banning transgender procedures for minors, US v. Skrmetti, sparked a discussion with a friend, Juani (KOL467 | Discussing AI and IP with Juani from Argentina). Edited discussion below. See also Proxy consent vs deferred standing.

Relevant tweets: [continue reading…]

[From my Webnote series]

On “Unowned” State Property, Legal Positivism, Ownership vs. Possession, Immigration, Public Roads, and the Bum in the Library:

But in the meantime, the state ought to set rules for the use of state owned resources to provide as much in-kind restitution to the citizen-taxpayers as possible. Of course this takes practical considerations into account just as juries have to assign monetary awards to victims of torts in lawsuits even though true value is subjective and true restitution is impossible. As I wrote years ago, [continue reading…]

A few years back I appeared on a podcast, Venture Stories Podcast by Village Global, alongside fellow guest Noah Smith. ¹ Amusingly, one reason I was invited on the podcast was that they confused me with the Irish economic journalist Stephen Kinsella. ² (Also somewhat amusing was they cut my derisive reference to Alexandria Ocasio-Cortez as “Occasional Cortex.”)

In any case, Smith recently published “I owe the libertarians an apology,” subtitled “It turns out there are worse monsters than the market,” which he discusses on a recent EconTalk episode with Russ Roberts, Two Cheers for Libertarianism and Econ 101 (with Noah Smith).

ChatGPT’s summary and analysis of the discussion and article is below. [continue reading…]

1. KOL261 | Venture Stories Podcast Debating Austrian Economics, Libertarianism, and Bitcoin with Noah Smith; KOL262 | My Comments on the Venture Stories Podcast Episode. [↩]
2. See Stephen Kinsella’s I am Not. [↩]