Advisory Opinions - How to Disagree

Episode Date: August 13, 2024

In this three-guest special episode (wait, does David count as one? Are we still doing that?), Noah Phillips, former Federal Trade Commission commissioner and co-chair of the antitrust practice at Cravath, joins Sarah and David to discuss the reality of antitrust law. Then, John Inazu, the Sally D. Danforth Distinguished Professor of Law and Religion at Washington University in St. Louis, joins to discuss his book Learning to Disagree: The Surprising Path to Navigating Differences with Empathy and Respect. The Agenda: —The religious discrimination case against Dave Ramsey  —Texas can keep floating barrier to defend border —6th Circuit rejects challenges to school pronoun policy —Judge dismisses antisemitism lawsuit against MIT, Harvard's can move ahead —Minority coalitions “do not comport” with Section Two of the Voting Rights Act, federal appeals court rules —Antitrust’s loooooong history —Size and power of Big Tech companies —Learning how to disagree —Mental health as a priority in student culture —Artificial intelligence in education Show Notes: —Noah Phillips’ appearance on The Remnant Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including Sarah’s Collision newsletter, weekly livestreams, and other members-only content—click here. Learn more about your ad choices. Visit megaphone.fm/adchoices

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Visit amex.ca slash ymx. Benefits vary by card, other conditions apply. Ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger, that's David French. And okay, you've already seen how long this episode is when you clicked on it. So yeah, we've got a lot to get through.

First off, we're going to do some corrections, some quick case summaries that we'll dive into more hopefully in our next episode. Then we've got an amazing conversation with the antitrust Federal Trade Commission expert that I promised you. And it's Law Book August. So we will be talking to Professor John Inazu of Washington University Law School about his book, Learning to Disagree,

The Surprising Path to Navigating Differences with Empathy and Respect. First though, David, let's start with two corrections, one of which is highly embarrassing. So I talked about the fact of what Reagan appointees were still active circuit judges on the bench. And I said it was two on the Fifth Circuit, Jones and Smith, and two on the Fourth Circuit, Niedermeyer and Wilkinson. And I got some emails from the Easterbrook, you know, clerk family, noting that their judge is still active over there on the Seventh

Circuit, I deeply apologize for forgetting Judge Easterbrook, a giant in the law. I obviously thought he was senior status. But as embarrassing as that correction is, David, I did tell the Easterbrook clerk family correspondents that at least I didn't do what I did to the Souter family when I said there were only 11 living Supreme Court justices. Correct. That's true. At least I just thought he was senior, guys. The other correction, we were sort of talking from memory about that Fourth Circuit gun case in the last episode, David, and I had said that the majority had said something to the effect that the AR-15 had been used in every major mass shooting.

And in fact, the statistics are a little bit different and or the definitions depending on how you wanna think about it. So now I'll actually just read from the majority now that I have these lines in front of me. AR-15s are disproportionately used in mass shootings. One recent examination found that although AR platform rifles constituted about 5% of the firearms in the United States, they were used in 25% of mass shootings. But

of course, this gets to the problem of the definition of mass shootings. I was thinking of the famous large scale terroristic shootings. So that was the line I was thinking of here. That's this line. Indeed, AR-15 or AK-47 type assault rifles covered by the Maryland regulations have been used in every major terrorist attack on US soil in the past decade, citing 2015, San Bernardino, 2016, Pulse nightclub shooting, 2018, Pittsburgh synagogue shooting, 2019,

El Paso Walmart shooting, 2022 Buffalo supermarket shooting. So I wanted to be clear and not conflate those two. I believe that the sort of usually used definition of mass shooting is where three or more people are killed in gunfire. So that to me is sort of under or sorry, over inclusive of what I was thinking of, though I also think that terroristic shooting list is under inclusive of what I was thinking of. It doesn't include things like Parkland and Uvalde and things like that in that list at least.

There are giant definitional problems when you're talking about mass shootings. There's another kind of definition for something called a spree shooting or a spree killing versus it. So yeah, there's a lot of- And I shouldn't have been imprecise or vague as I was trying to talk about it. I should have just quoted from the majority opinion. So now I have. Apologies. Okay. We have so many interesting circuit cases coming out here in August, David. I thought I would run through the summaries of each one, get your quick reaction, and then we'll just come back to the ones we're most into at a later time.

So first off, a 12-6 along ideological lines from the Fifth Circuit, Judge Edith Jones writing for the majority. Yes, that's the judge I clerked for disclosure. this reversed Fifth Circuit precedent called Campos v. City of Baytown, which held that distinct minority groups may aggregate their populations for purposes of vote dilution claims under section two of the Voting Rights Act. So in this case in Galveston, they argued that they should get a majority minority district, even though the black population and the Hispanic population even though the black population and the Hispanic population alone were not large enough to constitute a majority in any given district in any reasonably configured county commissioner precinct.

This is not a congressional district. And that they should be able to combine those populations so it should be not black or Hispanic as a majority minority, but black plus Hispanic could make a majority minority county commissioner precinct. And they were arguing this was required by section two of the Voting Rights Act. So 12.6, the Supreme Court reversed their precedent on this and said, no, there's no adding together.

The en banc, 12.6, the en banc court, not the Supreme Court. Correct. Yeah. Yeah. You know, this is an interesting case because with all of these voting rights cases, history really, really matters. And so, for example, when the Supreme Court was walking through the Alabama voting rights case recently where it struck down a voting map on the basis of dilution, the history of Alabama and the extreme racial polarization

of voting in Alabama really mattered to that analysis. And so I think that when you're getting to these claims now, it really is going to dive into the history. It's not just gonna simply be that, well, black and Hispanic voters tend to vote in a similar direction in a partisan way. And so therefore, what you're doing is you're aiming for black or Hispanic voters as a proxy for partisanship, but you're really aiming on the basis of race. Well, you might be able to win on that, but it gets really, really difficult because partisanship, you

can do a partisan gerrymander. And if the evidence is you're doing a partisan gerrymander, it gets really hard. But if you said, well, we have 85 years in this particular precinct of history or this particular state of history of intentional race-based discrimination, both against black and Hispanic voters, in a way that has diluted their vote share for a very long time on the basis of race, and you can document that, then you're going to have a chance here. And I just think that these voting rights cases are going to decreasingly move away from just a rote. Does this disproportionately impact black or Hispanic voters? And increasingly towards a historical

analysis that says, what's the history of the way black or Hispanic voters have been treated in this state? So that's just my general view of these cases overall. All right. Then we had an 11-7 on Bonk decision also out of the Fifth Circuit. Judge Willett writing for the majority and this was reversing the preliminary injunction that blocked Texas's installation of the thousand foot floating barrier in the Rio Grande to deter illegal border crossings. So it's reverse injunction that blocked, right? So basically Texas can continue to have their floating barrier in the Rio Grande, according to the Fifth Circuit. This is preliminary though.

This is only at the injunction phase, but obviously made some news. Yeah. I mean, this case is going to be interesting to me. It is obvious that if the federal government has a specific kind of approach to a specific section of the border. So for example, the federal government built a wall, the state government couldn't tear it down. But if the federal government decided, okay, for whatever reason, this segment, we're going

to not have a wall on purpose as part of an overall, I don't know what kind of strategy, can you put something up? Okay, well, it's same analysis would seem to apply. If they put something up, the state couldn't tear it down. If the federal government intentionally didn't want something there, could the state put something up? Well, the state's not gonna be able to trump

explicit federal plans, but what if there isn't a plan? What if there's a void? Then it seems to me that the state can move in in that circumstance and then the federal government can trump it, but in what form, how can it trump it? Can it just trump it by saying, get that down, or does it actually have to do something

more formal than that? It's a fascinating issue and it goes, a lot of this stuff goes back to the Obama-era Arizona case. How much more can you do as a state on top of federal immigration enforcement? How much more can you do as a state extra and above? And under that precedent, the Arizona precedent, the answer is not a lot extra. But yeah, again, we'll see how this goes. I'm expecting this to go to the Supreme Court, but we'll see. All right, so we've got a two-to-one panel opinion

out of the Sixth Circuit, also pre-enforcement, by the way. So this is what policy will be in place while the litigation is pending. This was a policy, a school policy, that prohibited students from repeatedly and intentionally using non-preferred pronouns to refer to their classmate. The majority held that the policy could stay in place.

Dissent by Judge Batchelder, saying, "'Nope, this is pretty core First Amendment stuff here.'" David, I feel like you may want to dive into this one more in the next episode. Yeah, I think this is worth a really, this one is worth a longer conversation, not to say the other two aren't,

but I think this one, given our free speech emphasis, and also the collision between free speech and anti-harassment law, this is about as a salient an issue as you're going to find right now in the U.S. on the collision between free speech principles and anti-harassment principles, especially in school. Including this interesting question, Sarah, that I often think of in these pronoun discussions. If I'm talking to you as a human being, I can't look, I don't think I've ever used your pronouns when addressing you. That'd be weird if you did.

It would be weird. So it feels like an enormous amount of the time, the pronoun discussion is not going to be to the person. No, it's a third party discussion. It's about the person. Yeah. And how am I harassing the person when I'm not talking to the person, but I'm talking about the person, perhaps out of their earshot. I get it on the in their earshot, but there's a lot to unpack here. So yeah. All right.

Well, let's continue in the Sixth Circuit. This was a unanimous decision. Judge Bush, friend of the pod, writing for the panel. I'll just read to you this description. In 2020, during protests led in part by the organization known as Black Lives Matter, plaintiff Eric Noble made the mistake of sharing an insensitive meme on his personal Facebook page. Only his Facebook friends, who numbered less than 100, could see his posting. He took down the meme less than 24 hours after it went up and after his mother had advised him that he should do so. But it was too late. Some of Noble's Facebook friends who worked with him at the Cincinnati and Hamilton County Public Library saw the post. They complained to the library.

After an investigation, Noble's bosses did not think his quick removal of the meme was good enough that he should be forgiven. Instead, the library terminated his employment as a security guard. There is no evidence that anyone outside the library ever saw Noble's short-lived meme, and there is no proof in the record that he ever did anything at his job, either before or after the unfortunate post, to cause trouble with his co-workers or library patrons. Noble alleges that the library's termination of his employment violated his First Amendment rights. We agree.

So again, you're sort of seeing this canceled culture coming to court, David. Yep. And that's, I mean, yep, that's the right, that's the right response here. If you are a public employee, you are, and you're not on the job, so the Garcetti precedent doesn't apply,

you can speak up on a matter of public concern and it doesn't have to conform with the manner or the method that your public employer wants you to speak. And then when there's no evidence at all of workplace disruption, yeah. This one was a difficult, this one was a difficult for the library to win. All right, staying with the sixth circuit,

we now have another culture war case. Again, I will read from the majority written by Judge Boggs. Okay, so a guy named Amos is suing his former employer, Lampeau. Lampeau would not allow Amos or other employees to work from home and actively discouraged any preventative measures, including social distancing and masking during COVID. Amos says that Lampo's policy was that prayer was the exclusive way to prevent COVID infection and that anything else

showed a weakness of spirit and was against the will of God. Employees that did take precautionary measures were mocked and derided. Amos alleges that he was criticized specifically for social distancing and wearing a mask. According to him, such acts were consistent with his own deeply-held religious beliefs, including the golden rule of doing no harm to others and promoting the safety of his own family.

Distilled, Amos says that Lampo maintained a cult-like attitude, and at Ramsey's direction, the boss of Lampo, would regularly and aggressively promote their own religious beliefs against COVID-19 precautions while also demeaning plaintiffs' religious beliefs, supporting protective measures to care for the well-being and safety

of his family and others. In July 2020, Lampo fired Amos for, quote, lack of humility, and because Amos was, quote, not a good fit because he would stand off to the side all of the time. Amos says that his termination was based on his failure to submit to Lampeau's religious practices and his expression of his own religious beliefs with regard to COVID measures. Unanimous panel finding that he gets past the motion to dismiss stage and can present evidence that this was termination based on religious discrimination,

David. Yeah, this case is interesting for a couple of reasons to me, one sort of, one legal, one cultural, so cultural slash political. So the legal reason it's interesting is, so Dave Ramsey is very big in evangelical Christianity, financial advisor, got a very popular talk show, runs a big business here in Middle Tennessee, not far from a house,

you drive by and you can see a Ramsey building or Ramsey campus, it's huge. And he runs a for-profit business as if it's a church. So it is a for-profit business, it's not a nonprofit, but he runs it and imposes all kinds of religious requirements on his employees. And so this is not the only lawsuit pending around that. And the question is, how much can a for-profit company

run itself as explicitly as an explicitly Christian religious entity? And there's a lot of people who cheer on Dave Ramsey for this, they think it's a big, he's making a sort of religious liberty argument that he gets to do this with a for-profit company and that the nondiscrimination laws shouldn't apply to him.

And so this could progress even more, but it's an interesting cautionary tale, Sarah, because I know of people who say, yeah, a for-profit company can become religious and make religious distinctions and impose religious requirements on employees. Well, here you have another Christian who has a different sort of worldview

about what Christianity dictates as a response to COVID, and he's out. And so this decision isn't at all surprising under the law because under the law as it's been for some time, when a non-discrimination law collides with the religious liberty claim in a for-profit business, the non-discrimination claim is going to prevail unless, you know, and 303 Creative and Masterpiece Cake Shop are different because the issue there wasn't status-based discrimination. It was much more, are you going to make the company speak in a certain way?

But this is religious discrimination against another religious employee. And I think it's an interesting case to show that be careful what you wish for. If you are in this camp that says Dave Ramsey should be able to run his business like a church. If you give that right to other companies, to other for-profit companies, you may not like the outcome. You may not like the outcome because what's gonna end up happening is you'll just see a bunch of for-profit companies

engaging in purges of people, including religious people who aren't with the program. And look, to some degree, they can do that if it's non-religious discrimination, but here engaging in explicit religious discrimination for a religious purpose as a for-profit company. Yikes. Yikes. I think this is a fascinating case.

Okay. Last thing here, and this we definitely are going to have to save for a future episode. This is the district court finding that the case against Harvard on whether they basically maintained a anti-Semitic environment on campus can move forward. There is enough evidence that they did, in fact. But interestingly, David, as you pointed out before we started the show, they did not for MIT.

And it's not that there wasn't blatant, horrible, anti-Semitic behavior on MIT's campus, similar, sometimes worse than Harvard's. But each time that MIT would do something to try to prevent that behavior from repeating, and Harvard embraced it? Yeah, so you read the MIT case side by side with the Harvard case, and you're

going to see terrible things that happened to Jewish students at both campuses. But in the MIT case, what you're going to see is MIT kept trying to do stuff. And the bar for a Title VI claim here is deliberate indifference. In other words, you knew stuff was happening, were you indifferent to it?

Or did you do something about it? And even though MIT's responses weren't always as effective as they wanted them to be, they did something. They responded. Harvard was different. I'll just read out loud. And we really do need to dive into this, because this is going to be a big issue in about two weeks on campus,

especially if the Northern front kicks off in Israel. But it says, but as pled, Harvard's reaction was at best indecisive, vacillating, and at times internally contradictory. For example, the day after Dean Ball emailed all Harvard Law students that Caspersen Lounge was limited to personal or small group study and conversation. Demonstrators hosted a vigil for martyrs in the Lounge

without any pushback from law school administrators. Rather than call a halt to the vigil, Dean Ball attended it. Outrageous. Wow. Wow. Well, that will be fun as that lawsuit continues. We can talk more about that.

But David, we need to learn some antitrust law. Is this thing real or not? Ha! I don't know. Are we going to get an answer or not? Stay tuned. And we'll take a quick break to hear from our sponsor today, Ethos. Would you fight a tiger to keep your family safe? Run into a burning building?

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To learn more about third-party litigation funding, visit apci.org. Did we not promise you, the antitrust expert of antitrust experts. Joining us right now, Noah Phillips, former Federal Trade Commission commissioner, that's sort of odd actually, and co-chair of the antitrust practice at Cravath, also known as the Death Star. This is one of those things that you go into law school and people are throwing around the word Cravath.

You have no idea what this word means. You think it's like a Latin legal term. And then it turns out that it's simply code for the fanciest law firm in America. And also I will mention former chief counsel to John Cornyn, my first campaign boss. So Noah Phillips, thank you for coming to explain how antitrust is not a real thing.

And just before we start, just to be clear, everything you say on this podcast is attributable both to Cravath and all of your clients. And if you could tell us which client is being billed for this, et cetera, that'd be helpful. So I think, well, first of all, Sarah, David, it's great to be here with you on everything. Sarah just said wasn't true with a few exceptions. This is not what I'm going to say is not a trivial demand to my firm. I mean, I'm not billing this, but it is great to be here with you and to tell you about why antitrust law is a real thing.

I should also note, I understood the Sobreke Death Star to refer to the building and Cravath has since moved. So we are no longer the Death Star. It did refer to the building, but sort of what's that? There's that English term, synecdoide, when like something stand like boots on the ground. Like, technically that refers to boots, but it like actually refers to the people. Like that's what I think of the Death Star. Yes, it referred to the building, but it was like a stand-in for all of Cravath being, you know, the bad guys. It had never occurred to me until now it was about a building. I always thought it was about that collection of Imperial stormtroopers over at Cravath.

Isn't there a famous, sunny bunch, YV-L about how like actually the Empire are the good guys? Yes. Yes. Yes, yes there is. We don't need to litigate this now. Literally litigate it. I'm on a Dispatch podcast and you know, Star Wars comes up.

Yeah, it's true. Yeah, it feels fair. Okay, so let's start at the very beginning here. I obviously have felt for many years that antitrust is not a real thing. Sort of like international law, this is just made up whatever you wanted to be, and a whole bunch of lawyers got together and tried to make Fetch happen. And unlike in Mean Girls, they actually did make fetch happen and convince everyone that this was a real part of law. You being the co-chair of the

antitrust practice, you sound pretty unbiased in this fight. I'm totally unbiased. So I think I have to disagree with that pretty strongly for a number of reasons. The first thing is this, strongly for a number of reasons. The first thing is this, a lot of the laws that I guess you consider to be more real laws are way, way younger and way more new than antitrust law. So we first get federal antitrust law in the United States in 1890, that's the Sherman Antitrust Act, but that's not the first, right? We've got state antitrust laws that precede it. We've got common law going way back to old England. We don't get a lot of words in that statute, but the doctrines and their origin go way back to before the founding of the republic. So it is a real thing. And it's a thing that courts were enforcing. They were even

enforcing it before the statute and certainly after the statute and over the 134 years of legal development since the Sherman Antitrust Act, we had had the development of quite a legal doctrine. I'll also add the following. Well, I'll add two followings. The first following thing is that antitrust is kind of a form of tort. And tort law is another example of a doctrine that has developed through judicial decisions over a very, very long period of time, not just including American courts.

And I'm not referring to international law, but I think we all accept that the founders looked to Blackstone and a lot of the state laws sort of captured the development of English common law over time. That's thing number one. Thing number two is both in the case of the Sherman Act and also me in the case of subsequent legislation, in particular under President Wilson, we have had the development for a statute of antitrust law. And so I'm going to disagree on those grounds.

I would also add, I would argue, that antitrust law has had quite an impact. So not only is it real in the sense of like, it's real in the way that we think about laws, it's also real in that it has an impact on people's lives. So when Sarah says it's not real, I don't interpret her as saying that anti-tuss trust law doesn't exist. I interpret her more as saying, this is mostly just judicially made up in the absence of clear statutory standards and guidelines.

So it's what a hundred and some odd years of intermediate scrutiny look like, which would be a hundred and some odd years of the judge decides. So Sarah, would that be steel manning year? There is no antitrust law position or is that? Yes. there is no antitrust law position or is that? Yes, and we'll, you know, a question we're going to ask is what type of challenges could the Sherman Act or the Clayton Act ever face or is this just in a post-Lochner, post-Privileges and Immunities era, Congress can just do this because this feels like an unintelligible principle to me.

Okay, so let me speak to a number of those issues and it's a compound question. So as a lawyer, I have to object. Point number one, the Sherman Antitrust Act is pithy, right? The core of it is two different provisions. They don't have a lot of words, the core of the language is restraint of trade. And so, I certainly understand why someone would look at that and say, hey, Congress wasn't doing a lot of work here, and courts have been writing a lot of words since then. And I think as a descriptive matter, on some level, that is true. What is also true is that back in the day before we had laws for everything, before we had tons and tons of laws and regulations that built upon those laws, Congress did tend to write in a more pithy way. And so certainly the Sherman Antitrust Act is not

alone in being one of those laws. And I think you could point to aspects of a constitution that also would fall into this bucket where just a few words were written. And then that was left to judges to develop over time. Leave it to an antitrust lawyer to compare the Sherman antitrust act to the U S constitution in majesty. I got that from my antitrust professor back in law school, whose opener on the first day of class was like, the way this works is kind of like how a lot of constitutional law has worked. And I understand that there are quibbles with that, but that has been the way that

it is. Let me speak to the Clayton Act though, because there's a story here. And the story is very much a reaction to, I think, what you, Sarah, and you, David, are saying, at least in terms of describing Sarah's view. In 1911, the Supreme Court upheld the Justice Department's attempt to break up Standard Oil, which you could think about as the like original gangster trust. If there's any trust, although there were many trusts that Congress had in mind in adopting the Sherman Antitrust Act of 1890, it was Rockefeller and Standard Oil. And the government ultimately brings a case, syndicates, gets litigated, and it goes up to the Supreme Court, and the Supreme Court upholds the dissolution of the Standard Oil Trust. What they also do in that decision is they declare what we now call the rule of reason.

What they say is, well, the statute says restraints of trade, but like any contract is a restraint of trade, we're only going to bar undue or unreasonable restraints of trade. And one of the things that people start saying, even though the government won against a very unpopular company at the time is, hey, it looks like you courts are grabbing power. And Congress has two responses to this. The first response is to create a set of more specific rules, and that is the Clayton Act. So if you read the Clayton Act, which for your listeners who might care about these things is among other things where we get modern merger law. But the Clayton Act is a series of more specific proscriptions, right? Where Congress is saying, all right,

courts, you're going to do what you're going to do with the Sherman Act, but here are some things, some specific kinds of conduct about which we care. So that's congressional response number one. Congressional response number two is they create an expert agency. And that agency is going to advise the courts, it's going to advise Congress, it's going to advise businesses on what and what is not, and they pick a term that's a little broader than the Sherman Act, an unfair method of competition. That federal agency is, wait for it, the Federal Trade Commission on which I used to sit. So you're not entirely wrong that there have been worries from going back over 100 years that courts

are kind of doing what courts want to do. And Congress has responded to that over time. Let me come to your constitutional question. We got the Sherman Act in 1890, it's 2024. That's 134 years of the law being resistant to objections like those, with the exception of one category that I think is very much still something that can worry courts. The Sherman Act is also a criminal statute. And when you're talking about a criminal statute and going to jail and your life is on the line, then courts tend to be more skeptical of vagueness. They tend to adhere to something that we call the rule of vanity. And so it has long been the view that if the

Justice Department is pursuing someone criminally under the antitrust laws, specifically under the Sherman Act, they have to be going after conduct that is very clearly illegal. One thing that is interesting to note, at the beginning of his tenure at the Justice Department, Jonathan Cantor, who is the Assistant Attorney General and the head of the Antitrust Division, said that he wanted to explore criminal applications of Section 2. So there's Section 1, which is restraints of trade, and Section 2 is monopolization. Section 2 tends to be a little less well understood, and there's always been a debate

about how you apply criminal law in that context. So that is an area where I think courts have viewed with some skepticism too broad an application of the Sherman. You also said the magic words, intelligible principle, although I think you've said unintelligible principle. I tend to think of that phrase in the context of the delegation document, right? words, intelligible principle, although I think you've said unintelligible principle. I tend to think of that phrase in the context of the delegation doctrine, or the non-delegation doctrine, which the court used in the New Deal to strike down things like

the National Industrial Recovery Act, which used the code, had the phrase codes of fair competition. The general rule, although it has been rarely enforced since the New Deal, has been that Congress can't just delegate to agencies the power to make rules without an intelligible principle. And there's a lot of talk, as you guys know better than I do, about the non-delegation doctrine. For the most part, that hasn't been relevant to antitrust law. But the Federal Trade Commission has in recent months started to make rules, make antitrust rules. They're trying to ban all the non-competes in America. And one of the arguments that plaintiffs who are suing to stop this rulemaking are making

in court, echoing complaints I made when I was a commissioner, is that the use of the FTC statute to make rules like these violates the non-delegation doctrine because unfair methods of competition is not an intelligible principle. Okay, so that's super fascinating. The thing that has won me over the most or that I'm most intrigued by is this tort comparison and that antitrust law as common law goes back to the founding and before the founding because this is going

to then mix into some text history and tradition potentially. My next question is on how antitrust law has interacted with the conservative legal movement. And of course, I'm thinking here about Robert Bork. Robert Bork is like the antitrust guy, and he's also going to be the father of originalism in a lot of ways. And then of course, he's going to be nominated to the Supreme Court and Borked. And what we know about the current justices on the court and how antitrust vibes are going. Okay. It's funny that you use the word vibes because there's a lot of vibes right now in

the press about where a variety of things are going. Also, in my argument as antitrust is all vibes, no intelligible principles. So yeah. So respectfully disagree. Let me take that in a number of different ways. So, Borkie is one of the most famous figures, not only in constitutional law and originalism, but also in the antitrust. And if you ask my dad, what he told me years ago, his view is that Bork got Borked for antitrust, not for the other stuff. Ooh, hot take.

Hot take, but you can have David Phillips on a different podcast. What I would say is the following. I think that Bork, there's a commonality in Bork's critique of antitrust law when he is writing about it and of constitutional law when he is writing about. when he is writing about it, and of constitutional law when he is writing about it. So if you look at what Bork writes about both, what he sees is, for lack of a better way to put it, kind of a hot mess, things that don't make a lot of sense. And Bork is looking to add clarity to both constitutional law development and antitrust law development. And I think Bork's methodology is similar. He's looking at similar kinds of things.

Bork is not the only person who's involved in a change that happens in antitrust law beginning in sort of the late 70s. Bork is one of a number of scholars who are both lawyers who don't see any coherence in the application of the law, including by the Supreme Court, and in particular in the context of mergers, but also other kinds of conduct. In fact, there's a famous Supreme Court dissent that says the only principle in antitrust in merge law appears to be that the government always wins. But there are other people who are looking at antitrust law who share his view. And they're also looking at a lot of the things that courts are condemning under newly developed doctrines at the time. And they're saying, wait a minute, why are we calling this

illegal or why are we calling this illegal in this way? So at the risk of geeking out a little on an already somewhat nerdy podcast. Somewhat nerdy, we're all the way nerdy. I'm a little- How dare you, sir, call us only somewhat nerdy. That is an act of aggression, but continue. So they're basically two, wait for it Sarah,

buckets in anti-trust law. There is what we call per se, which is conduct that is so clearly bad, we don't need to spend a lot of time with it. Think about it like dividing markets or setting prices. Right? To be clear, I mean, competitors dividing markets or competitors setting prices.

And then there's the rest. And that is governed by, back to our standard oil case, the rule of reason, where what we're really doing is like a searching look at like, how does the market look? What is the conduct? What is its effect? What are its justification? Vibes. No, those are not vibes.

Those are facts. And some of those facts there are measurable. Vibes. No, those are not vibes. Those are facts. And some of those facts there are measurable. Vibes. Okay, let me back up and ask a question that has been a question for me for some time. And that is how much of antitrust law is focused on anti-monopolistic doctrines regardless of effect, or how much of it depends on a negative effect for a consumer. Because this has stumped me all the way from, I'm old enough to remember when Bell Company was

broken up into all the baby Bells, right? And I remember being stumped, my very young self was stumped as to how this was helping me. Because before we had very cheap landline telephone service and after we had the same priced landline telephone service that went to, I believe it was Southeastern Bell instead of just Bell, I believe it was Southeastern Bell instead of just Bell. I can't remember exactly.

But it was a huge deal, massive breakup of a conglomerate, and I was stumped by it. Without going into future, some of the present cases, how much of this is really related to consumer protection versus just conceptually, we don't want monopolies? So it's a great question. Let me start with the kind of standard answer, which picks up right where I left off in when I was sort of beginning to explain the buckets of antitrust law. And then I'll come to a big debate that's going on right now. This debate is going on literally with the heads of the antitrust agencies and a way in which the Biden administration has been trying to change antitrust from where it has been for a long time.

So I was beginning to explain that there's like per se generally bad. We don't need to look at we need don't need to think a lot about it. We kind of know that and there's rule of reason, which is everything else. In per se, you generally don't need to show effects, like to get to per se liability. We're just gonna assume that if you get together with your competitor and you decide, here's what the price of our product is going to be, we're done.

It doesn't matter even that you've got other competitors, right, so we don't care about it. But under the rule of reason, for all the rest of the stuff that isn't illegal per se, we are asking about a sex. And this comes back to Bork. It brings us back to Bork because the phrase that Bork used to describe this was consumer welfare. That antitrust law was at writing, not at the founding of the Republic, although again, there were these antecedents under English common law and there was developing state law

that it was concerned with the welfare of consumers. Why does this matter? The other way to think about it is the welfare of competitors. What are other companies doing? And if you take the example of raising prices, which is a sort of classic effect that a monopoly can achieve, if you raise your prices, that's bad for consumers because they're paying more, but it's good for your competitor, right? Because your competitor can underprice you.

Flip the hypothetical. If you lower your prices, right? That's good for consumers, but it may be bad for your competitors. And Bork was concerned, and many others too, not just originalists by the way, with doctrines or the evolution of doctrines that condemned conduct that was clearly supportive of competition, like you were raising your price. And so they wanted to limit, for example, what we call predatory pricing under antitrust law. One of the big things that this change in antitrust thinking, again, really beginning in the 70s, accomplishes, and we're going to get to the Supreme Court, Sarah, I promise you, is they start looking anew at some doctrines where the courts condemned things per se with a lot more thought and with the benefit of a lot more thinking

and study, and they start applying the rule of reason to those docs. So if you look at the curve of Supreme Court case law on antitrust, even recently pro-plative case law, you will see the court saying that we are narrowing the scope of what is per se banned and treating the rest under the rule of reason because David, we want to see those effects. We want to know that people are actually being harmed. So let me come back to this debate that I was alluding to in the public and at the antitrust agencies. The big thing you hear from antitrust reformers today is that they want to go back to the period before consumer welfare.

They think that narrows too much the ability of government to go after, in particular, corporate power, and they don't want to have to show effects. And so, for example, if you look at the FTC's policy statement from 2021 about the scope of Section 5, which is the FTC's authority from 2021 about the scope of Section 5, which is the FTC's authority in terms of antitrust, it takes out effects. You no longer need to show effect. So David, doctrinally the answer to you is for most things, yes. Sarah, the answer to you is what difference did Bork make? That's part of it. And again, Bork not remotely the only person here. There was like the Chicago school, there was also the Harvard school and they were there too. But this concept is all of a sudden controversial.

And there are people who want to push away from that. Now at Joe Fresh, get 20% off children's active wear only until Wednesday, August 14. Shop smart with one cart and check everything off your back to school list all in one place. Now that's some smart shopping. Conditions apply. See in store or joefresh.com for details. So just to be clear, to talk about the Google case, for instance, and potential effects, just to use an example of that, an effect of Google being found to be a monopolist, and I just mean potential, right, just to highlight the point.

An effect could be if Google can't pay Apple for, you know, split the advertising revenue, Apple's therefore not getting that revenue stream. They have to charge more to consumers who will then still use Google because that's everyone's preferred search engine. And the judge himself found that it was a better search engine.

So like, to be clear, I could be paying more for my iPhone for exactly the same product on my iPhone and we'll all cheer that it was a great win for antitrust law and lawyers, I guess. So stepping away from- Sarah, your questions are the best. Let me say the following. There are two different effects that we're talking about.

One is in order to predicate liability, do you have to show harm to consumers? Clearly not. The other question is what remedies are we adopting to solve these problems and what effect will those remedies have? Okay, okay. Yeah. And that's an important distinction.

And it does raise a problem that enforcers think a lot about, that courts are compelled if they get to the end of the day to think a lot about what is it that we want here? What problem will it solve? And it gets us out of what I sometimes have referred to as kind of the underpants gnome problem of talking about antitrust. So tell me more about the underpants gnome. So the underpants are from South Park and they steal the underpants and then something happens and then they generate profits.

And we don't know quite how they get the profits. There is a lot of appetite for bringing antitrust cases. And sometimes you even hear some people talk about the point of the case is just to bring the case and we've gone after the right folks. And maybe even we've distracted them and that has allowed others to flower up and bring competition.

You sometimes hear this story told in terms of Microsoft. And it was, even if it wasn't the effect of the government's case on a legal basis, it was distracting and that allowed Google to arise. That's a claim like Tim Wu talks about. That is not a good thing to me. That you don't even have a winning legal case, but the government was able to use its coercive power

to distract a company. That's insane to me. Okay. So they won on the case, but not on the remedy, and then the government, so is what happened in the Microsoft case. I think that I agree with you. The point of any aspect of law enforcement

should not be harassed. And that antitrust enforcers, as well as plaintiffs, right, because they're private suits too, should be thinking very carefully about like what the remedy is that we want. That is an important part of the consideration at the end of the day. And something, just as a matter of editorial opinion, I do think a lot of the discussion over the last five years about antitrust has been missing. But doctrinally, right, to predicate liability, you need to have a fact. And yes, courts are forced to grapple with how is the remedy going to look. I'll tell you a story from history, which is always interesting to me. So after

Standard Oil was broken up, what happened to oil prices? They went up. Oh, perfect. What happened to oil prices? They went up. And one of the first things, so that's 1911. And what is one of the first things the new FTC, which opens its doors in 1915, goes to study? Why is the price of oil going? So remedies are a really important discussion in antitrust. And if you look at what's going on in litigation these days,

there are courts, soon in the Google case, the court will be grappling with this too, there are courts that are grappling with, okay, we've reached the end, we have liability, what's the solve? To be clear, in certain arts of antitrust, this is much easier. Like if you're talking about merger enforcement

where the thing hasn't happened, you block the merger. Like that's often the remedy that the government wants. But as you get into other kinds of conduct, it can be more complex. So I'm curious about the concept of antitrust as disguised retaliation for other perceived problems. So for example, you've seen the legislation, this is not an interest legislation,

but you've seen legislation dealing with TikTok and its proponents say, this is purely about its ties to China, this is purely about, are we gonna permit a massive social media company to be under the control of arguably our chief geopolitical rival? The defenders of TikTok say, no, no, no, no, this is about, you don't like the algorithms in TikTok.

You don't like that TikTok has got a lot of pro-Palestinian speech, or you don't like that TikTok's got a lot of MAGA speech, depending on who's motivated to try to get rid of TikTok. So this is really about speech. And there's an interesting element that's arisen in our fights over big tech, which is how much antitrust action is genuinely big tech has an antitrust problem. And how much is we don't like big tech and we don't like the way they run their companies. Look, we've got this antitrust club hovering around in the background.

Is that an actual viable concern, or is the wave of antitrust litigation just genuinely more about the big in big tech than sort of the politics of big tech. Keeping in mind that consumers of course pay nothing, so it'd be a little hard to pay less. I want Twitter to pay me. Let's unpack a few things here. I think the first thing I would say is, as you know, Congress does things for lots of different reasons. And Congress is not governed in the sense of like what motivates it. There are limits constitutionally

to what it can accomplish, to be sure. And in the context of the legislative process, we debate the wisdom of lots of statues from a prudential point of view. But Congress isn't like bound in adopting antitrust laws to adhere to any principle. They can pass what, not whatever laws they want, but they can pass a lot of laws. Whether what they are passing is antitrust is kind of a, you know, a question for academic debate, I suppose, but if they pass a statute that says you've got to divest TikTok, that's what they're doing and why they're doing it isn't terrifically important. That actually dovetails, of course, with a very interesting issue in the development

of constitutional every other kind of law over the last few decades, which is we used to do a lot more or courts used to do a lot more purposive analysis. We are going to interpret this statute in light of the purpose we saw Congress is having as opposed to the textualism that for the most part courts apply today. So what Congress is doing is what Congress is doing, whether they call it antitrust or not. I do think that if you look at the course of American history, there have been times where people have thought about antitrust or look to apply antitrust for reasons that aren't animated by clear antitrust concerns or what an antitrust expert, let's say, would consider a valid concern under antitrust because, let's say, would consider a valid concern under antitrust

because the law only goes so far. One would hope that enforcers bring cases that are well predicated in the law. Having been an enforcer, that's certainly what I tried to do. And sometimes I didn't agree with the cases that we brought. One would also hope, of course, that courts, right, evaluating things are evaluating them in terms of the law, not in terms of whatever animated the suit that was brought. There is a long, I don't need to tell you, there's a long stream in, I think, American history of suspicion of things that are big. And that also applies to the private sector. And I do think if you look at the politics surrounding, for example, the adoption of the Sherman Act, they were concerned about the trusts partially for reasons that are very cognizable under antitrust law, you know, cartel style behavior. But also,

they might have been concerned about other things as well. What's important to my mind for the rule of law is, you know, that when the cases are brought and when the cases are adjudicated, that they have a sound basis in what the legal principles actually are. Let me come to sort of big tech, whatever that means. And if you want to hear my opinion on why that phrase is not particularly helpful as a descriptor, go to the other dispatch podcast that I did years ago with your colleague, Jonah Gold. Never heard of him.

Never. Sarah, he does that, our spin-off podcast. Yes, exactly. Yeah, you should listen to it. It's actually really good. Oh, good for him. Large companies are certainly not immune from antitrust law, and there will be times when

large companies do violate antitrust law. That's part, even though the government didn't litigate it to the end of remedy and win there, they did win on liability in US versus Microsoft. And I, for one, think that's a sound decision. And so I think it's not quite fair to say that there's no cause at all for concern. What we want to make sure is that law enforcers and that judges are thinking about whether the conduct violates. Now to be clear, as I've just alluded to, people may have different views about what

violates the law and that's a fair discussion. But I don't think that the whole discussion is utterly outside of the scope of antitrust. Even if there may be some who may be motivated by things that are not consistent with where the law is. Okay, last question. If I'm a law student or a potential law student and I'm hearing this podcast, I think Noah Phillips sounds pretty freaking cool.

And I think he sounds like he's having a good time in his legal career, unlike a whole lot of other people. And I'm also hearing that Robert Bork was super into antitrust, that Justice Gorsuch taught antitrust before he went on the court, that Chief Justice John Roberts was trying antitrust cases back in his private practice days.

And it kind of seems like people who enjoy the law and are really smart and have nerd senses of humor are gravitating to antitrust. And obviously Sarah thinks antitrust is all vibes. Maybe that's why they're having such a good time because they're not tethered to anything whatsoever and it's all made up. But I'm curious if you have a pitch to law students of why antitrust is the place to be.

So I just wanna be clear, law students, there are lots of areas of law that may be very exciting to you. If you listen to this podcast, you probably don't spend as much time thinking about antitrust as you might about say, administrative law or constitutional law or other aspects of the law, each of which I personally also find fascinating. I find antitrust law to be interesting for a variety of reasons. I think it is a deeply intellectual endeavor.

I think that it over time has embedded economic concepts, which are independently interesting. But above all, antitrust law is about how business operates. And, you know, a lot of people who come to law, a lot of people spend time in law, spend endless days, months, years thinking about how the government operates, how the structures of government are set up to achieve certain executives, incentives to achieve certain goals at the end of the day. That's true for

business as well. And to be clear, this is not just antitrust law. If you talk to takeover lawyers who corporate lawyers who deal with the Delaware law, this is true there as well. But understanding how businesses work, why they do the things they do, what the laws are that regulate them and the outcomes that we get from that law, I find to be terrifically fascinating. One of my favorite things I will say when I was a commissioner and still today in private practice is a matter comes in front of you. A client is asking for advice and you have to understand, okay, why are you doing what you're doing?

What is the justification? I mentioned that as sort of a prong, how we think about things under the law. What is the justification for this conduct? What negative effects might it have? Those to me are fascinating questions and antitrust law allows you to spend a lot of time thinking about it. I mean, David, I get this is just anecdote, but I feel like I have a lot of anecdota.

And I feel like antitrust lawyers and bankruptcy lawyers are the happiest warriors in private legal practice. And it's interesting, cause what you're describing Noah actually is also exactly what bankruptcy lawyers say that they like sort of the economic getting into the structure of how businesses can thrive and operate, and that they find that to be intellectually engaging. And I kind of say, David, as much as I think constitutional lawyers, for instance, get all the glory, I wouldn't rank them as the happiest lawyers that I know

at all. So I would think that, Sarah, constitutional lawyers have the problem that unless they are at an extraordinarily rarefied air, there's not a lot of hiring at big firms for constitutional lawyers. And so your compensation as a constitutional lawyer is the joy of the law more than necessarily the financial aspects of the joy of the law. But antitrust lawyers and bankruptcy lawyers get to have their cake and eat it too. They get to absolutely dive into a fascinating area of the law that has real consequences for how real people live their lives and to be compensated in a manner

commensurate with their contribution to American economic life. And so maybe that's maybe that's why Sarah. Maybe, but speaking of which we're preventing Noah Phillips from getting on his vacation. He has actually taken the time to do this podcast as he is heading out the door. So Noah Phillips of Cravath, formerly Death Star. HE LAUGHS Thank you so much for joining us. I hope you will be a frequent guest on the pod every time antitrust vibes rear their heads.

Yes, thank you, Noah. Sarah, David, thank you so much for having me. This was fun. Go enjoy your well-earned and compensated vacation. All right, David, I'll tell you, the most important thing that I learned, the most sort of effective pushback to my antitrust is not real, was Noah's argument that in fact antitrust law went back before the founding

in sort of common law forms. And so I need to narrow my beef to the intelligible principle problem that I have with the Sherman Antitrust Act. You know, the thing that I thought was interesting was, yes, it exists in the sense that, for a long time, judges have been exercising judgment over what is antitrust. And it feels to me like the Sherman Antitrust Act is just a federal legislative version of saying,

yeah, keep doing that. Just like, whatever you guys think. Whatever you think is fine. We want antitrust law to exist and we just trust you to keep on making it. So. All right. Well, next up, we need to talk to Professor Inazu about his amazing book for our August book series. And David, you recommended this book. I'm so glad you did.

And David, you recommended this book. I'm so glad you did. It's perfect for our moment, but more so, as you will hear, it's perfect for law students. David, it is time for our special book guest. And this was your guest that you picked, but I am now book crushing on him, I think harder than you are. Yeah, I mean, I'd never even heard the term book crushing

before you just said it. So yeah, I think it's safe to say you're book crushing more, but I love the book. I love the book. And the reason why I brought it in, John's a friend. And it's also about a subject that we talk a lot about, that I talk a lot about. And, you know, the thing I like about it's it's called learning to disagree and it's talking about how do we disagree and it's through the prism of teaching law and through the prism of John's experience as a law professor and it's really very readable. This is the thing that I think is really fun about it. It's not a dry academic tome. It's stories. It's readable. You can

relate to the things that he's talking about. So thank you, John, for the book. Thanks for coming on the podcast. Hey, it's great to be with you both. Thanks for having me. So you're a professor of law. What are you teaching? What's going on at the law school these days? Yeah. So I'm teaching right now law and religion, which I talk about in this book. I'll be teaching criminal law shortly. I also teach some undergraduates.

So lots of hot button, you know, hot courses and lots to talk about. So learning to disagree, the surprising path to navigating differences with empathy and respect. I will tell you when this book arrived, I did not want to read it. Because I was like, I've read so many books about like how we all just need to get along and yada yada. And then a sort of punishment, I guess, for myself, this book that I did not want to really read, that was David's idea that I couldn't really say no to. And he makes me read these things all the time.

I started it at like 11 p.m. and husband of the pod at midnight was like, okay, time to go to bed. And I was like, yeah, yeah, just I'll just finish this chapter. I ended up just staying up all night to read it. I had to finish it. I couldn't put it down. It's the I haven't binge read a book in a really long time. And like I was telling you, this isn't a thriller. There's no cliffhangers really, but it's this lovely meditation. Each chapter is a month of law school.

So you start in August, you end in May, and it's how the students are walking through it, how you're walking through the year, the classes, you teach criminal law in the fall, you teach law and religion in the spring. It's everything from talking about some of the cases that I remember starting with in criminal law in the fall. You teach law and religion in the spring. It's everything from, you know, talking about some of the cases that I remember starting with in criminal law to then grading exams, which I think every student is curious.

We've been told you just throw them down the stairs, but this does seem, you don't affirmatively say that you're not throwing them down the stairs to see where they land on grading, but it doesn't rule it out either, I would just note. So how did you get the premise for this book that is both about law school and also not at all about law school? I'm so glad to hear that you binged it. That's great affirmation. So I, you know, I started thinking about this book during COVID, just realizing all of us sitting at home,

yelling at each other on social media, thinking we need to have a better way to communicate. And it occurred to me that the intersection of what I teach and what I write about, all of the stuff about disagreement and the First Amendment is actually a great way to think about these issues. And then if I could narrate a little bit

of my classroom experience alongside all of my failures in life as a human being, it might be a compelling way to get people engaged. Well, I do know that the title would have been helped if you had said somewhere in there, there's cannibalism in this book. We'll just leave it at that. We'll just totally leave it at that. Perfect, yeah. Keep throwing that out.

This is a great way to get people hooked. Okay. So here's my question at that. Perfect, yeah. Keep throwing that out. This is a great way to get people hooked. Okay. So here's my question to both of you, actually, because now this is in my, I already ran into a future law student this weekend. She's starting law school in two weeks, and it's the question that I get from every incoming law student. What should I read the summer before I go to law school? And I will tell you, my answer before today was nothing

or some like trashy romance novel. Like the last thing you should be doing is reading law books or there's all those books that basically are supposed to help you get through your textbook, et cetera, and your class. Like don't try to do any of that beforehand. Just like let it flow over you once you arrive. However, some of this, by the way,

is based on my own experience, because before law school, I read Justice Holmes' Common Law, which was inscrutable and I didn't understand a word of it. It reminds me of that fish called Wanda scene, where she calls him a dumb ape. And he goes, I read Nietzsche, can apes read Nietzsche? And she goes, yes, they just don't understand it.

Yes, I read Combs' Common Law, every page of it. And I didn't understand a word of it. And then I read Scott Tureau's One L, which took place in the early 80s and was irrelevant to my experience in law school pretty much. So starting from scratch, my number one book now to law students is going to be Learning to Disagree by John Inazou, because I think it will teach you more how to go into law

school with the right frame of mind and sort of openness to what they're going to try to teach you about thinking about the law than anything else I've read. What do you guys tell law students to read? Future law students. Let's just end it there. Let's send the podcast there. That was great. Move on. Yeah, I actually, I think your advice is great Sarah that read something fun

because you're not going to be able to do that for a while. So don't try to over prepare. There are some good books out there that are a little more technical. Fred Schauer has a good book, How to Think Like a Lawyer. Jeff Powell at Duke Law just put out a book that I think is super helpful. But kind of to your point about Holmes, you're not really going to get this until you've been doing it well. So those are almost like better books over Christmas break or something than they are going into law school. What about Getting to Maybe? Have you heard about that one about how to like write your

law school exams? I do wish that I had maybe been at least able to skim that or something. Cause I bombed first semester. This is like the thing that I had a lot of trouble coming to terms, even telling the podcast audience. Cause it's my deep shame that I got a B minus in towards my first semester. I figured it out after that obviously did much better, but I did not understand what they were looking for in law school exams. Let me just say that a B minus would have been good for me after my first semester.

You know, the only book I have recommended, although I do say, I hate to say it, I read 1L before I went to law school, which was closer to the 80s, Sarah, like really close to the 80s, 91. Yeah, it was. close to the 80s, 91. Yeah, it was. And enjoyed it. And it made me have a better 1L year because I was expecting what I read in 1L. And then I thought, this isn't so bad.

And it was only sort of later when I looked back, I thought, no, that was actually really, actually hard. But the useful book is plain English for lawyers. And it's small and it's about how to basically write well as a lawyer. And the reason why I say that is writing skills are not, writing skills are taught a little bit in law school. Sometimes you'll have one semester about legal writing

or sometimes two semesters about legal writing. It's often not emphasized, but effective legal writing or sometimes two semesters about legal writing. It's often not emphasized, but effective legal writing is, I mean, going back to your exam example, that's a version of legal writing is your exam answer. Your first year law class, this is going to give you a leg up and then just teaches you how to be a better writer in general. So that's my one recommendation in addition to now the new additional recommendation of learning to disagree. I just think so.

Making Your Case by Justice Scalia, for instance, is a book that does attempt to get you to sort of think like a lawyer and engage with the other side. But to your point, John, I don't think, I think when you're not already a law student, making your case actually isn't going to do you a lot of good because you're going to read it and think, oh, yeah, yeah, yeah, I already know that I already do that. And it's only sort of once you're already in the thick of it, that you're going to grapple with some of the difficulty of what he's trying to describe that you should be doing and making your case. I feel like this book, what you do chapter after chapter, which is deeply annoyingly effective,

is that you start in one place in your own mind in describing a situation or a student, and then by the end of the chapter, you sort of show how your thinking has evolved, the student's thinking has evolved. And I think that's a much more approachable way for a pre-law student to get into the right frame of mind. Do you have a favorite by the way, um, story from the book?

They're also good, but. Well, thanks. So, you know, part of that, part of the method of doing that is I want to kind of remind readers, including law students and lawyers that you're training to understand law, but you're also still training to be a citizen and a friend and a human being and all of this plays together in our lives. I should say all of the characters are composites to protect the innocent and the guilty. So there's no direct mapping onto anyone individual. But I do talk about a student along

the way whose thesis I supervised. And what was super interesting to me about going through that experience was someone who I just thought was so sure of herself, so unwilling to receive critique. And this went on for months and months. And I finally, in my mind, had written her off as, this person is brilliant, but she's just unteachable. And then after that, she'd surprise me and had this tremendous final thesis that actually incorporated everything we'd been talking about and it was a reminder.

And for me as a teacher, sometimes this happens while they're still students. Often I have to wait several years for them to come back and say, you know, what, that conversation we had or that, that point you made actually has stuck with me and I learned it, it took me a while. And so playing the long game with people, with students, with relationships is part of the lesson here. And that's, I think, generalizable to the rest of our lives as well.

Oh, yeah. I owe a blanket apology to everyone who has ever tried to mentor me, that it took more than five years for me to get any given lesson. I think I've gone individually to almost all of them. But yeah, it's a hat in hand moment to go back a decade later, be like, hey, that thing you said to me, it's a hat in hand moment to go back a decade later,

be like, hey, that thing you said to me, it took me a while. I got there. So how long have you been teaching law school, John? This is year 13 for me. So 13, so it's 2011 to 2024. How have you seen student culture evolve over that time? How is it different now than when you started? Yeah, so a couple things.

I mean, in my place, the quality of the students has just gotten better. So we are teaching really bright, really leading students, which is a tremendous privilege. I do think the mental health piece has shifted quite a bit. The nature of how students perceive and understand mental health. Some of that's been to the good because there are things you can talk about now that probably none of us were able to talk about in law school. But it does create challenges about how you handle the classroom and how you try to pay attention to different dimensions of conversations and emotions. And then, you know, to pick an issue that's, I think, on

top of a lot of people's minds, I do think there's this growing sense of students not feeling like they can express themselves and their positions fully because the stakes of some of these disagreements feel so much higher than certainly than they did when I was in law school. And, you know, these issues mattered to people and people come into law school with strong views and strong opinions. But there was a way in which we could have those conversations 20 years ago. That feels a lot harder today.

What's the shift from being a law student to a law professor? Like, I mean, do you basically relive your law school year every year? Like you're in Groundhog Day or does it feel just totally like a different thing to be a law professor? I've always sort of wondered that. I mean, you're sort of reliving the same seasons and cycles, and this book really captured that for me. I have gone to sleep every night since I read this book,

sort of meditating on my time in law school and what I did poorly, and some of what I did well, and just the smells and feelings that this book evoked for me of, you know, crunching down the sidewalk and the leaves as you had to class scared as hell. Yeah, you know, I think like for me on the other side of things, I sometimes want to remind my students law professors are people too. And I think when I was in law school, you know, these people were largely just filling a role in my life. And sometimes they were mentors and some of them were very good, but they

were somewhat one dimensional through my lens of being a student and trying to make life work. And from the other side, you know, I love being a law professor, but I've got a lot of other things I do in my life as well. And it's just one small part of what I do and I can have bad days. And, uh, you know, I think certainly having more grace looking back for my own teachers that realizing we're not perfect, we're gonna get some things wrong.

I once my first year of teaching taught the case completely backwards and just baffled all of my students. So I haven't done that for a while, but those things are there too. You know, one thing that is a theme of the book is this sort of idea of understanding, of getting in somebody else's shoes of empathy. And what I am experiencing in my own travels around school

is that that is, my own travels around to different schools and my own teaching experiences is, yes, the instant you can get somebody to sit in someone else's shoes really is an instant you start to have kind of those aha moments. But like you were saying, I'm finding it difficult to even want to get people to want to have that kind of imagination. As if somehow even the sitting in someone else's seat or the standing in someone else's shoes is somehow itself a compromise, as if that effort is a bridge too far. And the other thing is,

I've shared the story a number of times that being with the late Tim Keller in like 06, 07 in New York, and he was talking about what he was seeing of being with the late Tim Keller in like 06, 07 in New York. And he was talking about what he was seeing in his younger members of his congregation. And he was saying, before I had been able to see younger folks arguing, and even sometimes the arguments

about politics were enhancing the friendship. They enjoyed the back and forth. And now he said, I'm having a harder time seeing people disagree and even maintain friendships at all. Just the very fact of disagreement on any issue of any importance is enough to like reset the whole thinking. And that is just, at the time I was alarmed by what he said and then I saw it sort of metastasizing.

But I've seen signs of hope, John then I saw it sort of metastasizing. But I've seen signs of hope, John. I've seen signs of hope that students are kind of getting tired of this. Are you seeing that at all? Are you seeing any signs of hope, or is it just in your part of the world kind of progressively getting worse? No, actually, I do share your optimism in this sense, and I find the privilege of being a classroom teacher and having a semester to go week after

week with the same group of students and to build trust in an environment that, that reaps benefits every semester I've taught. And there are certainly hiccups along the way, but I see lots of students willing to engage. To me, the key distinction that you're pointing out and going back to Tim's comment as well, Tim and I did a book together a few years ago, Uncommon Ground, just trying to work on, you know, to model these notions of friendship across difference. And I think so much of it hinges on the ability to recognize the limits of evil imbued in human beings. And by that,

I mean, two things are true at the same time. One, there is evil in the world and there are evil actors out there. And also, most of us are not so consumed by evil that we aren't able to be in relationship with other people. So we have to be able to be sensible about that. We don't have to invite the neo-Nazi into our classroom discussion. And at the same time, we have to recognize that half of the class is not the equivalent of neo-Nazis. Well, and this brings us to the faculty lounge, I think. You talk about sitting in the faculty lounge. You, in fact, specifically mentioned a seat that you and your colleague vie for that is the furthest away, literally and metaphorically from the conversation.

And I'm just so curious how you would describe what's going on in faculty lounges these days as part of that conversation. Like if the students are struggling, how's the faculty doing? But also, you describe yourself as being politically liberal, but religious and a man of faith, and how that interacts in the faculty lounge, what you think it would be like to be a conservative in a faculty lounge these days, how the hiring is going, whether there's that sort of ideological discrimination. Because you talk about hiring

as well, where basically everyone in the faculty wants to hire another one of themselves because they're so important, there need to be more of them. Which is sort of funny because by the way, like footnote, you could really see that going the other way that they want to be special. So like, the last thing you want is to have someone else exactly like you being hired that would undercut your specialness. But regardless, talk about the faculty side now that we've dealt with the students. Yeah, those are some good hot button questions you just lobbied over to me. I think, well, so first of all, I want to make a distinction between the faculty lounge

and the faculty meeting. I'm writing mostly about the faculty meeting, which is incredibly boring and inefficient. I wish there were a faculty lounge to write about. I actually think that's a huge part of the problem, especially after COVID. There isn't much of the faculty lounge metaphorically or even literally where people are sitting around, talking informally, building social connections. We need more of that.

Some places do it better than others, but I think all of us need more of that because that's where we realize that people alongside us are human beings who are complex and who aren't just caricatures and stereotypes regardless of what they believe. Now within that hypothetical lounge or that actual faculty meeting, yeah, there are challenges I think around ideology and belief. Those vary from school to school. Some schools do

it very well. Some, a few schools have too many conservatives and actually need to open up in the other direction. But I think by and large it's well recognized that there are fewer conservative voices, particularly in and among some of the contentious and normative classes like constitutional law and criminal law. And that happens, I think, at a lot of schools across the board. And it's a challenge when you don't have significant viewpoints in the legal profession represented in law teaching, then you're not preparing your students well to go out into a world of practice where that's going to be a reality with the litigators they face, with the judges there before, with the people to whom they're trying to message. So I think there could be certainly improvements in that area. You know what, reading your book and sort of read, walking through some of the stories,

it just, so much of it seems to be related just to this idea of introducing complexity, introducing an additional thing that maybe folks hadn't thought about, an additional wrinkle in the logic that could have unintended consequences if they pursued their firmly held position. This whole concept of introducing complexity to me seems is just key culture-wide because it seems to me that it's that lack of humility,

this sort of idea, not just that I'm right, because none of us holds a belief that we think is wrong. Where it's like, I believe this, but I know it's wrong. We all, everything that we believe, we believe because we think it's right. But in my experience, the dividing line between the people that I have really learned from and enjoyed engaging with and the people who have tried to cancel, silence, shut down, etc. is the difference between a person who says, I think X, but I might be wrong, and I think X, and I'm 100% right. And just that one distinction is the whole key

to unlocking a relationship in my experience. And it felt like that was a real key to your book as well, just this introduction of complexity as an introduction to humility. And I thought that was a, I'm doing that thing Sarah, where I have an observation and not a question. So- Canibalism, is it always bad?

There you go. There you go. I'm putting on that and going back to David's observations last question, because I do, I appreciate you bringing that up, David. And you and I have talked before about how we are sometimes both labeled as moderate or centrist. I actually don't like that label at all because I don't think any of my beliefs are the midpoint of two extremes. But I do think it describes a temperament or a posture. That's exactly what you were suggesting there. One that is firm convictions, but open to challenge and open to revision and displays hopefully a kind of intellectual and also relational humility. I have something to learn from the person sitting across from me, even if I think

they're wrong, even if I'm convinced that I'm right. Okay, last question. What is the first thing you're going to open with in your class this semester? Oh, well, I guess names because I think that matters. But I'm actually going to hit AI pretty hard too, because I think we cannot afford not to be thinking about AI right now in the classroom and in practice. And I don't know what I'm gonna say, except we need to be thinking about it

and do what you want, but the exam at the end of the semester is going to be without the use of AI. Ooh, intriguing. And how, just as I'm about to teach undergrads next week. And the topic of my class, Sarah, is why American politics went insane. And it's not the Republicans did it, the Democrats did it, but it's all of the giant post-Cold War social cultural religious factors coming together.

So it's kind of the themes of my book. But, you know, one of the, you know, when you're talking about teaching and AI, what are you doing to prevent the infiltration of AI into, say, exam answers? Yeah. I mean, I think at this point you have to make exams controlled and closed. You can't, the take-home exam is dead, the take-home essay is probably dead too, and it's gonna make us rethink what we do as teachers. And I'm only at the very front end of rethinking that because I've gotten very good at doing things over the last few years that are, I think, growingly irrelevant. And,

you know, that's a new challenge and a new opportunity, but also a little bit terrifying. You could walk in with like 30 selectrix typewriters, you know, those manuals. Well, no, David, ask your people. There's something called ExamSoft that does this all for us. Oh, okay, okay, gotcha. But I wanna push back on this, right?

Because like, do we think of AI as cheating, etc., or is it like asking someone to do calculus, and then there's, you know, someone invents a graphing calculator? Should we be teaching them how to use the graphing calculator, or teaching them how to do calculus by hand? And maybe there's a virtue to doing a little bit of both. But if you think of AI as the graphing calculator, I feel like we're at the front end where we're still going to just absolutely make the students all know how to do everything by hand, instead of just thinking of this as another tool that they

should be learning how to use the tool as well. Yeah. When David and I were in law school, they still made us shepardized cases, talking about an irrelevant practice in legal research today. Yeah. Um, so no, I'm much more in the camp of this is a tool. My concern is we're at such the front end of this that we don't really know what to teach of how to use the tool.

Well, if we do like good prompt design, that's going to be irrelevant in a year or two. So let's not waste time doing that. How do we, how do we mirror good use of technology with training, wisdom, judgment, and expertise? Uh, that's the question. I don't know how to do it yet, but I'm going to try. All right. Professor John Inazu of Washington university in St.

Louis, learning to disagree the surprising path to navigating differences with empathy and respect. If you're headed to law school in two weeks, you need to get this book and you need to read it in one night like I did. It's good practice for law school by the way, if you're reading it two in the morning. And I'm just gonna say that's an endorsement.

So I said earlier, full disclosure, John's my friend. So when I say, hey, John, I loved your book, people go, oh, he's a friend. Sarah didn't know about the book or John. And that's there. There's your unbiased endorsement right there. Book crushing. And in fact, hated it like hated the whole title and David Rose.

And I never said that to David, but because he gets obviously he should get to pick one. He said, this guy's really cool and nice. And I was like, OK, that's dumb. But I loved it. Just proving your point, by the way, of not judging a book by its cover, literally and metaphorically. Thank you, professor.

David, that was a real treat. We have so much to get to next episode. We're interviewing Bob Bauer about his book. This is Bob Bauer, who also, it was in the inner circle of Biden's campaign team. So lots of questions to ask him on the book, Unraveling, and on, I don't know how the last two months of his life has been. But maybe more importantly than that,

we got an email from a sophomore in high school who's been listening to the podcast since fifth grade. And she's going to ignore my advice. I think she's heading to law school. Again, I want to repeat she's a sophomore in high school, but she wants to know what majors we think are most helpful for undergrads if you do want to go to law school. So think about that question and we'll answer it next time on Advisory Dependence.