Advisory Opinions - Legacy Nerds

Episode Date: August 17, 2020

The 9th Circuit recently heard an appeal from a challenge to the state of California’s ban on large capacity magazines (in this case, any magazine that holds 10 or more rounds). California didn’t just ban the sale of these magazines, it banned their transfer, importation, and outright possession in the state. The 9th Circuit ended up striking down this law and departing from its sister circuits on the question of scrutiny. The precise contours of the Second Amendment remain up in the air in the post-D.C. v. Heller era, but our podcast hosts are armed with a war chest of constitutional history that helps break down gun rights precedent for our listeners. In today’s episode,  Sarah and David also dive into the John Durham probe into former FBI lawyer Kevin Clinesmith’s falsified surveillance warrants against Trump campaign adviser Carter Page. In keeping with August’s Monday nerdery trend, our hosts are joined today by Rob Daviau, a professional legacy board game creator. Daviau has worked on more than 80 published games—including Risk 2210 AD, Axis & Allies Pacific, Star Wars Epic Duels, and Clue Harry Potter—and has been a professor of game design at Hampshire College and NYU. Tune in to today’s episode to learn the ins and outs behind legacy board game creation and to learn why a game with bad math doesn’t work. Show Notes: -United States v. Carolene Products Company and Harlan Fiske Stone’s famous Footnote Four. Learn more about your ad choices. Visit megaphone.fm/adchoices

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Conditions apply. Offer ends June 30th, 2024. New eligible clients only. Complete criteria by August 30th, 2024. Visit rbc.com slash student100. You ready? I was born ready. Welcome to the Advisory Opinions Podcast.

This is David French and Sarah Isger. And this Monday in August, Sarah, and what does that mean? Nerd time. Yes. So this, friends, I have to say is deep nerdery. Deep track nerdery. Yeah. Deep track nerdery awaits after our discussion of the law, because as always happens, Sarah, there are important legal developments, seemingly like clockwork every three to four days, perfectly timed to enhance this magnificent podcast. It's nice, isn't it?

Yeah, it's very kind of the courts to do this. Yeah. So, it's Friday, Sarah. I'm driving with my son, my youngest daughter, and my wife. We're in two cars heading to Knoxville, Tennessee to move Austin into his house that he shares with three other guys in Knoxville to start his sophomore year of college at the UT. And where I think he has one class on campus out of his four or five. So he's going to be living in an apartment zooming most of his time, which will be perfect because he'll be able to log off of Call of Duty and log on to Zoom seamlessly. Without even moving. It's great. Yeah. Yeah, it's remarkable. And I felt a disturbance in the force. It was uncanny. And I resisted the urge to say to my... Because we were in two cars, I was riding with my youngest daughter, to say, pick up the phone, Naomi,

and can you see if there was a significant second amendment decision handed down? Because that's what I felt. Well, it's funny. I didn't send it to you. Normally, you and I send things over Slack. But if I know you've already seen it before me, I don't bother. Even though I saw it within minutes of it getting posted, I did not send it to you because I figured that it was like straight into your veins, like an IV from the ninth circuit. Yes. You knew you were correct. You were correct. I understood that something significant had happened in the second amendment. And so it took me hours because, you know, I had to drive through rush hour traffic. I had, you know, to, to help my son move in and And you can't just rush. This is an important part

of family life. You can't just rush. You have to savor it. You have to wait and savor it. Yeah, exactly. So it wasn't much later until Friday night that I got to read it. And it was the Ninth Circuit throwing... Is it fair to say throwing the emerging Second Amendment consensus into chaos? Oh, no, no, I don't think it's chaos. I think that the Second Amendment debate had basically been shuffled off to its quiet little death over on the side. And the Ninth Circuit just brought it roaring back to the center in a way that the Supreme Court will have trouble ignoring. That's what I mean by chaos.

We have different definitions of chaos. Well, that could be. You were probably thinking like looting and dogs and cats living together. I was thinking probable circuit split. Yeah. Yeah. And a big one. A big one.

So essentially what happened is the Ninth Circuit was hearing an appeal from a challenge to the state of California's ban on large capacity magazines. And that's a phrase that is not self-defining.

A large capacity magazine is basically whatever a state calls a large capacity magazine. basically whatever a state calls a large capacity magazine. And in this case, it's a magazine that holds 10 or more rounds. And so it was here. And California didn't just ban them like many states where they said, okay, you can't buy them or sell them in the state anymore, but anyone you already have, you can keep. Sort of the classic grandfather clause. What California had done gradually over time was ban their sale, ban their transfer,

ban their importation into the state, and then finally just ban their possession outright. If you had a previously grandfathered large capacity magazine, if this law goes into effect, then you are going to, unless you surrender that magazine, you are going to be violating the law. And so the Ninth Circuit struck down this California law and in so doing, departed from its sister circuits in a couple of material ways. sister circuits in a couple of material ways. One, in the outcome, a number of other circuits had... Now, these other circuits weren't dealing with a ban on the previously grandfathered magazines, but departed from the law of sister circuits

and also departed from the level of scrutiny of sister circuits, which is very, very, very important. And nothing more appropriate on our Nerd Monday in August than to talk levels of scrutiny and footnote four. We will get to that. Yes, yes, we'll get to that. And Sarah will explain how cases about milk can alter the course of constitutional law. But so here is essentially what's going on, just as a bit of background. As we've discussed Second Amendment case law to a pretty good extent in previous podcasts. But just to give you a quick primer of where we are at the Supreme Court, where we are

at the Supreme Court is, yes, the Second Amendment is a, the Second Amendment protects a personal right, that personal right or individual right, and that individual right is incorporated to the states as are other individual rights in the Bill of Rights, like the right to free exercise of religion, free speech, etc. But the precise contours of that right have been really left up in the air. Essentially, Heller applied to the ability to possess a handgun in your home for personal home defense. And the Supreme Court has rejected review of a host of circuit court opinions that, among other things, have upheld laws restricting your ability to carry a handgun outside the home, have upheld assault weapons bans, have upheld large capacity magazine bans. It's just rejected a ton of cases that have upheld restrictions on the Second Amendment.

And here comes the Ninth Circuit, of all places, with a George W. Bush appointee and a Donald Trump appointee in the majority stampeding in and contradicting a lot of these circuits that had upheld previous restrictions on the Second Amendment and applied strict scrutiny, the highest level of scrutiny to do that. All right. Is this your cue, Sarah? Well, real quick. So the judge writing for the majority is Ken Lee. And I just have the funniest Ken Lee story to share with you judge writing for the majority is Ken Lee. And I just have the funniest Ken Lee story to share with you. I knew you'd know Ken Lee. So back when I was in law school, Ken worked at the White House. And we had gone out one night

with some friends of his, one of whom was a woman who also worked at the White House. And she and I got into a tiff, like a pretty big tiff, actually. also worked at the White House. And she and I got into a tiff, like a pretty big tiff, actually. Like feelings were hurt. The night didn't end well. The fight was over the diversity of Houston. And I said it was the most diversity in the world or in the country. And she was from New Jersey and said that Houston was like this all white backwater, whatever. I was offended. She was offended. Words were shared, et cetera. So fast forward, I'm backwater, whatever. I was offended. She was offended. Words were shared, etc. So fast forward. I'm back in law school. Isn't there empirical data to support these arguments? Well, yes, but not back then. There weren't iPhones.

Oh, correct. Okay. Yeah. So this is back when you just had arguments. So I go back to law school and a month or two later, I get in the mail, this like little care package and it has a white house Easter egg. And it says, dear Sarah, I'm really sorry we had this fight. Um, you're great. Uh, I think so highly of you. I respect you, blah, blah, blah. Uh, sincerely this woman that I had the tiff with. And I was like, whoa, that's really kind of her and awesome. And like to be thinking like, wow.

And thanks for the, the white house, little wooden Easter egg. And I flipped the letter over and it says, JK, I wrote this. She still hates you. Kenley.

That's fantastic. It was just such a well, well executed prank um she and i still hate you no she and i totally made up it's fine okay good uh but anyway uh so let's talk levels of scrutiny now we're backing up uh to the great case of United States versus Caroline Products. That is from 1938. And it's a big case. I mean, huge, David. This was about filled milk.

Of course it was. Yeah. And I mean, let's talk a little bit about what filled milk is. Not that it has any relevance to what we're going to talk about at any other point. But filled milk is when you basically use skim milk and then re-add fat, but you use like vegetable oil or coconut oil. So this case involved mill nut. Sounds delicious. Mill nut was condensed skim milk and coconut oil.

And it violated the Filled Milk Act of 1923, which banned the interstate shipment of filled milk. I'm glad Congress was on top of the big issues, even in 1923. Right. I mean, we're on the verge of a worldwide depression, but let's get that filled milk. Right. And so by the 1930s, of, like it's important to have cheaper milk products for food for people during the Depression. So they sue and spoiler alert, they lose. Congress can make laws banning the interstate transportation of filled milk. But but I tell you, David, there was a footnote footnote, the footnote heard round the world. Justice Stone says,

basically, this law was presumptively constitutional and therefore only warranted minimal scrutiny. This sets the basis for the rational review test, where judges basically look at a law and go, meh. Yeah. I can see how somebody could do this. Yeah.

Yeah. So rational basis review is the law must be rationally related to a legitimate end. is the law must be rationally related to a legitimate end. There's very little that isn't rationally related to some legitimate end. It is the weakest level of review. If you get rational basis review, it's hard to lose. Right. If you're defending the statute. Oh, correct.

The government can't lose with rational basis. Very tough. But Justice Stone sets up another thing here. Correct. The government can't lose a rational basis. Very tough. But Justice Stone sets up another thing here, where he says, now, look, if this were on, you know, some other immutable quality, et cetera, then there could be a whole nother thing. So that is strict scrutiny. This is if a law discriminates or classifies individuals on the basis of a suspect class, race, religion, national origin. The law could burden a fundamental right, your First Amendment right to free speech. They will use, quote unquote, strict scrutiny in determining whether it's constitutional. The law must promote a compelling government interest and be narrowly tailored to achieve that interest. And what is it they say about strict scrutiny, David? Well, I've always thought when you get strict scrutiny and you're challenging a law, you win. Strict in theory, fatal in fact.

Yes. So when the Ninth Circuit said they were going to apply strict scrutiny to the Second Amendment, strict in theory, fatal in fact, it was indeed. But the Ninth Circuit case here also said that even if they had applied intermediate scrutiny, they would have still far only to gender and illegitimacy of birth. But some courts have been saying that it would apply to the Second Amendment. These are quasi-suspect classes or quasi-fundamental rights. And intermediate scrutiny sort of kind of means the law must promote an important government interest and be substantially related to achieving that interest. So it's intermediate, all right, in that it's some squishy in the middle between rational basis, rationally related to a legitimate government end, and strict scrutiny, a compelling government interest narrowly tailored to achieve that end.

The other category that receives intermediate scrutiny, commercial speech. Commercial speech, intermediate scrutiny. And I've always viewed it like this, rational basis review, government wins, barring extremely unusual circumstances. Rational basis review, government wins. Strict scrutiny, plaintiff wins. Intermediate scrutiny, judge wins. Because they just kind of get to do what they want to do at that point. It's like, do I think this is reasonable or do I not think this is reasonable? Um, and, and it really is interesting that the tech, a lot of folks don't realize who,

who don't practice constitutional law, that an awful lot of whether you win or lose, it's just going to flat out depend on what test is applied, um, going in. A lot of the fighting that occurs in, uh, in, in briefing is what, what test is going to apply. And when it comes to the Second Amendment, this is where the battle is. Yes. Which level of scrutiny will get applied? Because if it's intermediate scrutiny, as you said, it's going to be sort of this like wandering through wonderland of who knows where each of these laws will fall and states that are more in favor of stricter bans will win. And that'll just be sort of where it lies. If it's strict scrutiny and they find that the Second Amendment is a fundamental right,

it's a whole new ballgame. And that's why when the Supreme Court not only kicked the New York case that we've talked about this term, but then didn't take any of the pending cert petitions, everyone was like, ugh. And now we have to keep waiting to even know what the test is. That's why I think this opinion is such a big deal because Ken Lee is a well-respected, really smart guy. And I think they were, to some extent, waiting.

You know, the court does this from time to time. They want to see smart people brief this and judges grapple with it so that on top of the briefing that you'll get at the Supreme Court, it has percolated below with other smart minds working on it. I think this is what they were waiting for,

making the case for a strict scrutiny on the Second Amendment. Not saying they'll adopt that, but they wanted the best case they could find. Well, in a very sharp circuit split. I mean, this is, well, I'm not going to call this very sharp because this has the quirk of confiscation

compared to a ban on new sales, which is an important quirk. And it's also a reason why I wonder if this goes en banc. The reason why I say that is because the Supreme court has shown such reluctance to take a second amendment case. Um, there, there's going to be a kind of a quick way that this thing becomes neutralized or sort of like not an outlier and that's on bonk review and reversal yeah you know as we've said if they take it on bonk it actually erases the panel opinion which uh would be a bummer for purposes for many purposes

but i think now you've said this out loud i think you're exactly right this goes on bonk and i think here can i can i make a super bold prediction okay on bonk review intermediate scrutiny ban flat ban on possession reversed um previous bans on sale and transfer upheld cert denied wow that's like what do they call those in betting where you've like it has to meet like you know whatever it is 27 different things in order to win the bet there's a word for that yeah i don't know i don't know but i'm i'm imagining a situation where the ninth circuit comes in line with other circuits on the intermediate scrutiny, but still says that the flat ban on possession, which has the disadvantage of rendering an awful lot of people immediate felons, basically, as saying that that's a bridge too far. And,

and, you know, some listeners might be who maybe don't own firearms or not familiar with firearms, common, common firearms in the United States of America might say, why would all these people be immediate felons? Everybody knows that like a large capacity magazine, that's a bad thing. A large, what, as the,

the opinion makes quite clear, the large, the definition here of large capacity magazine is such that it, it encompasses about half the privately owned magazines in the United States of America, encompasses about half the privately owned magazines in the United States of America, including the magazines that by default come with. When you buy some of the most popular handguns in the United States, you will get, for example, you'll get, I think the last time I bought a semi-automatic handgun, it came with two magazines. And I live in a state that does not have a ban on large

capacity magazines. And it came with two magazines and they fit squarely in the weapon and they hold 17 rounds. And it's just the normal magazine that comes with the weapon. It's not like one of these really weird things that you'll sometimes see on television where the magazine extends way beyond the pistol grip, or it's one of these big drum magazines that don't go with an AR-15 but have to be purchased specifically in addition. So an awful lot of people come in and out of California, and they have the weapon that they purchased lawfully in another state that has the magazine that just came with the weapon. It's not some special scary thing that they purchase somewhere else because they're like you know a gun aficionado it's the normal thing they've had and is when they cross the state lines they're a felon and that's something that i think is one of the reasons why it's difficult

to have a big patchwork of regulations when you're talking about the Bill of Rights. I've long been a fan of federalism on many, many grounds. I'm not a fan of Bill of Rights federalism, but that's what we have with the Second Amendment. We have a lot of federalism right now as a practical matter with the Second Amendment, and a lot of folks just don't know that. And especially when you're talking about weapons and magazines that are just the normal thing that they just purchased in a gun store, and it wouldn't cross their mind that what they just purchased in a gun store was some sort of unusual large capacity magazine. And I think a lot of that was underlying the court's opinion that you're talking about the things that most people or about half the magazines in the US.

And one other quick thing on this, I do think, I do think that if the court, if states banned large capacity magazines and defined it in a way that the capacity was larger than the standard magazine that comes with the gun, that would be probably upheld coast to coast. Right, I mean, part of Judge Lee's opinion here is, I could get these numbers slightly wrong, but there's 230 million magazines in the country

and 115 million of them would qualify as large capacity under this California rule. And so, you know, some of this is like, look, if you're banning half the magazines in the country, maybe you have a problem. Well, and there's also this language from Heller that it's dicta, but the dicta implies that the court would protect weapons or arms in common use for law-abiding purposes. And if you're talking about half the magazines in the

U.S., you're talking about common use for law-abiding purposes, which was a part of the opinion. But much more interesting was, as you say, the levels of scrutiny. So do we want to leave the Second Amendment? Let's do it. Okay. So we have another legal development. We had a plea bargain in the, is this property to say in the Durham probe? Sure. Although I think it's just as easy to say it's the Mueller, you know, spinoff of Mueller. Like Better Call Saul is to Breaking Bad. Yeah.

Mueller spinoff, yes. And IG Horowitz spinoff. Yes, yes. That's more correct. Yeah. All right. So super quick. In December of last year,

Astute, and in fact, wasn't this the very first advisory opinions? Looked at the Inspector General Michael Horowitz's report detailing his investigation of the FBI's decision to open Crossfire Hurricane that... That's funny. I remember that there was a reason we went faster than we were going to, and it would make sense that it was that because there was something breaking and we were like, we were going to wait till next week, but we got to go.

It was that. Cool. Producer Caleb is nodding in agreement. And this was an infamous podcast, Sarah, Caleb is nodding in agreement. And this was an infamous podcast, Sarah, because I sounded like I was podcasting from a bathroom. Yeah, now I remember that. It was particularly embarrassing because it went out on the Remnant feed,

which is like the battleship feed of Dispatch podcasts. And it sounded like I was in a bathroom stall in laguardia well anyway now we get a second bite at the apple so that made reference to a doctored email that had uh been uh you know doctored by a government employee and used in a criminal investigation. That is a no-no. Yes. Yes. So there is no sugarcoating what Kevin Clinesmith did. So essentially what happened is

the Carter Page FISA, to make a complicated story, a complicated story as simple as we can, was heavily reliant on the flawed steel dossier. Flawed, it might be too mild a term to describe the steel dossier. So just fill in whatever negative, extremely negative descriptor you want to use to describe the steel dossier. But the FISA warrants on Carter Page, who was a former low-level campaign aide to Donald Trump, depended heavily on the Steele dossier. But that was not all that they depended on. Heavily is somewhat in dispute, but okay, yeah. Okay. Depended to... It was included.

It was included, yes. So one of the questions that came up in the course of the serial renewals of this FISA, so there were four total FISA warrants obtained, was whether or not Carter Page was working as a source for the CIA. CIA, which if he was, in fact, working as a source for the CIA, that's a factor mitigating in Carter Page's favor. And so essentially what happens is Andrew Clinesmith reaches out to what the criminal information helpfully calls the other government agency. I love this practice of not labeling things when everybody knows what the thing is. Reaches out to this other government agency and asks whether or not Carter Page was a source.

And so the other government agency refers Clinesmith to previous disclosures saying that he was and has a little segment here. And I'll read it. It's a little bit cryptic. The other government agency uses the diagraph. Why can't people speak in plain English? I don't even know what a diagraph is.

It's like a source. It's like a source. That's not the precise definition of diagraph, but it's like a source. So the diagraph is Carter Page to show that the encrypted individual is a U.S. person. We encrypt the U.S. persons when they provide reporting to us. My recollection is that individual number one

was or is diagraph, but the documents, and these are in brackets. So this is like, it's hard to follow. We'll explain the details. If you need a formal definition for the FISA, please let me know.

And we'll work up some language and get it cleared for use. So that section segment is sent. So it's up the chain, and Clinesmith doctors it. And he says, my recollection is that individual one was or is, diagraph, and he includes this phrase, and not a source, but the documents will explain the details. So he doctored the email, the message that he sent up, and so relying on the altered email,

there was a signed and submitted application to the court for FISA that did not include Carter Page's history or status with the CIA. Does that make sense? Is that clear enough? Yeah, it also doesn't matter. You doctor emails and you use them to go up on a FISA, Does that make sense? Is that clear enough? brady material meaning a material that could be exculpatory to a defendant uh or and i think this is rare but police officers who uh intentionally fabricate evidence um yeah just you're going to jail if you get caught and hopefully you get caught but it's different than a than a systemic problem in the system because i think that you have some people who are not cut out for this

line of work, who don't understand our justice system and get so caught up in knowing that, we've talked about this before, they're framing a guilty person that any means justify that end, and they forget that our entire system is actually the means. The whole purpose is the means, not the end. Yeah, as I said, there's no sugarcoating this. I mean, here you have in a politically explosive, highly consequential investigation of a former campaign aide of what by that time was a sitting president

of the United States of America, a doctored email sent up that arguably, almost certainly, I mean, that's certainly the implication of the criminal information, altered the contents of the warrant application. That's bad stuff. We knew that this happened in December 2019

when we had our first emergency pod from the LaGuardia, apparently from the LaGuardia bathroom apparently from the LaGuardia bathroom. But this is the other shoe dropping. This is the actual criminal indictment. Now, what else is going to happen as a result of the Durham investigation? I don't know. We have no idea. There is still a cryptic statement that he made after IG Horowitz issued his report detailing his investigation of the FBI's decision to open Crossfire Hurricane. And he said in that original investigation that he did not find documentary testimonial evidence that political bias or improper motivation

influenced the decision to open Crossfire Hurricane or the individual investigations of Carter Page, George Papadopoulos, Michael Flynn, or Paul Manafort. Durham fired back with a very cryptic statement that says, we do not agree with some of the report's conclusions as to predication and how the FBI case was opened. So we're still left with that. Yeah, I mean, I think the bigger question around the Durham report isn't what it will say, but when it will say it. Yeah, that's an excellent point. Because we're getting, I don't know if you noticed this, author of the Sweep newsletter, subscribe.

We're getting closer to a presidential election. That's interesting. Huh huh huh uh you might want to consider that in some of your writing i mean maybe we're 77 days 12 hours 13 minutes and 39 seconds away from election day yeah yeah um could you be more precise at 34 33 32 yeah so um this is going to be very interesting. And Durham's under some pressure because, look, I think people who followed this want to know what conclusions he comes to. The problem is that if the conclusions are negative to the Obama administration, the closer to the election... Either way, the closer.

This is Comey 2016 all over again. Yeah, that's true. I think the American public deserves to know, but to your point, finding out on October 30th is a mess. Yeah, exactly. Oh, that's a giant mess. Or finding, I mean, this is the kind of thing that there's almost no good outcome at this point. What if it's November 5th and there's material information of misconduct by the Obama Biden administration? I mean, we're just getting to the point now, rapidly getting to the point now where there's no good timing left here. Early voting starts in just a couple weeks. here. Early voting starts in just a couple weeks. Yes, indeed. Hey,

I have a couple clarifications from our immigration and citizenship discussion. Yes. From an immigration lawyer who listens to our podcast. Oh, good. You are deportable for any drug crime, misdemeanor, or felony, with the exception of sort of

a minor marijuana possession situation. Two, he agreed lots of people sit in this country because no other country wants to accept them. So even if you have an order of deportation, if no other country wants you, you sit here with no status and no ability to travel internationally, a la terminal, like we discussed. Third, yeah, so if you commit a crime and you have the deportation order, you serve your prison sentence here first. It's not either or. Right, right. And last, I didn't want to get into this because it gets even messier, but I love that he was like, well, actually, because he's right. If you were born in the 1930s, for instance,

or the 1950s, basically none of these laws are retroactive. So especially for old people, like these Nazis that hid out in the country and stuff like that, you have to go back and find the law the year they were born to figure out who's a US citizen.

So it can get super duper messy. So appreciate the email. And I love when experts in their field write us when we are not experts in their field. It's helpful. It's interesting. And I learned stuff. Thank you. He also included these statutory citations for each of these, which is awesome. Oh, that is the exact kind of listener mail that we want. Because as many times as we... We should always issue this like... I almost feel like this legal disclaimer, not certified as an expert. But that's fantastic and keep up that feedback.

But one thing that is not ambiguous, it might be ambiguous about somebody born in 19-whatever, but here's what's absolutely not ambiguous in any way, shape, or form. Kamala Harris is a natural-born U.S. citizen. Correct. Not ambiguous. And did you notice that over the weekend, Newsweek apologized for printing the article? I did. It was a weird apology, but they left it up. And I actually, I did. It was a weird apology, but they left it up. And I actually, so this like applies to Twitter a lot of like your tweet turns out to be wrong and it got retweeted a zillion times. Do you delete the tweet or issue the correction? And I understand both sides. On the one hand, you want people to stop retweeting it and misinforming people. On the other hand,

deleting it almost denies that you got it wrong. I have the solution to that, Sarah. Okay. Okay. So I think you'd, so Twitter is a little different from an essay, but I think they did the right thing on apologizing for the essay and leaving it up. With an editor's note.

With the editor's note that's right up front at the start. So you can't even start reading it without the apology. I think I agree. On Twitter, I think the proper etiquette is you delete the standalone tweet but you screenshot it yeah and you you tweet out the screenshot and you say i i deleted this tweet so that cannot be shared independent of context that it was wrong yeah this yeah it's like a twitter version of an editor's note but it's pretty i mean that's some advanced twitter work there that's twitter that's like twitter 404 yeah that's grad school twitter

exactly speaking of getting into the weeds on nerddom uh i'm pretty excited about our conversation on board games and something that we got into in the green room that i just want to mention in case there's some fans out there. I got very into Wingspan this winter. It's an amazing, highly competitive board game involving birdwatching. I'm sorry. Every time you say that, I just... Yeah, David.

And to be clear, I'm not laughing because I look down on nerdery in any way, shape, or form. I'm just laughing because of how many times you've looked down on my nerdery. I mean, it's competitive, which I love. It's birdwatching, which I love. It's accurate, which I love. The drawings are amazing. It's sold out. It's an amazing game called Wingspan. Highly recommend. But the person who we're talking to today

takes board games and makes them even better. Legacy board games. So this isn't even nerdery about board games. This is like the nerds of the board game world. It's multi-leveled. And so in the green room, Wingspan fans, you will be pleased to know that I asked him to consider making a legacy board game out of Wingspan. And for those of you who are like, what's a legacy board game? Oh boy, you're about to find out. Well, before we dive into not grad school nerdery, not PhD level nerdery, but post-doctoral nerdery. Let's hear from our sponsor. And that sponsor is CarShield. Computer systems and cars are the new normal.

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That's carshield.com code ADVISORY. A deductible may apply. All right, Sarah, it is time for your special guest. So excited. Can you introduce Rob to the listeners? Yes, I can. This is Rob Davio, and his title is board game designer, which is about the coolest nerdiest title I think we'll have all month. It's super awesome. So let me explain how I,

like why Rob is a celebrity in my household. So there's board games. You all listening know what board games are, but many of you do not know what legacy board games are. Legacy board games, and I'll have Rob explain this, actually what they are, but I'm going to tell you that we dedicate like a weekend every couple months to play a board game for about 24 hours. There is a little sleep involved. There's some eating involved. And the board game changes and shifts

and all these things happen. And we do this with our other nerd friends. And Rob's thing is that he created this whole concept and all of the legacy board games that we play here at our house. And the biggest deal is around the legacy board game world right now is Pandemic Season Zero. So there's Pandemic Season 1 and 2. And yes, really, it's called Pandemic and it's about a virus going around the world. And Season Zero was set to come out this year. Then everyone, including my house, was like, wait, is he going to do it? Is it going to change the game? How is this going to affect our world?

And I mean, Rob found me actually. And and i was like oh my god i can't believe like it would never i would never have presumed to reach out to the rob davio about this uh but he has agreed to be on the podcast so okay rob you have to start by explaining legacy board games uh i would be happy to that was was quite an introduction. Thank you very much. That's better than hello, nerd. No, that's fine. Hello, nerd is fine. No problem. I realized at some point I couldn't stop being a nerd and I just went pro back in 98, became a professional board game designer. So I've been doing it since 98. I was at hasbro for about 14 years i worked on clue and risk and monopoly and was the

editor-in-chief at trivial pursuit for like eight years and did star wars games and harry potter games and then the the company moved and i couldn't move with them so i went out on my own in like 2012 and now doing my own thing so it's sort of like being a book author i make a game find a publisher the publisher publishes it i get a royalty but you asked about legacy games which is uh something that some people have a hard time getting their head around if they haven't played board games but if you think about it normally you play a board game and you put it back in the box and when you take it out again nothing's changed from the last time you might shuffle the cards and they're in a different order or people play a different character but basically nothing you

did in the last game ever carries forward in the game. Sometimes above the table, things carry forward. Where you're like, oh, remember when Sarah went back on her deal? I'm going to get her this time. So the group sometimes carries forward, but the game always resets. So about 10 years ago, I came up with the legacy idea, which is what if some of the things you did in one game physically changed the game? So when you pick it up, you're sort of like chapter two. You're picking up where you left off. Now, not everything. The game is largely the same,

but maybe you added a card into the deck. Maybe you won the last game and there was a choice of two cards. And as the winner, you said, I want card A and not card B and card B never goes into your game, but in a different group, someone picked card B. So already their game is different from yours. And you might put stickers on the board. You might, this always bothers people, destroy a card, which rips it up. And I only came up with that because the first game I did this with was Risk.

If you remember Risk, it's like a really aggressive war game and it was very macho. And the idea of ripping a card fit there. But the point is you take cards out of the game or pieces out of the game that you don't use again. You can keep them in a little bag. I don't care if you destroy them. Some people burn them and really get into it.

Oh, we do. Yeah, no, we take it very seriously. My character died in Pandemic Season 1, and it was tragic. Right. You get characters, characters can die, new characters can come in. And what happens is in a legacy game is there's usually somewhere between eight and 15 episodes or chapters, if you think of like a season of TV and you start in the same place as everyone else in the first game, and then you'll play and you'll play and you'll make changes.

And actually you'll get, you'll open things like a little birthday presents, like after game three or something like, oh, by the way, you just got a new briefing from headquarters, open box two and box two will have new cards and new rules and twists and turns and the idea is to feel like you're living out a season of tv and then you get to the end and you have told

a story that while it will be similar to other people would play the game is actually completely unique to your group the choices you made what happened the way you solve problems um and there's things you put in there and there's scores like there's different ways to do it there's pandemic legacy which has scores that's a cooperative game everyone's playing against the game so you get a score how did your team do uh there's other games we talked about risk we used um which was the first which is a competitive game it's who won the most games like it's almost like a sports season and um and then at the end some of sometimes when you get to the end of some

legacy games you can keep playing the game doesn't change anymore but you have a game that's yours to keep playing and then sometimes like the the pandemic ones it's like oh we've told our story your game is done so you've had basically the virus wins or you win most of the time people win if you're new to them it can be a little tough but we try to make it that you can at least partially win against the virus so it's a veteran dungeons and dragons gamer um and by the way one of my real gifts in life is sarah i'm a very good dungeon master like i'm a very i mean this is me not at all surprised. Okay, but anyway, so as a veteran D&D-er, it sounds like kind of like a combination of a board game

and a Dungeons & Dragons campaign where you will get a module, you'll get a new dungeon or a new adventure. And when you play through that module, you're different. Like your character has maybe more experience, has more loot, maybe your character's dead and you're having to your character is maybe more experience has more loot maybe your character's dead and you're having to start all over or but you just can't keep you don't go back and just

replay that module because it's a sort of a one and done thing and it sounds like sounds like you have combined that with the board gaming world a little bit i my real entry into games beyond monopoly and scrabble as a kid was dungeons and dragons i went up to summer camp in 1981 and discovered dnd and sort of fell in love with it oh man we've lived parallel lives how come we haven't ever met before this is crazy first edition dnd has a very special place in my heart and uh so i really thought i was going to be a role-playing gamer. And I had an article in Dragon Magazine right before I became a board game designer. I'm like, oh, I'm going to do this part-time. I don't think I can pay the bills. And then long story that we'll

skip here, I ended up at doing board games at Hasbro, but I always have this love of storytelling and branching stories and emergent narrative. So yeah, legacy games are really a hybrid of role-playing games, board games. It's got a dash of episodic TV or video game tutorials in there as well. But I sometimes say that I'm DMing, I'm dungeon mastering your board game from a distance. Now, because I'm not there in real time,

adjusting the story, you can't give players as many choices as a role playing game. Characters in a role playing game technically can do anything. And then the DM has to sit there and react to their often incredibly bad choices. So we have to kind of constrain the choice, but there's a lot of parallels between playing a legacy game and playing a campaign in a role playing game like Dungeons and Dragons. Since you mentioned your career, and we have a lot of younger listeners as well, or perhaps older listeners regretting their life choices,

how... You talked about all of a sudden you're at Hasbro from this D&D guy, like college. Did you have a major? And what types of personalities fit well into your career? I've had a bunch of careers before I became a board game designer at 28. I was a semi-professional cook right out of college.

Actually, the end of college, I was going to be a comedy writer. What'd you major in? I majored in classical civilizations with a minor in medieval history. That makes so much sense, actually. Yeah, I basically studied storytelling, you know, like worlds and world buildings and characters and backgrounds, which is obvious in hindsight why I did at the time.

I'm like, this is fun because I was going to be a professional television writer, comedy writer. I wanted to be a sketch comedy writer. I wanted to work at Saturday Night Live. I was missing the key ingredient to do that, which is I should have gone to Harvard, which apparently is how you become a television writer. Yeah. So I actually interned with David Letterman back and went then, I didn't like TV. I didn't like New York, didn't like Los Angeles,

didn't like the culture, pivoted to be a cook, was an advertising copywriter and then became a board game designer. But the only thread that's similar in all of those is storytelling. I can even say that cooking is a way of telling a story of saying, I have an idea and I want you to experience my idea, whether I'm trying to sell you something or make you laugh or play a game or have a good meal.

I just always wanted to sort of turn creativity into a tangible product. And as far as the personality traits, you spend so much time, and I want to talk about how you even, I don't know, what your day looks like. But it's, I would assume, long amounts of toil by yourself, and then you send this thing out into the world. And in that way, it's almost more like an author, like a book author. So it's not a lot of interaction with your fans uh and so the personality type who's going to enjoy what you do is going to want to like have that storytelling aspect of themselves right yeah it's it's it's being a craftsperson right i sometimes say artists i sometimes say craftsperson is you you have an idea and you're just going to work it and work it until it's not bad and it gets as good

as you can make it in every game you make you hopefully learn from the past ones but it's not bad and it gets as good as you can make it. And every game you make, you hopefully learn from the past ones. But it's a weird blend of math and storytelling and a little bit of industrial design and experience design because a game with bad math doesn't work. If in Scrabble, and I'm going to pick games that probably most people know, like the Q and the Z are worth 10 points and the E is worth one because the E is more common. That makes sense. But if the Q is worth 500 points, that's bad math because whoever gets it wins. And if the E was worth 10 points and the Q was worth one, that doesn't make sense because that's just backwards from

probability or how often you're going to use it. So you need to have sort of an understanding of math. And some people are really into the math and their themes are very light and they make these beautiful sort of emergent math engines. And often those people are European designers. A big movement came out of Germany like 25 years ago, which used some of these sort of elegant theme light math, like where they just make a math system and then they're like, uh, this is about farming, right? And it has very little to do with farm. It's always farming or trading or merchanting or something. Um, so yeah, Catan settlers, Catan, if you know that one, that was the first one in that genre. Some people are very much into the storytelling in the writing, um, more role playing side. I want to tell a story. I want you to be in a book. I want you

to be in a movie. Um, there's people who really want things that feel like toys or objects. And a lot of those are the ones you see for kids, you know, Bop It and Jenga. And it's about a physical object that you're interacting with. But you take all of those things, you've got rules, which is, you know, the one thing, it's a weird sort of hobby. It's the only hobby where you have to take a reading comprehension test before you can start only hobby where you have to take a reading comprehension test before you can start and you're going to get part of it wrong like tv would never work that way yes you know uh and so it requires a certain mindset and then you go on this experience and it's just a lot of it is a little bit of math a little bit of rules a little bit of reading and

a little bit on the table and then but mostly it's living in your head, like you're living out a book. Yeah, you know, it's interesting you bring that up about math because as you were talking, I'm sitting there thinking about all the different games that I've played and how much math is absolutely critical to game balance. You know, everything from Dungeons and Dragons and the various different side of dice, which are just different kinds of probabilities

that are thrown into the mix. The most recent board game I played was a game called Puerto Rico, which is about colonizing Puerto Rico. Yeah, and I played it with all my... It hasn't aged well, its theme. It's got some problems there.

The math is good. The theme is not good. I'm making my problematic face, David. Well, anyway, that's what it's about. And I played it with all my... It's funny, the group of guys I played it with, we were a reunion of our battle staff from Iraq. And we played the board game Puerto Rico,

which one of the guys played with his kids. And we got intensely into it, just intensely into it. But again, that was just a math problem, basically, like looking back on it. It was kind of a math problem with the story behind it. That's just fascinating that you... So how do you work out the math? I mean, do you quite literally start with various different scenarios, play them out yourself, see what's balanced, unbalanced? I mean, how do you work that out?

Yeah, it's an iterative process. It takes a lot of playtesting. And the first thing to do if you're thinking of making a game is make a bad game and make a game with missing parts to it. I usually just throw the math against the wall at the beginning. I don't know, these all go from three to five and they won't at the end or the whole system will be thrown up, but you need something to experience and feel. And then at some point there is a tremendous amount of spreadsheets into every game. I live in Google Sheets, like card data and analysis and Monte Carlo simulations and high variance and low variance and bell curves and probabilities.

You want high moments and low moments. If you're playing a game and you're losing, and you can see and do the math and say, 100% I've lost, there's no way for me to win, it is hard to stay in that game. If you're playing a game though, and you go, you know what? If I draw this card and I roll this die the certain way, and that person doesn't notice that, I can do it. Now it's not going to happen, or it's going to happen so infrequently,

it basically is not going to happen. But as a player, you're looking for that Patriots being down 28 to three in the Superbowl and coming back and winning. But I feel like also there's moments in pandemic. I'm going to use pandemic for most of this. Cause I do want to talk about pandemic season zero coming out where you throw lifelines. It's basically like, Hey, if you're dying, open this box. Yeah. For those of you who don't play a lot of board games, Pandemic, which I didn't do the original Pandemic. I did the Pandemic Legacy, but I can speak about my friend Matt's game that's been wildly popular during a pandemic. I thought it was either going to be the least popular game

during the past year or the most popular. It's turned out to do very well. It's a cooperative game. The players are playing against the game, which if you don't play a lot of games sounds strange, but it's a lot of fun. I enjoy them. And so the problem we had in the pandemic legacy series that we designed together is what happens if the group is really doing poorly. And we came up with a system not to get too much into the weeds, but basically at the end of each game, your funding goes up and down. to bureaucracy which basically allows you to put more helpful cards or fewer helpful cards in the deck so if you're winning a lot we take some out to make it harder and if you're losing we put more in and make it easier um but you still might lose and so we do have that hail mary if you get to this

certain point if you've lost uh three games in a row, I believe, four games, I forget what it is in season one. We do it a little differently in each season. We're like, okay, we need to put on the brakes. This group is really struggling with what we're doing. Maybe they're new to it. They're going to stop playing. And then we feel like we just give you this little lifeline, then you can get the boost you need. You can get back into it and probably have a good experience because you got people together, so on and so forth. So coming from somebody who's played a lot of risk there's nothing worse than the two to three hour doom cycle of being in the losing you know you're losing in risk and you're you're such an irrelevant factor that you're not even really attacked that

much and you just sort of like wither like in Australia. Yeah. Does Risk Legacy have a way to rescue yourself? Like, can you invent nuclear weapons? There are nuclear weapons in it. Oh, why have I not played this? Risk, I, at one point, I don't know if it's still true, I designed more Risk games than anyone.

Obviously not the original. That's far older than me. It's from the 50s. but I had done Lord of the Rings and Star Wars and reboots and two-player games. So when I did Risk Legacy about 10 years ago, I brought all of those learnings into that game to make it shorter, to encourage attacking

not defending. The base game of Risk really encourages you to be a pacifist and get two other countries to attack each other until they're all worn down and then you bring your invading force in and yes, you can end up in that state where you're sort of this remainder or vassal country off to the side that like you're not winning, but we,

I'm not going to take my time to put you out of your misery yet. Cause I want to put my forces here, uh, risk legacy. And it's been 10 years. So I might get some details wrong. Um, you have objectives and you're the first one to achieve objectives and so you're looking for stars capturing

headquarters achieving objectives and so it's about tactical strikes uh the early games can be half an hour long and then we're adding yeah and then we what a lot of legacy games do is they start very simple they start like the core game and then every couple games you get new rules so you have new options new goals new tactics but because you're learning rules one at a time it's not a big overhead and so by the end like the final game can be two hours long or something but no you it's it is not a game that encourages turtling so is this interesting is this just you? Do you have a team? I do have a team. I'm a talker, as you can tell from listening to me.

And I always, when I worked at Hasbro, like brainstorming with people. So I worked as part of a team there. So I usually don't work completely alone. I co-design like I did with Matt on Pandemic Legacy. Eric Lang and I did a game called Death May Die. I work at Restoration Games right now. I'm one of the co-owners of that.

Our whole thing is we take old games that were out of print and we restore them and reboot them and put them back into print. We're like the J.J. Abrams of board games. So it's not like a nostalgia reprint. We're like, oh, what would happen if this game was invented today?

So we did Fireball Island, which was a game from the 80s. And we've done Stop Thief, which is a game from the 70s. We had a big Kickstarter for Return to Dark Tower. Dark Tower was a game from the 80s. That's our thing is we take these old games, whether they're small or big, and we put them back in. I have three designers I work with, my partner in the company and two younger designers. And we get on Zoom calls and we talk about things and divvy up projects and brainstorm and kick stuff around. One guy's really good at math, so he makes me look better.

Another guy's more of a storyteller, so he can do the writing. And I've somehow leveled up to management. I'm 50. I'm still always the oldest person on this podcast. Yes, you are. I thought I had a shot at 50, but no. No, no, no. I'm one year ahead of you. So, okay. Pandemic. We're in the middle of a pandemic and you presumably had already designed the next pandemic legacy game before the pandemic struck the world. Oh, yeah. We've been done for since a year ago, April. Right. Wow.

So what went through your head? How did it affect how it would come out? Did you change anything? Has there been any changes? We could. We couldn't. Okay. It was done. Like, oh, should we not let this get out this year is it too much should we delay well it's interesting so just to give some backstory in the pandemic legacy series the first one came out in 2015 and is set in real time and is about a disease

um the second one which came out two years later is set in the future and it's sort of a post-apocalyptic one we had known for years that this one was going to set in the future and it's sort of a post-apocalyptic one we had known for years that this one was going to be a prequel and it's set in 1962 and it's a tropey spy thriller so at the beginning there isn't really a disease there's soviet threats and plots so to some extent we got a little lucky about not being focused on a disease, but being focused on sort of a three days of the condor, James Bond sort of early 60s spy thriller. We actually started it the day after Donald Trump was elected. So it's a little bleak.

Sorry, I live in Massachusetts. It's, and we're like, oh, let's do something with Russians that they're, that's past tense. So fast forward four years.

Feels less past tense. It's less past tense. We did it like it's historical. It's two generations ago. It's 58 years old. And in our minds, it was like, this is the past.

We are seeing some russian board gamers who are they're not that happy and i feel bad about that they feel like you know this is still more of a living history we're very careful to say soviets cold war president kennedy like we were doing a what if like x-men first class movie sort of thing like yes there were no mutants during the you you know, Cuban missile crisis, but this movie, this movie said, what if there were right?

So we were doing that and it was a little distance for us, but because of the world since, you know, 2016 until now. And from the Russian point of view, they're like, this isn't as distant as we would have liked. And so I,

we were a little surprised by that. I do feel bad by that. There was, we thought it was more of, we're just telling a story like you'd see on Netflix, right? Set during the Cold War. How much research do you do? Because for instance, in Pandemic Season 1, you know, there's one of the characters is, you all start in Atlanta, the CDC, that's part of Pandemic non-legacy.-legacy. But there's things that you built into it that presumably you did some research into epidemiology to do. And then now you have

this whole story laying on top of it of the year that you're in. Presumably you had to do some research into that. What are your sourcing? So Matt read a lot about the CIA. And that gets pretty dark pretty fast and we're trying to do a summer blockbuster movie I watched a lot of spy movies to get the tone right so I was watching early James

Bond and three days of the condor like I said and I was sort of looking at what sorts of things happened in spy movies and we sort of brought those two things together and tried to find the right year to set this in. Um, I think it was 62.

Yeah, we ended up at 62. Um, and we kind of went from there and it, sometimes we got very granular about the GRU versus the KGB and different factions and the CIA. And no one knew what was going on when you're playing. They're like,

Hey, I'm playing a game and I played three games and I didn't play for a month and I picked it up and I don't remember the plot it became a very complicated tv show that people weren't engaging with so we had to sort of simplify at some point we simplified too much it was almost like space lasers and volcano layers like sort of James Bond like no this isn't right so we ended up somewhere and i think i saw a reviewer call it a little bit of airport novel a little bit of saturday morning cartoon and i'm like okay so is there or is there not a layer uh there is or is not a layer you're

correct so one of one of the things that's interesting about legacy games is they have spoilers and part of the fun of playing it is not knowing about legacy games is they have spoilers. And part of the fun of playing it is not knowing where the story is going to go or what you're going to find or not going to find. So since the game won't be out until October sometime, there's certain things that happen that we worked really hard to be a twist either in the game rules or in the story itself that I just will very carefully not talk about. Hey, Legacy fans, he just said October. Did everyone hear October?

I heard October. Okay. It was supposed to be out a little early. Obviously, COVID affected it. And the interesting thing about board games is the actual delivery of them is incredibly medieval at best. I mean, you take games and you put them on a ship and you sail them across the ocean

and they end up at docks and they have to go through customs. I mean, this has not changed in 5,000 years of human commerce because there's spoilers in a legacy game. And there's a lot of anticipation about this. They really wanted to launch it the same day. So I think it's in 15 languages and going to like 30 countries.

So unlike something like a movie release or a digital release, you have to translate it and make all these different versions and put them on ships. And they're all out on the water right now. And I think some are very close to hitting port and some are not. But you really have to wait for all of them to come together and then get into warehouses and then get into the distribution system. So October seems like the day that that all happens. I've never considered piracy more than at this moment. Getting on the high seas and taking one of the ships.

Well, I would give you one, but I don't even have one. Wow. The reviewers, they airship some in, but you're paying games to fly coach and they end up being not quite that bad, but basically it costs like $50 a game. So they only do that in a limited amount. So the reviewers got them. I might get some soon. Otherwise, I'd try to get you one.

I'm just imagining Sarah heading towards this giant container ship in her speedboat in her AK-47, seizing control merely to open one of the containers, take a board game. And then get back on my little skiff.

Get back on your skiff and head back out into the deep blue sea. Yes, that's me. Yeah. The pirate. Okay. So I will just tell you

on behalf of your fans that we are planning our, like, we are going to take time off work and, like, need to hire babysitters and stuff. So the more advanced notice you can give us of the exact date, we have it ordered already.

Like when it's going to arrive at our house, like I just think, I think I speak on behalf of all fans, like give us the date as soon as you can. Yeah, I am on Twitter. And when I know the exact date, I will be shouting it from there. Okay.

Well, I actually don't know it now, but even when I do know it, it'll probably be a couple weeks. They'll want to confirm it. Don't mention it. Don't mention it. Okay. Now everything's in the warehouse. This is a go date.

Okay. So sometime around the beginning of October, I'll have a real date. I'd like to take a moment and thank our sponsor ExpressVPN. ExpressVPN lets you access internet as if you're from a different country. Netflix has different shows and movies available depending on where you are. With ExpressVPN, you can unlock thousands of new shows and movies from streaming libraries around the globe. There are hundreds of VPNs out there, but ExpressVPN is ridiculously fast. You can stream everything in HD quality with zero buffering. ExpressVPN is

available on every device, phones, laptops, tablets, even your TV. ExpressVPN works with many streaming services, Netflix, Amazon Prime, BBC iPlayer, YouTube, and many more. You can choose from almost 100 different countries. It's so simple to use. Just fire up the ExpressVPN app, change your location, hit connect, and then refresh the page and the show or movie you want to watch will magically appear. If you use my link right now at expressvpn.com slash opinions, you can get an extra three months of ExpressVPN for free. That's expressvpn.com slash opinions. So let me ask you this. I'm somebody who's never played a legacy game. What's the gateway drug legacy game? Because it sounds like Sarah is,

she's fully committed. She's got that whole 24-hour thing going. But what's the gateway drug? You said there's like 30-minute legacy risk? Well, if you've played a game, there's legacy versions of Pandemic, Machi Koro, Risk, Betrayal at House on the Hill. It's a horror game that I actually had some design hand in 20 years ago.

If you are listening to this and you've played one of those games and you'd like to play the legacy game, start with the one you know. If you're like, I like Risk, start with Risk. Risk is a little different. It was my first one. So it does some things a little differently. Some say better, some say worse, but it's less of a coherent story and more of a just complete, it's like Stan Lee wrote it in a fever dream. No, more Jack Kirby. Anyway, It's like Stan Lee wrote it in a fever dream.

No, more Jack Kirby. Anyway, the one that has achieved the most success is Pandemic. So if you play Pandemic, you're one of those people who's like, I played this during quarantine and I want a longer experience. Starting with Pandemic Legacy Season 1 is the way to go. Season 2 is a darker, harder middle chapter. Some people like it more. Some people like it more, some people like it less. And then season zero is the finale to it, even though it's a prequel.

It comes at the end. You could play it first. The story still works, but it's probably one of the more complicated rule sets. Every time we assume you've played the previous one and we start in a slightly harder way. You don't have to binge them. No, you don't have to, but it sure is fun. You talk about the storytelling. And again, I'm not going to give any spoilers for pandemic, but for instance, the government's not always the good guy is maybe a way that I'll phrase that in pandemic, for instance. And I'm wondering how much of your own, how much is it like just true storytelling? Like this would be a good story, and how much of this is your experience in life? Some novelists approach it as a totally separate experience from themselves, and some are speaking from their own experience. about things I've consumed over the years. I mean, I played a lot of D&D.

I read a ton of comic books. I watched a ton of TV and movies. And you just start falling into plot twists and story structure. And when I tried to do something a little more complex, I did a game called Seafall, which was both more complex in its tone. It wasn't based on a game. It had a much more subtle, in-depth story. It was by far the one that people liked the least.

And what I realized is people tend to... Well, not everyone. Some was by far the one that people liked the least. And what I realized is people tend to, well, not everyone, some people like it the most, but overall is the one that was liked the least. People are playing for two games, coming back two weeks later, playing for two or three games. So they forget stuff and they're very much treating it like a TV show that they sort of play once in a while. And when you put stuff in that subtle or deep, they just don't get it or they don't remember it. And then they get confused and just ignore the story entirely. So we found that we did have to go to summer blockbuster,

like Pandemic Legacy Season 1. The Captain America, the Winter Soldier was a big inspiration for that. Oh, interesting. Yeah, I see that. So you're designing games professionally. Does that mean you also play games recreationally or are you burned out? Yeah. And if you do play games recreationally, what do you play? I would love to play games recreationally. Board game design tends to be a long job. There's some people who are wildly successful at it.

I am successful at it. I make a living. The past couple of years, I put away a little more than I needed to. So I'm in a good place, but that requires six or seven days a week, eight hour days, like sort of working on stuff.

So oftentimes at night, it's like, do you want to play a board game? I'm like, no, no, I, I just, I don't want to go back to work now on a weekend. Or if I took some days off or some friends are coming over, I love them just as much, but like, I love them at like 10 in the morning when I haven't worked. I don't like them at eight at night after a day of work. Cause that's what I just did for work. But I tend to play games that aren't necessarily board games. I play role playing games. I play computer games. I play online games. So I still like games. I watch sports a lot, which are, you know, games with real people. And so I like games as a structure and I do play board games. But it's weird. Even if I'm playing games, there's

sort of a list of games that I need to play. Oh, this game's popular. Someone told me I should play this. I know this designer. I should be able to say something about their game. So even then, it's a little bit of a checklist rather than, oh, I want to play this. It sounds fun. That how the sausage is made, you like the matrix, you can see all the math from the beginning. And so you're not fun. which is usually the way they're saying, I'm trying to win and my strategy isn't working, so I'm going to blame the game, which we all do, but they just say it with more words. I try to be fun. I try to be like, oh, that's fun. I mean, I'll have things to say after.

I like this, I didn't like this, but most people say that about a restaurant or a TV show. What I've discovered is, you know, things are hard during quarantine. I'm crankier during a game if I'm not winning. Ah, I'm not going. I've lost this game. Blah. That's my wife, who's a great gamer, and we work together and stuff.

She's like, you say that all the time, and then you win. No, this time I mean it. Oh, I won. What have you thought of, you know, the world response to the pandemic versus the pandemic legacies that you've done? How are we doing uh you do check the news right this is a news podcast pandemic legacy goes by months by the way and so our joke in our house is like things get real dark starting in like june to august well there's

yeah the pandemic legacy games start in january and there's usually a couple plot twists it's like a three-act play so somewhere between march and may you'll usually get something and usually august through october depending on where we structure it you'll get something else that's more of a significant act change than yeah stuff but yeah we're worried based on that yeah i'm not looking forward to september I'm like, oh, no, it's the end of Act Two. And because April was a mess. And in pandemic season one, often when you talk to me, like April was a mess. And then we sort of got it back together in the summer.

I'm like. Yeah, yeah, yeah. So this has to be a little bit weird as you sit here and watch something that you've spent so many so much of your life building. You know, there's a thing to shut down commercial air travel in pandemic, for instance, which just cracks me up. When you pull that card now, you're like, oh, no, we're doing that right now. Oh, my God. Yeah, it's got some uncomfortably close things. But I have to say, given 2020 so far, the fact that I designed a game that has some weird parallels is oddly the least weird thing about my life right now well rob this has been great um we have i i have learned a

lot and i'm now i now have it on the list i need to do i need to play legacy and i i think i've got to start with risk because that's the thing I'm familiar with. Start with risk. Get some people who like risk. Get together. I think you'll enjoy the complete nihilist weird comic book approach to it given what you've said. Well, before I grew up and became the wise mature person you see before you, I had a little bit of a temper. And I specifically had a temper when playing Risk. And so my oldest friends will say,

when they hear like I'm mad or something, they might say, are you throwing the Risk board mad? Which is recalling an actual event. But now that I know I can get nukes in Risk, I can just nuke people rather than throw the Risk board. Yeah, we gave you a different outlet. Yeah, but no, the risk game has been causing table flips and board throws since 1959. It is an absolutely psychological test on how well you react to being on the thin end of the bell curve when rolling dice. Like, I should have won and I didn't. And

some people do not handle that well. Here's my last question. You've had all these careers, you said, but you end up in board games, which has to be, you know, talk about the end of the bell curve. Like very few people get to do this for a living. So you have a really unusual job. If you didn't get to do this,

what's the really like mundane job that you would have done otherwise, you think? Well, advertising copywriter was really... I had some fun times there, but most of those jobs are, can you write a brochure for a forklift so that factory managers will decide on our forklift? Yeah, that was my assignment day one in a job I took. I'm like, oh no. I don't know. I've always been a creative type. I don't think I would have lived well or fit very well. I doing a more mundane

job. I'd be a bad project manager. Uh, I'd be a horrible phlebotomist. I would pass out immediately. Um, I would probably be something where I could talk a lot and try to get people to do things, but not sales. So I don't know. Luckily, I don't have to figure that out because this is working. That's awesome. Do you have another game in mind? Are there, you know, for legacy stuff? I'm working on about 12 games right now between restoration games and individual games at all different aspects of design.

Now, the restoration, I have a team of four. So there's a whole bunch of us working on about seven or eight games there and then three or four of my own, two of which are legacy games, but will not be announced or out for a couple of years. They take about two years to make. Well, this household will be purchasing your legacy games whenever they come out whatever games they are we're very into them here so thank you thank you thanks so much for coming this has been a delight um i always love to find new and interesting ways to both have fun and use your mind at the same time and and experience a good. So this is interesting. And I'm going to dive in, Sarah. I'm going to do it. I'm going to dive in. Okay. We'll talk after what you thought.

Yeah, absolutely. So thank you, Rob. And thanks to all the listeners. And please go rate us on Apple Podcasts and subscribe if you haven't. And of course, check out thedispatch.com. We will come back to you haven't. And of course, check out thedispatch.com. We will come back to you on Thursday.