The Fertile Octogenarian

>> Troy Sinek: All right, I gotta make sure that I stick the landing on this one. I got Tom Church breathing down my neck. Welcome back to the Law Talk podcast from the Hoover Institution, coming to you, as we always do, from the faculty lounge at the Epstein NYU School of Law, fully accredited and also proud to announce, no longer a Superfund site.

I'm your host, Troy Sinek, former White House speechwriter, co founder of Chitin Key Media, and lowest scoring player in Harlem Globetrotters history. And I am joined, as always, by the Hansel and Gretel of the conservative legal movement. They are, Richard Epstein, the Peter and Kirsten Bedford, senior fellow at the Hoover Institution, the Lawrence A Tisch professor of law at NYU and senior lecturer at the University of Chicago, and John Yoo.

Visiting fellow at the Hoover Institution, the Emmanuel S Heller, professor of law at the University of California, Berkeley, and former deputy assistant attorney general in the Bush administration. Fellas, good to be back with you. I wanna thank Tom Church for stepping into guest host the emergency edition of the show that you guys did about the Trump indictment.

I wasn't able to make that because I was recovering from a cut rate Mexican cosmetic surgery. It's gone pretty well. I'm still unable to perceive the color green, but otherwise it went pretty well. But Tom, who has now, lets be honest, basically become a vulture circling the carcass of all my podcasts, waiting to swoop in.

He did a terrific job, and you guys did a terrific job. It's actually fun for me to listen to it for once. But I should note, there has been another piece of big news while I've been away, which is that there has been a major birthday in the faculty lounge.

Professor Epstein, do you have anything you'd like to disclose?

>> Richard Epstein: Well, I don't know whether I'd like to disclose it. There is a biblical session about, you know, three score and ten is normal. And if by strength it be is four score. I am now 18 years old, back from cancer surgery, talking away a mile a minute, I hope.

I'm grateful to be here, grateful to have so many friends, had a wonderful birthday celebration at NYU, and my family celebration up in Westchester. And yes, I mean, I am doubly happy. A birthday is nice, but when you've had some of these scary medical adventures and you've managed to come out of them, you feel a special debt of gratitude.

I will only make one observation, and this is a more technical one, what do we care about medical innovation people often ask. And, well, my particular tumor was located at a very difficult place near the kidney, and there was a danger you lose the whole thing. But there are techniques developed in the last several years which essentially allow you to freeze the organ and to remove the tumor without taking the kidney.

For somebody who's my age, losing a kidney is an open invitation to dialysis. And so when people always ask you, does medical innovation matter? It turns out every five years, there's something that wasn't there the year before. And there are gonna be lots of people who essentially are going to be fortunate they have their this is this year rather than ten years ago.

This is just a general preview for people to think that when you start talking about medical innovation, it's just sort of a kind of errant app claptrap and so forth. It's a very real and powerful situation. And whatever we have to do in terms of medicine, whatever we have to do in terms of intellectual property, whatever we have to do in terms of regulation, we should remember that the improvements that can take place are life and death matters.

And so I'm extremely grateful for everything that the medical health care system could done, because I'm quite happy to talk about the many weaknesses of the medical care system in the insurance system. I'm not prepared to do my own surgery, okay? And that's what I would say.

>> John Yoo: Did you just say they froze your kidney?

 

>> Richard Epstein: Yeah.

>> John Yoo: They froze your kidney, and then they took the cancer off. And then did they put it in a microwave and defrosted it?

>> Richard Epstein: Well, they do find ways more subtle than that, John, to do it, yes. I mean, look, you need a desperado doctor who's right up on this thing, and you have to have a lot of confidence that when you go in there, that using the most advanced techniques, you can master them.

And it all worked out swimmingly well, for which you have an enormous aesthetic gratitude. So anybody who goes to Weill Cornell Hospital, where I went, should say, it's nice to know that you have that extra measure of protection. And I think it's really important to understand temperature changes like this are always critical in many cases.

With open heart surgery, you have to do the same kind of thing, and what you need to do is to expand the network. Just one sort of general observation about this is the rate of surgical innovation has generally been far higher than the rate of pharmaceutical innovation. And there's one reason, which is the FDA does not regulate surgery.

And so essentially what happens is a decentralized knowledge. Somebody starts it, somebody else picks it up. Doctors are inveterate gossips on this stuff, which means that the information moves very rapidly. There's central bulletin boards which allow the information to be transferred in an ordinary situation. So that the entire system runs on private innovation and comprehensive diffusion of information, which is the way it is when you go to the FDA, there's this concentrated control which can slow everything down.

It's one of the issues which is actually related. It's one of the things that we might be talking about today, the abortion pill. But it's a very, very interesting system, and it's extremely instructive.

>> Troy Sinek: Were you like Reagan right before you went under the knife? Did you go, are you all libertarians here?

 

>> Richard Epstein: No, let me tell you what goes on in a hospital.

>> Troy Sinek: You didn't ask me. Well, you didn't ask them what-

>> Richard Epstein: Before you let them cut. John, I hope this is jocular. The last thing you wanna do when you go under the knife is to talk about the political affiliations of your judges and so forth.

The one thing that was really clear about this hospital and every other hospital I've been to in recent years is that the single most important mantra of diversity has the following absolutely vital situation. The people who form these medical teams are drawn from all over the world, and they have all different kinds of backgrounds.

There was one of the orderlies, you know, who took me down, who was a French soccer player, and things like that. And the key thing is having integrated responsibility, which everybody understands how everybody else worked. And that-

>> Troy Sinek: Your orderly was Killian Mbappe.

>> Richard Epstein: Well, no, I think he's a bit too high.

It's a would be or has been of that sort. But it's amazing where all these people start to come from and you have to meld them into a single team. And you've got these cultural differences, these racial differences, these national differences, these background sentiment differences. And the great achievement of a hospital is to figure out how you make them work as a single, organized team with your surgeon as being the captain of the ship.

But as I got every other ship, it's not the only person who doesn't matter is not just a captain. It's everybody else who's working under him. And that's the difference between life and death in these settings. So, I mean, what it does is it gives you a real awareness of just how fragile life turns out to be and a great deal of relief when you see the work is done extremely well and you live happily to tell about it.

 

>> Troy Sinek: The dynamic on this show is so impressive to me cuz, Richard, you are the only person who I could congratulate on a milestone birthday, who would then turn it into a homily on medical innovation. Had this been a milestone birthday for John, I feel relatively confident that it would have turned into an orgy of self-congratulation.

That would have been physical opposite of what you had just.

>> Richard Epstein: John we talk about which delicatessen he wanted to go.

>> John Yoo: Yeah, of course.

>> Richard Epstein: He's absolutely right. But when you've been out of commission for a couple of months, for the first time in a professional career that goes back to 1968, you should give forgive at least a minute or two of introspection.

The really good news is I went out to lunch today and so forth and somebody said, you're still talking a mile a minute. I can't tell you how sweet those words were.

>> John Yoo: You had cancer of the mouth. I mean, come on, this is kidney, not mouth. The Biden administration would be better off if you had cancer the mouth.

 

>> Richard Epstein: He's six months older than me. God help us.

>> Troy Sinek: All right, fellas,

>> Richard Epstein: no comment.

>> Troy Sinek: Let's start with the biggest legal story of this week, which is Fox News coming to a last minute settlement with Dominion, the voting technology company that was suing them for $1.6 billion in a libel case stemming from the claims, of course, that Fox put on air in the aftermath of the 2020 election, suggesting that Dominion may have played a role in voter fraud.

Fox agrees to settle the case and pay out $787.5 million. This is being reported as the largest publicly disclosed settlement in a defamation case in american history. Richard, one of the things that legal analysts were continually cautioning us about in the run up to this case was that the legal standard for libel in the US is so exacting that even if it seemed to a layperson like Fox was culpable here, they were still going to have perhaps a reasonable chance in court.

This settlement would seem to suggest that that did not end up being Fox's conclusion. But how do you read this? How likely do you think Fox would have been to come out on the losing end had this gone to trial?

>> Richard Epstein: Well, there are two issues you'd have to worry about.

The first issue is liability and the second issue is damages. I think that actually Fox, if they had played this case very carefully, could have reduced the level of damages, if only because Dominion becomes something of a national hero when it turns out it brings the suit against Fox.

And so in order to get the damage level up to the level which it actually was, you'd probably have to show some lost business to the company, its inability to renew existing situations or get new contracts and so forth. Nobody wanted to talk about the financials. I think there would have been real vulnerability on Dominion for that side of the issue.

On the liability issues, the actual malice standard is in fact the double edged sword. What this standard says is they're not talking about malice in the sense of malevolence. They're talking about malice as essentially where you know that what you say is false or you're in reckless disregard of the truth.

And it turns out most people can make that. But the moment you can make of it, think of it as this way. Now, you've not only shown that the words hurt, this is not just a strict liability case, but you show that these guys really did something terrible.

So if you meet the hurdle, in fact, you're going to get a larger amount of damages proving actual malice than you would get if you weren't allowed to introduce those elements into the case. And there's just too much evidence there for Fox to be able to shut it all down.

Whenever you have internal communications which say that we say publicly, we know to be false, and we're doing it because we think our viewers want to hear it. That's an open invitation to say it's not only reckless disregard of the truth, but outright falsity. Now, they could try to explain it away, and one of the ways you try to explain it away is they were just reporting on the views of others, not stating views themselves.

That turns out not to be an iron wall because otherwise the circumvention of the libel rules would be too easy. You'd find some joker out there who says something, you believe that what he says is true, and then you put it on the air, said, Fox is not taking a position, he's just putting it out there for you to see.

But of course, if it comes on this particular network, it's going to be at least possible for a jury to say that Fox and its particular reporter or spokesman were one individual and you could impute the information back up. So I don't think that particular defense would work in this particular kind of case, especially given the background stuff.

The mistake that Fox made was waiting so long. What they should have done is settle this suit a good long time ago. Because one of the things that happens in a defamation suit, if bad stuff is coming out about you, there's nothing you can do to sue. It's what they call record libel proceedings.

That is, the rest of the press is entitled to say that Fox was sued for the following sins and then list all of them. And there's nothing you can do to attack that if it is, quote unquote, a fair and accurate summary of what happened. It didn't seem in this case that that condition would not be satisfied.

So it turns out everybody else can make a field day of it. So the advice that you give to them is to settle much earlier than they did. They certainly were right to settle now. Now, why did Dominion start to settle? I told you, I think the bigger weakness was not on liability.

I think it was probably on the damaged side of this thinking. It's also, there's a funny thing that happens in liable cases. You're trying to throw dirt on the other guy. The other guy is trying to throw dirt on you. So even if you win one of these liable cases, there's always the probability that people will think less of dominion in ways that they would rather not have, want to be on the stage for an undue period of time anyhow.

So this is a case in which it follows a maxim that was told to me in 1968 by a great lawyer named Hermione Brown when I first went out to USC. What she said to me is, you could always tell a good business deal when everybody's happy, and you could always tell a good settlement when everybody's a little bit unhappy.

And so by that standard, this was a good settlement. It turns out, I think that the parties each did better by settling than by continuing on. The real losers are the rest of the press, which doesn't have the opportunity to cover this thing in what would be a field day of allegation and counter allegation, which neither of these two parties wanted.

Congratulations for them to settle. Next time, Fox will be a little bit more careful in the way in which it does this sort of thing. But I think in the end, this is a story which has come, given the terrible things that happened before, to a relatively happy closure.

 

>> Troy Sinek: John, Fox is not totally out of the woods here. Smartmatic, which is another one of the voting technology firms that was singled out in these post election allegations. They still have a suit pending against Fox. They're asking for even more than Dominion was, that's a $2.7 billion suit.

And one of the things thats interesting here is that youve got the dominant conservative media company in the country as the defendant in these cases in a period where it is conservatives in particular, who seem the most interested in increasing the legal exposure of media companies. You had Donald Trump at multiple points in his presidency saying that America's libel laws are too restrictive, that it should be easier to sue media companies.

Just in the past few months, Ron DeSantis supported a bill in Florida, which I think we talked about on the show, which would have made libel lawsuits easier. And then on top of that, you have the growing slightly different, but the conservative sensibility that more needs to be done to rein in the social media companies.

Zooming out from all this a little, what do you make of the sort of general legal landscape around defamation? Is there merit to the criticism that the world of New York Times v Sullivan, which is the Supreme Court precedent, we're living with when it comes to defamation is too restrictive, that we need to be able to go further in holding media companies accountable?

 

>> John Yoo: This is one of the reasons I think, that Fox shouldn't have settled, or if they did, they settled for too much. Or they should have waited to see what happened in the courtroom trial because the standard to prove that they defamed, Dominion, and then the follow on lawsuits, Smartmatic, individuals, I guess individuals could well sue, too.

Could sue Fox. They're all going to point back at the Dominion settlement and say, pay up now. But that standard is really high. It's the absence of malice standard. And even if they lost a trial, I could easily see the courts of appeals or the Supreme Court reversing a verdict based on that standard.

For example, this judge held, as Richard observed, that Fox was not allowed to say that its hosts were reporting what the White House and the president were saying, that it was their own statements of fact. I don't know, I mean, I would like to see that litigated. I don't know if a judge can just sort of make a finding about that before there's a trial.

Anyway, the thing that would have happened, I think, if it got to the Supreme Court was you would have had all these liberal media companies which love to dump on Fox and love to dump on Donald Trump. Their self interest should have been to support Fox. If you're CB's or CNN or the New York Times, you may need the absence of malice standard more than Fox does in the long run.

And I would have loved to have seen what those media companies would have done. They normally should have come in on the side of Fox. And so that's why I think maybe you wouldn't have seen the Supreme Court change the absence of malice standard. You would have seen all the usual institutions that oppose conservatives, like universities, like the media, and saw the cultural institutions, they all should have come in to support Fox in the end.

It would have also been ironic to see Fox saying, we would like to keep this great old liberal precedent of New York Times versus Sullivan. You're right, Troy. There are voices in the conservative movement have called for reexamination of New York Times versus Sullivan. Justice Thomas wrote a concurrence a few years ago calling on the court to re examine Sullivan.

I think he's right that the standard doesn't come out of, excuse me, the First Amendment to the Constitution. It's something the Supreme Court in Sullivan sort of created in the 1960s. But I think it's actually led to the vibrant, innovative press that we have today, which I actually think is a better thing than the older days.

What we would have, I think, without that standard, which would be smaller number of newspapers, smaller number of cable news channels, smaller number Internet sites, much less vibrant discussion and debate and wild things said. Even though Richard and I have both been on the receiving end of crazy, wild things, I still think that's better for our democracy and more consistent with the First Amendment.

 

>> Richard Epstein: I actually thought New York Times against Sullivan was deeply flawed. And I wrote about this, I guess it's close to 30 years ago. What would I have done if I had been the rest of the press? What I would have done is to say the standard is, in fact, correct.

It is very exacting. And we want you to know that the threshold was met in the Fox case. Virtually every other case that we've had, we cannot find the distinctive features in which people are saying one thing to each other off stage while they're saying another thing on the screen.

That what you should understand is that this does not upset the vast number of precedents in which the press has won. And the reason I'm not entirely happy about this is that there are two things that happen. One is if you get weak, weaker protection for reputation, it turns out the willingness of people to enter into the public sphere knowing that they could be freely defamed is reduced.

And so there was at the time of New York Times and today still, the question, is this going to keep the ablest people out of politics on the simple ground, I don't need this. I may take a low pay, but I can't take the fact that people are going to constantly pummel me.

I know if there's a defamation law out there, even if I don't use it, it's likely to shift the discourse to some extent. And the other thing is, if you start looking at the credibility of the press precisely because everybody knows that it's not responsible when it commits outrageous forms of libel.

The trust in the press is now down about the same level it is for the trust of Congress, which is under 20%. That, in part, is a function of the fact that they could trash everybody else's reputation. Indeed, one of the ironies is there was a piece of legislation which I thought was quite sensible.

And what it said was, so long as the defendant admits that its statements were false, the plaintiff will not be able to recover damages. This will help the plaintiff restore the reputation by having this acknowledgement. Do you know that the argument against this by the press, which fought fiercely, it was as follows, they say, the problem is, if we admit that we were false, it's going to hurt our business reputation, which is a very nice way of saying, in fact, reputation matters to them as much as everybody else.

In fact, the harms associated with disruptions are very, very great. In this particular case, I said, I think that Dominion was quite weak on the ability to get those damages. I think all of these guys are, I don't know anything about the particulars of the other cases, but generally speaking, in a case like this, there are two forms of damages.

One is said, well, you're a big guy and you said bad things about somebody else, we're going to basically assume that the natural and probable consequences of what you said is negative. We're going to award you general damages without, without proof of particular kinds of loss. But the strong defense to that is the one that I mentioned earlier, namely that you look at this company, you say, is this business gone up or down since this thing has happened?

And if it turns out they haven't lost any customers, they continue to get new kinds of business. If it turns out they could appear at trade shows and show their face and all the rest of it, the damage element of the case becomes much weaker. There's always punitive damages, which you could probably sustain in this case.

The Supreme Court rightly has said, we make sure that punitives are relatively small, multiple of actual damages. So if you knock down the actual damages, you knock down the punitive damages with it. I think, in effect, this was a pretty good development. I disagree with John, and I think what happens is the fact that you settle somewhere in the middle means that both the people who make these terrible defamation statements are going to be cautious.

And I think people who claim to be defamed are going to be a little bit more careful when they realize they may have to prove actual losses, which could be difficult to do.

>> Troy Sinek: The other big legal controversy broiling the right last couple of weeks has been these series of pieces that ProPublica, the investigative journalism outlet, has been doing on the relationship between Clarence Thomas and Harlan Crow, the big conservative donor out in Texas.

The thrust of which has been, although if you read the pieces, this is accomplished largely through innuendo, that there is an improper and unethical relationship between the two because Justice Thomas and his wife have taken part in a number of luxurious trips with Harlan Crow over the years, fully funded by Crow.

then there was also a subsequent piece revealing that Harlan Crow had purchased Justice Thomas's childhood home in Savannah, and that he's allowing Thomas mother to live there rent free. Crow has said that he bought the property with an eye towards eventually making it into a museum. So, John, as many of our listeners know you worked for Justice Thomas.

You were one of his clerks at the Supreme Court. The implication in all of these pieces is that this relationship is at the. The least unsavory and maybe unethical, maybe unbecoming of a Supreme Court justice. And you've seen calls exclusively from the left for Justice Thomas to be investigated, even in some really hyperbolic cases, for him to resign.

Bottom line here, in your judgment, did Justice Thomas do anything wrong here?

>> John Yoo: So first, he's not gonna resign and he's not gonna go anywhere.

>> Troy Sinek: Of course not.

>> John Yoo: Yeah, and this is the iteration, more than 30 years now, of these kind of cooked-up alleged scandals that the left has used to try to harass him out of office.

And I think it just makes it all the more likely that he will serve even longer than he was planning to before, so good. But I think this is part of this broader problem where our people in government think that we should sort of legislate morality and even try to use the criminal law to enforce these when it's clearly being used for policy differences.

As you pointed out, Troy, I don't see people picking over Justice Ginsburg's disclosure forms or Justice Breyer's disclosure forms and giving them a hard time. And then I think there's this actually an interesting separation of power issue here about whether Congress even can legislate ethical codes for Supreme Court justices.

In my mind, the Constitution provides the regulations, right? You can refuse to give advice and consent when they're nominated. You can impeach them. And if a litigant feels that a justice is biased, then they can make a due process claim against the judge or ask for a different judge or ask for a judge to be recused.

In this case, Harlan Crows never appeared in litigation. As far as I understand, neither he nor his company or his financial interests have ever appeared before the court. And if he did, Justice Thomas would have to recuse himself. And these extensive reporting requirements have an exception for receiving gifts of, what's called, I think the phrase is, quote, unquote, personal hospitality.

And so Thomas wasn't required to report going on free trips with Crow. I actually don't think there's anything wrong with it anyway. But if he had, he didn't even have to report. And the reason why I think that's important is because the courts, the judges themselves, then changed the rules just recently to say, well, even when you're accepting personal hospitality, you have to report if you get, I think it's free air travel, transportation, or free stay at a hotel.

So it shows that actually, the judges didn't think until that change was made just a few months ago that the rules required you to report any of this. So, to wrap up, I just think it really is just the latest episode in these efforts to try to attack and undermine the legitimacy of Justice Thomas, especially when his views are finally sort of pointing the way for the conservative majority on the court.

 

>> Richard Epstein: Look, one of the things about this is that Thomas actually did not just do this. He went and got himself some advice about whether or not he was required to report and found out that the answer to that question was no. So I think there are two kinds of issues to disentangle.

One is, can you basically say for somebody that he is deserving of censure when he violated no known rule? And I think the arguments against retroactive legislation or retroactive application of new principle is extremely strong, and so that they should not criticize him. There is a second movement trying to do side-by-side with this, of sort of saying that everybody on the Supreme Court has to meet more exacting disclosure requirements when they get free gifts or something of the sort.

I have a genuine uneasiness about this. The first question that I ask is, is there any sign of a serious form of public abuse at the Supreme Court level, given the sanctions that John indicated already in case? So are there people who say, get these gifts, and then hear cases from the people who bring them?

Are there any efforts, essentially, of covert influence that take place even for litigation of which these parties are not a part? So if you do work with this fellow, and then he has an interest in some securities litigation, and he sits there on these vacations and say, hey, boy, it would be really nice if this particular cause of action was shut down, that would be, I think, very, very serious.

But nothing like that is alleged. And, in fact, the ProPublica story was kinda sloppy on all the details. I think there was a nice piece, I think it was by James Taranto in the Wall Street Journal, sort of indicating how threadbare these allegations were. And so essentially, one of the things that you sort of worry about is that the defamation law.

I think there's a credible argument to be made that the kinds of stuffs that appeared in the ProPublica situation were essentially sufficiently misleading, were done with actual malice, and that maybe it should be defamation. My advice to Justice Thomas is never suing a defamation case if you're a public figure, because it allows people to repeat the libels with essential impunity.

But I do think, in effect, understanding that as a phenomenon should lead people to realize that you don't want to put a great deal of credibility into a series of remarks which are made by people. Whom, if you actually apply the rather exacting actual malice standard, may have fallen short of what their basic legal duties are.

I think the fact that it is wrong is the more important thing. I think the fact that there's no suit about it just indicates that Justice Thomas is right not to bring these kinds of cases. It would be terrible on his particular part. But the fact that he does not want to sue doesn't mean that ProPublica makes these allegations, when other academics support them, that they should be allowed to talk, okay, freely about everything that's going on without having to face at least some social pushback for what they've done.

So people like John, a great loyalist to a person whom he served when he was on the Supreme Court, and I think, in effect, more people, ought to speak out, and I hope this thing will start to quiet down. If you're gonna try to get somebody, the basic rule of thumb is, or at least should be, that if you wanna get a Republican, for essentially, improprieties, you have to have some Republican support for that.

It can't be all partisan on the other side. That's why the successful impeachment would have taken place with respect to Richard Nixon and why all the other cases were essentially political acts. Because there was nobody of the president's own party who essentially was prepared to say, we think this is an appropriate response.

 

>> Troy Sinek: John, I wanna pick up on something you said earlier. It's clear enough why, if you were a progressive activist, you'd have Justice Thomas in your crosshairs at this moment. You've got a big conservative majority on the court. You'd like Joe Biden to be able to fill another seat.

Justice Thomas is the oldest justice. He is now by far the longest tenured justice. He's been there 14 years longer than Chief Justice Roberts, who's the next most senior, so almost double as long. But it's not as if this is new. Clarence Thomas. Thomas has been, as you suggested, far more than any other justice, a target throughout his career.

And yet he is sort of universally reckoned as extremely affable figure, even by his liberal colleagues. He had that comment from Justice Sotomayor a few months ago. He's generally reckoned to be a man of high principle. Why does Justice Thomas so consistently work his detractors into a frenzy?

 

>> John Yoo: I've seen this for many decades, and I think its because he's black. I hate to say it, but I think if a white justice had the exact same views, and I think some of them are close, like Alito, for example, he would not receive 100th of the level of crap that Justice Thomas gets.

But I think what drives people nuts on the left is that he's a black conservative, that he won't hew to a party line, and I've just seen this over and over again. And I think the one thing that is also worth mentioning about this is that he doesn't bend in the face of criticism.

I think the more that the left goes after him, the more he's gonna stick to his principles, he's very stubborn. I think anyone can see that he is affable and he is a great fellow, but I think he's also stubborn. He's not going to be ma'a out into moderating his views.

Now, the thing that could easily have happened, I think, is that he could have ended up having a career where his views never ending up mattering all that much that his views were. Would I give as an example, like Frankfurter, for example, who I think was widely beloved by conservatives in the academy, but his views never really persuaded anyone on the court in the long run.

And I don't think that's the other thing in addition to him being black and conservative and receiving a lot of, I think, the hate that you see directed at people like Tom Sowell, for example, too. But the other thing is that he's actually, because he's principled, because he won't be pushed off by political texts, his views are actually winning out now.

I mean, he hasn't become like a Frankfurter, in fact, you look at where the court came out on Dobbs last term, where the court came out on guns and Bruen. I think whether the court's gonna come out on the Harvard affirmative action case, where the courts come out on religion.

These are all Justice Thomas's views that he first started seeing out when he joined the court, when people thought there was no way that a majority would ever agree with him. So I think that also just sort of compounds the infuriation that the left already have with him.

 

>> Richard Epstein: John is basically right. I mean, people on the left regard him as a traitor to the cause. I think it's much harder to be a conservative African-American than it is to be a conservative white person, because one case has an element of perceived treachery and the other case does not.

And I commend the chief justice, or rather Justice Thomas, for what he does. And let's, of course, be very clear. When I say I praise the justice, I'm not saying I agree with every decision that he or she has written. Quite the opposite, I think a really important evaluation of these justices is not just to say that they're either conservative or liberal.

But to break it down a little bit further and to give your views on particular opinions that they've expressed, which you can or cannot disagree with. So two of the worst opinions, I think, of Justice Thomas have been beach communication, which is one of these very highly deferential standards.

And the other one was his print paper in the Oil States case, where essentially he allowed the absorption of all trials with respect to patent disputes, to go back to the PTO. But I'm not gonna sort of say, my God, that you can't let this man sit on the Supreme Court because he's done that, so many very strong opinions that he had.

So, I think what we have to do is we try to get people to slow down and to say, look, all of these records are very mixed, these people have some independent power of thought. What happens is a Supreme Court in which you only have people who start to agree with you is going to be a place in which there's little intellectual ferment or discourse.

And that what we have to do is to recognize that the price for having intellectual vigor, is that people will sometimes disagree with us. And our most deeply, we held convictions, and that's true of all of these guys. I mean, do I agree with Justice Roberts on locker against New York?

Not on your life, that doesn't mean I want him to disappear. And so I would hope that people on both sides of the political spectrum would stop thinking in terms of denunciation. And removal and start analyzing particular cases with a willingness to think that the guy with whom they disagree with strongly may, after analysis, turn out to be correct.

 

>> John Yoo: Can I just throw the thought experiment out there? And, Richard, to just reinforce this point about it having to do with race is Richard and I, we could be said to hold views that may not be consistent with the majority of the people in our ethnic groups.

 

>> Speaker 1: Or even the majority of people on this podcast.

>> John Yoo: Or in your average McDonald's, which is my touchstone of measurement for social questions. But like Richard, has anyone ever really given you heart, have you ever really been attacked for being antisemitic for your views? I don't recall really ever being considered anti Asian cuz I had conservative views.

But you hear that all the time with black conservatives, I can't actually think of this kind of race traitor claim being made by other ethnic groups against conservatives in their, in their midst. In fact, I often think amongst, I can't speak for Jews, I like to, but I really, I reserve that to Richard because he's still the expert.

But with Asians, I find that the Asians don't mind a diversity of views and political allegiances. But, gosh, I see it all the time with Justice Thomas, so I really do think it's about race.

>> Richard Epstein: Look, I mean, John, it's an interesting question. There's only one occasion on which the sort of the Jewish question came up.

This is about 13 years ago, and I was brought on PBS to give a discourse on inequality. The report is a man named Salman, I believe. And when he approached me first, he says, we can't find any respectable economist who's willing to defend the current level of inequality.

So we're gonna have to rely on you to do that, with an obvious look of dissent, and we had a battle royal on this thing in which I thin I came out at least even. Usually when we're on a podcast like this, four people will venture their views on it, but on this basically public television, it was conversation.

I think there were over a thousand comments that were sent to me personally and more than 1000 comments that were sent to the network. 90% of them said, thank God there's an intelligent conservative, don't have to agree with that.

>> John Yoo: I wasn't on that show.

>> Richard Epstein: I know that you're not the only one, John, but there were.

 

>> John Yoo: You're a libertarian, you're a libertarian.

>> Richard Epstein: There were at least ten or so people who said, you're a disgrace to your race, that is, being Jewish by virtue of the fact of taking conservatives.

>> John Yoo: So that's 1%, that's 1%.

>> Richard Epstein: And that's what I said, that's the only time it happened.

It was a very extreme kind of event, it had extremely high rates of publicity. But in most kinds of situations, thank heaven, you could be excoriated for your views, but not for your particular. Religion. So I agree with you for the most part. I've had a pretty easy go of it.

And in fact, in the one extreme case, if you've got 90% of the people with you and 2% of the people against you in that fashion, it's actually a victory because they stand out like sore thumbs when everybody else is taking a different kind of position. So, I mean, I hope our fairy tale existence as academics has not happened.

But I'm not worried about the racial issue in this case or the religious issue. I think it's the general woke intolerance, which is the thing that keeps me up at night. And thus far, it has not yet touched me in any tangible way.

>> Troy Sinek: So let me move you guys over to the piece of official business at the court that is getting the most attention right now, and that is the controversy over this abortion drug.

Mifeprestone, this is all obviously part of the fallout from the Dobbs decision. So this drug is an abortifacient, a drug that can be taken to induce abortions. And pro life advocates out of Texas filed suit claiming that the FDA's approval of this, which happened back in 2000, was arbitrary and capricious, that there were a bunch of relevant factors that the FDA didn't take into consideration.

Federal judge in Texas rules in their favor. But nearly simultaneously, there was another conflicting ruling in Washington State in a suit that was actually cutting the other way, saying the FDA was putting too many restrictions on this drug. That suit also succeeded. So now you have this split and the Supreme Court has had to step in and so far allow the drug to stay on the market.

As this works through the courts, though, as we record this, that order is only good through tomorrow through Friday, and we'll see what happens there. But John, this presents, particularly in the media, as an abortion case, but it's just as much a case about the administrative state insofar is it's about how much deference the FDA is owed in making decisions like this.

In your judgment, how strong is the case against the FDA coming out of Texas?

>> John Yoo: Yes, Troy, that's exactly right. Finally, finally you reach behind the headlines to see what's really going on. Yeah, this is not really about abortion. I mean, the subject matter is about abortion, but the law.

If you read the cases in the district court circuit, you rarely see Dobbs or Roe mentioned because the legal standards and the legal questions are not about abortion. They're about, as you say, Troy, the amount of review, the level of scrutiny that courts should place on the decisions of the administrative state.

And this case shows actually all the ways that people run into roadblocks trying to challenge the administrative state. Because I think the FDA has played a little bit fast and loose here. And if this was considered de novo, for example, by de novo, I mean, suppose this was something.

No deference to the agencies, no assumptions. They're right. No benefit of doubt to the agency. If you were just looking at this afreshen, I think you'd want the FDA to do it over again. But I think that's the question that you raised, Troy, is how much deference should the courts give to the FDA?

I think, and I could be wrong about this, but I think what you see at the lower court, certainly the trial court, but also the Court of Appeals for the Fifth Circuit in Texas, they're probably the most conservative appeals court. And so it was no mistake that this case was brought in Texas.

I think you're seeing here a lack of deference to the FDA, because my thinking is that you have a lot of doubts in our public health authorities. I think this is a supreme court. If you remember, we talked about this on the podcast that rejected the Biden administration's COVID vaccine mandate, rejected the Biden administration's public health claim that it could suspend all evictions in the country.

You may well see it also lose shortly on its claim that the public health emergency justifies wiping out all student debt in the country. So already you're seeing that the lower courts are getting the message from the Supreme Court that the justices are a little skeptical now about the decisions made by our health authorities in Washington, DC.

Now, I don't want tona bore people with the nitty gritty, but there's two different decisions here, actually, that are under review by the FDA. One was whether to approve the drug at all. And if you look at what the FDA did, they kind of did this under an accelerated part of the FDA approval process, which is for drugs that treat illnesses.

And so the trial judge here sensibly said, since when is being pregnant an illness? Now, the problem might be that the plaintiffs didn't challenge that in a timely way. They might have waited too long. But then there's a second decision, which I think is on firmer. I mean, where the question, I'm sorry, the doubt is much stronger.

And I think the FDA may well lose, which was in 2016, right at the end of the Obama administration, the FDA lifted a number of restrictions on the prescription of mifepristone. So, for example, before 2016, you needed three doctors visits. Under the 2016 rules, the FDA said you don't have to visit a doctor at all.

You can have this prescribed to you by telehealth. May not even need to be a full md to do it. Those have been blocked by the Fifth Circuit. I think those might. Well, that holding may well survive review at the Supreme Court. I think the Supreme Court's gonna have to hear it either way.

Sorry for going on long, but I think the Supreme Court's gonna have to either way, because you've got this court out in Washington State and you have now this court in Texas that are really issuing decisions directly at odds with each other. And that's what the Supreme Court's job is, to make sure that federal law is uniform throughout the country.

So if both of these lower courts keep going, the Supreme Court will either take it now or they'll end up taking this case in a few months. But they will eventually take the case.

>> Richard Epstein: Take the case. They surely will. It's too important not to. I think the political element of this particular situation about this drug is really quite simple.

It has been something which has been a staple on the market for 20 years. The Supreme Court sort of understood that when it went through Dobbs that the political response was a firestorm which they probably did not expect to have happen. I think that they are actually on a technical issue that doesn't involve any constitutional principle, a little bit loathe to put themselves into the crosshairs again.

So with that background, I think that there's actually a presumption which this decision won't survive. Now, there are two parts to it, as John said, and he's absolutely right. And the first one is the question of, was the approval correct 20 odd years ago? Now, it seems to me that when you have approvals like this, the rule ought to be something as follows, that anybody can challenge this approval.

I'm not really concerned about standing, but they have to do so within a year after the thing gets on the market. After that, essentially the decision becomes final, because otherwise there's just simply too much uncertainty. And so the way I would want to say it is, I don't think the question is whether or not they were correct when they made that decision on health and safety.

I think what you really want the plaintiffs to do is to say, here's the evidence since that particular time. And when you look at the number of adverse events that are attributable to the use of the drug, either with or without the medical Medical warnings or doctors inspections and so forth, they're just simply too high, and this thing ought to be removed.

Now, that's a very elaborate sort of procedure that has to go back through the FDA, subject to judicial review. My guess is that you probably can't make that out, but I'm not gonna be dogmatic about it, because there are many physicians who reported cases of death or some serious illnesses that have followed the use of these kinds of drugs that might trigger that.

And there's a kind of, kind of peculiar reversal of roles in this case. Usually its liberals who are essentially, they don't like anything to interfere with the FDA. Now they wanna basically make sure it's gonna be harder to get them to take this thing off the market. I think, in effect, as I understand the law, the presumption would be that you could not meet the standard that you need in order to get something off the market.

Now, the second piece is a little bit different from that, it's the question of restoring the notion that you get physicians advisors and so forth. At that particular point the review is not something which, if it turned out you think the claim was correct, which would force you to take Mifstone off the market.

It would be something which says you have to restore the regulations as they existed in 2016 and go through the kinds of procedures that you did for the first 15 years that the drug was on the market. And I think it's much harder to attack that if, in fact, one could say that there's a credible case only seven years ago that the Obama administration was clearly ultra vires in what it said.

And I don't think that requires you to go show something about medical effectiveness of the drug. I think the question you would want to ask is, were they within their powers to do this thing? And I have no idea what the ultimate correct answer is. In general, I think it's likely that the regulation will withhold.

Now, John says the Supreme Court has certainly shown its deference. It's shown its impatience with deference, and I think he's right about that. But this is a case which falls within the core competence of the FDA about health and safety, about warnings and so forth. When you're trying to basically do a decision where you say that the CDC can end all eviction, or where the Obama administration can mandate all sorts of vaccine mandates for the workplace and so forth.

The clear sense that you have is these are agencies which has simply lost any sense of proportion about what it is they're entitled to deal with and whatnot. So I think the provisions that we've seen thus far are all provisions against somebody going beyond its core competence and trying to do advanced extensions in regulatory power into new areas.

That's certainly the message that's gonna take place with respect to the major questions doctrine in the West Virginia case. And we're sure we're gonna see some challenges exactly like that in connection with these various orders to ban fossil fuel automobiles or gasoline automobiles through an executive order, all which is sort of good.

But in this case, when you're talking about what the FDA did, approving a drug and changing a warning, there is no jurisdictional element to that, which is the kind of thing that is likely to attract the Supreme Court eyre. And even if I had complete power over this, which for the moment I do, but only on this show, I would be very much more reluctant to go after the FDA within core competencies than I would when they start to have these jurisdictional expansion.

And I think the real objections that the Supreme Court had is both with executive orders and with administrative stuff, both of them coming there. A Democratic administration treats a statute as an excuse for doing whatever it wants and that the separation of powers issues are extremely powerful, the due process issues are extremely powerful.

And in this case, I don't think either of those things are there. So I think it's likely that what will happen is the judge will be overturned by the Supreme Court. And I think at least as I see this situation, that seems based upon what limited information I have to be the more plausible alternative.

 

>> Troy Sinek: Let me ask you guys one final question on this, about the politics post-Dobbs, and this is a jump ball. Whichever one of you is more interested in this.

>> Richard Epstein: John is more interested.

>> Troy Sinek: Well, there are now an abundance of pieces coming out talking about how Republicans in particular are really struggling with this issue, that they're having a difficult time navigating a post-Dobbs world.

Because it turns out that without Roe on the books, a lot of the maximalist positions Republicans are taking on abortion aren't that popular with the public, at least in a lot of the states. And then there are all of these derivative controversies about access to the abortion drugs, about rape, incest, life of the mother, exceptions, about the permissible timeframe for abortions.

And you can understand why this is inconvenient for politicians. But couldn't you also make the case that its sort of proving the theory of the Dobbs decision, by which I mean that because this issue is now deconstitutionalized, if I can use that term, and the ball is back in the court of the states.

You have this messy, contentious process as the states try to find an equilibrium on this. But that's sort of the point. That's what it means to subject an issue to democratic scrutiny as opposed to the way the issue was sort of calcified before under Roe, or is that too pollyannaish?

I was going to say panglossian, but I don't want to lose the whole audience.

>> John Yoo: No, this is why politicians like the court deciding it in the first place, because then they wouldn't have to take stands on this kind of messy, unpredictable, heated issue. They loved having the courts decide this stuff.

So, yeah, that's what we elect them to office for, is to represent the public and help deliberate and set a policy. And that that policy can be different all across the country. That's the way we decide everything else. Now, I would say the consequences actually, I think, are that the Republican parties even though they're the ones who supported the overrule of Roe and sending it back to the states.

Interestingly, they're the ones who are, seem utterly unprepared for the clear political consequences, which should have been clear at least in May when the Dobbs draft, you can think, you can see where I'm thinking where the Dobbs draft was headed, right? You can, you knew about a year ago that by the end of June or early July.

 

>> Richard Epstein: I disagree.

>> John Yoo: So I think Republicans in part have made a mistake because they weren't prepared. And then when they sort of got engaged, I think they've been trying to press a line that doesn't represent where a majority of the people are right now. I don't think a majority of the people are in favor of complete bans on abortion, and I don't think a majority of Americans are in favor of bans on abortion that take place after eight or ten or twelve weeks.

It seems to me that Republicans would be wise to maybe have a framework that's a little bit tighter than the Roe Casey framework had been, but that they're overreaching by trying to get respond to Dobbs by trying to put in place bans that are too strict.

>> Richard Epstein: Look, I mean, I disagree with John on many points, but let's start with the first one.

One was it clear that essentially Roe was a political godsend to the Republicans and that, to my mind, was probably around 1975 and they actually, the explanation is pretty clear. The Republican Party has two issues that they have to face. One of them is the moral issues associated with privacy, sex, reproduction and abortion and so forth.

And the other is the issues of financial. Liberties, small government, economic liberties and the like. So long as Roe is a constitutional issue, it's off the political table. And all of these people will tend to vote more conservative than otherwise because the only things they worry about are the economics of these questions.

Once Roe becomes a political issue and it's all gone, every person who's on the right is going to have to face the question of whether you're going to deal with the liberal social instincts or with the conservative economic one. You look at the political demographic of abortion, and they're actually very interesting because the country is, roughly speaking, divided into thirds.

There is a third of the population which believes that abortion is a, illegal and b, immoral. There's a third of the population that believes that abortion should be legal and is immoral. And then there are a bunch of people who think that the whole thing should go. So you have some people in the middle.

There are about a third of the population in this country thinks that abortion should be legal, but the abortion is not a moral thing to do. And then what they do do is they take the position, it's a personal decision of the woman. People have asked me, well, why do they do that?

I said, if I had the right to abort somebody else's fetus, the world would be in complete turmoil. But what's distinctive about abortion is that every woman, and only women have it with respect to only one set of fetuses, their own. So it's not, though, it creates social insecurity in the way you get when there are mass murders on streets, where people are worried about violence when they leave their homes and so forth.

So the politics, the intellectual stuff is very difficult. Now, if you're a Republican and you're trying to figure out what line to take, it's very difficult to figure out what you're supposed to say on this issue, given the politics of it. And it's also another very difficult element for Republicans, is the only tenable line intellectually is conception, which is the only line that politically doesn't seem to work.

Now why is that? Because everything else is along a continuum, and you can see the elements of a human form much earlier than 15 weeks. It's sort of unmistakable. And there's only one event that basically transforms, it's getting pregnant. And then you ask a woman, what does she think about what's inside of her, and if she wants to keep the baby, it could be two days old.

She says, I'm pregnant, I want my baby to be healthy. So the ontology of what a baby is, depends heavily on whether we want to keep it, at which point it's a person from conception, or whether we want to remove it, at which point it's like a tumor or growth.

And all of these ambiguities basically hurt the Republican, the Democrats basically saying, it's her body, it's her choice, all the rest of that. They have no such ambiguities. They don't split their political base. This thing was essentially a time bomb waiting to happen. My view is, if you recall on this, was as follows, Monday, Wednesdays and Fridays.

I think that the terrible nature of the roe opinion, and it's truly dreadful, means that you have to overturn it. And then on Tuesday, Thursdays and Saturdays saying, we've gone a bit too long and to try to turn it now, it's not gonna be able to go back home again to what things were like in 1972.

It's never going to happen, and I still feel that kind of ambiguity. I have no doubt on the moral side that I'm with the groups who thinks that abortions are immoral except in certain limited circumstances. Many of the problems that you get in this case is people who think that life begins with conception.

The only exception they're prepared to make, if any, would be to protect the life of the mother. They're not prepared to deal with rape or with incense. They're not prepared to deal with defective children, were known to have terminal conditions like Tay-Sachs disease and so forth. So the debate takes place on so many different levels.

There's a federal and a state component in this. There's an interstate component in this. And so what's happened is it's going to take another decade to work through these kinds of questions to figure out which way it goes. But there is no doubt in my mind that even if the Republicans that had an optimal political strategy or intellectual strategy, the only thing that they can do after Dobbs was damage control.

There was no way they were gonna come out of the political debates stronger than they were, than when Roe was in place.

>> Troy Sinek: We are just about out of time, and I just want to sneak one last question in here, just as a matter of a point of personal privilege, just a topic that I wanted to hear you guys talk about since it came into the news.

I have a modest obsession with the ongoing fight between Ron DeSantis and Disney in Florida. Most people were obsessed with the politics of it, which is, of course, that Disney came out in opposition to the bill DeSantis was backing to limit the classroom discussion of sexuality and gender identity in Florida, which the media quickly caricatured as the Don't Say Gay bill.

And DeSantis, in retribution for this, ended up changing the structure of what used to be called the Reedy Creek Improvement District, which is the municipal organization that essentially allows Disney to sort of run its own city government, essentially in the area that they own outside of Orlando. They basically cover all their own infrastructure and utilities, they self-tax and everything else.

And this is the part I'm obsessed with, because its kind of remarkable. I was there about six months ago, and it is a stark reminder that Walt Disney was sort of a benign fascist. He was kind of the American Lee Kuan Yew. And this is a very controlled environment, but one that is very pleasant and operates with clockwork efficiency.

Anyway, DeSantis got it restructured into a new board where he gets to nominate the members. Previously, Disney had de facto run it, and then at the 11th hour, the old Disney controlled board actually ceded most of the important power back to the Disney corporation. And they did so, this was the detail that the Internet loved, with the provision that this arrangement would hold.

Read you the quote, until 21 years after the death of the last survivor of the descendants of King Charles III living at the time of this gift. So, yes, there is a clear legal principle at work here, right, Richard? But most of the Internet did not know this.

So this feels like something that is tailor made for one of your classes. Richard. There is a big argument now over whether DeSantis just got outplayed by Disney here or whether the state actually has the power to just come in and invalidate this. What is your read on this?

 

>> Richard Epstein: There are two issues. One of them is, can the old board dump the power back to somebody else when they knew the new board is coming in? This has nothing to do with the rule against perpetuities. But what it does have to do with is the question of whether there's something like a fraudulent conveyance to seed power, which you already know is taken by somebody else.

My view is on that issue. DeSantis is likely to win regardless of what you think of the power, the politics. I think the state essentially, if it has the power to regulate the private party, cannot duck that particular thing by ceding its powers back to the very object of its effect.

The rule against perpetuity is something else, and this is a rule which is very obscure, and it's supposed to tell when a contingent remain divests an interest and becomes protected. This is not a rule against perpetuities question at all cuz there's no future uncertain interest. But the rule against perpetuities, when it does apply, says that you have a life in being plus 21 years for an interest event.

Now, who's the life and being? Well, what happens is, normally what you do is you just make a will and you say mom and dad and so forth. And it turns out when they die, 21 years after that, most other people are going to be at risk. But what you do is you now contrive a new ruler.

So you say the last living descendant of King Charles, now alive, to this gift. They're all, technically speaking, life and business in being under the rule. Probably the youngest of these people is somewhere around three years of age. The life expectancy. If you have 20 people in this class, you can't go.

Much larger than that is that at least one of them are going to live for another 80 years, which means that you then tack 21 years after that. This is a device, essentially, to negate the rule against perpetuity in the cases where it applies. In this situation, it's just a comical add on to a situation, because the board is claiming that its powers vest tomorrow.

So long as they vest tomorrow, the rule against perpetuities does not apply because it only applies to what they call remote vesting, that is, vesting at some time in the future. The reason we call it a perpetuity, it's some issue which, when it's vested, supposed to last forever.

So this is designed to prevent the dead hand from controlling the future. The dead hand today, that is, the Disney current board is trying to control the current situation. I think, in fact, DeSantis will win on the legal issues, but it's nice to see that every time the rule against perpetuity comes up, it gets mangled.

For those of you who are movie aficionados, do you remember the movie in which the rule against perpetuities, garbled as it was, led to murder? Do either of you remember this?

>> Troy Sinek: I have no idea.

>> John Yoo: Body Heat, wasn't it?

>> Richard Epstein: Yes, Body Heat. My word look at that man.

What? It comes to the rescue, John. You don't know the first thing about property law, and now you establish yourself to be an eminent scholar on the entire position. My one piece of advice about the rule perpetuity is to. Against. You can't even say the word against perpetuity.

 

>> John Yoo: If you take the bar exam and you come across a question that has the rule against perpetuities in it, just skip the question and go on, because you'll waste so much time trying to answer it, you won't finish the section. Just skip it and move on.

>> Richard Epstein: I am now.

When I started teaching in 1968, the first course I taught was a course in future interests in which the rule against perpetuities was about half the class. I took those raw recruits from the University of Southern California when I was all of 25 years of age, imbued with my English knowledge, and I got them to understand.

Now when I teach it, I don't spend half a semester on it. You can't. You spend 2 hours. Essentially what you do is you take the simple paradigmatic strategy, which is to call breed and die. And if it turns out that if you breed and then die, can the issues survive?

It's only because some previous life was there, and it turns out you could actually teach it much more quickly. On the bar, the California Supreme Court at one point said that if you don't understand the rule against perpetuities, nobody else does either. It's not a legal form of legal malpractice for you to mess it up.

I think it was a case called Lucas. I'll mention another.

>> Troy Sinek: Can I just mention another important, very apropos, important rule I remember from property trust in estates, which applies with particular suitability for Professor Epstein, is the problem of the fertile octogenarian.

>> Richard Epstein: That's part of the rule against perpetuities.

 

>> Troy Sinek: Exactly.

>> John Yoo: And we have an octogenarian on the podcast.

>> Richard Epstein: Yes, we do, but with an unfrozen kidney. Yes, all of that stuff. But that was a case called Gian Audley, and it's the same problem as the unborn widow. For those of you who wish to do this, we could have a separate podcast on this at some point, put you all to sleep.

Solo on that. The man who basically was most responsible for debunking the rule against perpetuities in the mid 20th century is a man named W. Barton Leach. He was the guy who invented all of these crazy names, the fertile octogenarian and the unborn widow and so forth. It was a remarkable tour de force and what he did.

But I think it's, the hour is late. Our audience must be duly fatigued from John's erudition and Troy's great question. So I will refrain from ruining your afternoon by explaining each of these endless variations.

>> Troy Sinek: You never know what's going to happen in the last ten minutes of the show.

It always goes a little sideways. All right, fellas, that is all the time we have for today. Thanks to you both, as always, to our producers, Scott Immergut, and to all of our wonderful listeners. Remember to do us a favor and rank the show wherever you get your podcasts.

We'll be back with you soon. Until then, the faculty lounge is officially closed. All right, yeah.

>> Speaker 6: This podcast is a production of the Hoover Institution, where we advance ideas that define a free society and improve the human condition. For more information about our work or to listen to more of our podcasts or watch our videos, please visit hoover dot org.