Question Time!

>> Richard Epstein: All right.

>> Troy Senik: Welcome back to the Law Talk podcast from the Hoover Institution, coming to you, as we always do, from the faculty lounge of the Epstein and Yoo School of Law, although about this time of year, it becomes a spirit Halloween store. I'm your host, Troy Senik, former White House speechwriter, co founder of Kite & Key Medium, and longtime roadie for Peter Cetera.

And I am joined, as always, by the Edison and Tesla of the conservative legal movement. They are Richard Epstein, the Peter and Kirsten Bedford senior fellow at the Hoover Institution, 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 mentioned on our last episode that traditionally, on the August episode of Law Talk, we take listener questions. We were not able to do that this year because August was so damn newsy. But thankfully, we had tons of listeners submit questions so that we could make it up to them here in September.

I've got a lot of them, so I want to get straight to it. And we will start with some of the more topical ones and then do some of the more thematic questions for you later in the show. But two current events, questions that got submitted over and over again, I will start with those, and I apologize for not giving attributions, but we got endless variations on both of these.

So, first one, Richard, I'll let you start with this. We got probably a dozen variations on if Donald Trump is convicted and sentenced to jail time in any of the cases facing him and nevertheless manages to win the 2024 presidential election, what happens? Is it a get out of jail free card, or are there plausible grounds on which an active criminal sentence could be disqualifying?

 

>> Richard Epstein: It's a very interesting question. I think the answer is, you first have to take it two ways. You have to worry about the state situations, then you have to worry about the federal convictions. One of the things that's notorious about the Georgia situation is under Georgia law, the pardon laws are highly restrictive, and if you're trying to go that route, it would take months, maybe even years for this thing to take place.

I don't think that that's the relevant question. I think the relevant question in any case of a state conviction is preemption. There's a federal doctrine which says that the president must take care to see that the laws are faithfully executed. He cannot do that sitting in a Georgia prison.

Since the federal law is going to be supreme over the state law, it seems to me that what they have to do is to make an accommodation. That accommodation would require them to let him out of prison, let him do his federal term, and then afterwards, if they're so inclined, they can start to put him back into the position again.

Comes to the federal side, I'm not sure exactly how it differs, except on the obvious point. There is no preemption issue vis a vis this. And so the question would then be, is the federal conviction sufficient for disqualification for the presidency? And I think unless you want to go into the very thorny insurrection issue, which is, interestingly enough, not involved in any of the prosecutions that we actually have, I think in the end, the same kind of analysis is going to apply.

Jack Smith wants to throw him in the kalaboos. He cannot meet foreign diplomats in jail. He has to discharge that office. And so I would think, again, if you look for the qualifications of the office, they are not associated with prison terms. You look for disqualifications. You'd have to have some kind of an impeachment purpose for a high crime and misdemeanor.

So my guess is, again, he would be allowed out of jail, would be able to serve, and then afterwards, the term would be in rope posed once he's out of office. This is kind of an odd commentary on America. Every time they impeach him for something else, every time they attack him for something else, his popularity rises.

And that's because of the very depolarization that we have inside the American political system. And if people believe that this is a complete political vendetta, and they're going to react to it as you would react to any other vendetta, there's a terrible thing being done to an innocent man.

So I think, in effect, it's a great question, but I think that he can serve. This is the same kind of accommodation just to endure it. If you wanted to try Bill Clinton, if you remember, for various kinds of staples the argument that they allowed was to take their positions, but to postpone the actual trial, it was a disastrous mistake.

What they should always do is to say, any criminal proceedings of a president essentially has to be postponed. You could collect evidence, but you can't depose him and you can't punish him until the actual term of office is over. That would be the position that I would take on this issue.

 

>> Troy Senik: John, is your view on the potential consequences of Trump actually being behind bars similar to Richard, or you differ on this?

>> John Yoo: Probably, the same view. I think Richard's placing a lot of confidence in the federal and state governments to reach some kind of accommodation where the, excuse me, say, the state of Georgia allows President Trump to be president.

Although you would think that, I don't know, you would think maybe I hadn't thought this through, that you would trigger, not impeachment, but you might trigger, right, the 26th Amendment because the president, if he's sitting in Georgia jail, suppose there's no accommodation made, then he's not really able to execute the job of the office, right?

So you might have the cap. We all know the procedure because I remember we talked on the podcast about it back when Trump got COVID. Remember the 25th Amendment, right, the vice president and the majority of the cabinet vote and they make the vice president the acting president because Trump would be unable to perform the job.

But interesting thing is, usually, we think of this as a medical problem, but the 25th amendment says that you submit a written declaration that, quote, he is unable to discharge the powers and duties of his office. So, I wonder whether sitting in state prison might be grounds for the 25th Amendment.

I don't remember anyone ever thinking about this or talking about this before.

>> Troy Senik: But this would be a weird scenario, right? Because there would be no cabinet because he wouldn't have been sworn in yet. And then he could be in a position where he was one of nominating cabinet members knowing that this was the operative question facing them.

 

>> John Yoo: Yeah, or this is the interesting thing to even take a little further. What if the Biden cabinet in 2025 stays in office, right, they stay in office until the president removes them? Maybe that.

>> Troy Senik: So it all comes down to Marcia Fudge is what you're telling me, the HUD secretary?

 

>> John Yoo: I was gonna say, whoever that is.

>> Troy Senik: Sorry, you're making my point for me.

>> John Yoo: The ill named ice cream saleswoman at the cabinet officers. So that's one thing. The other thing is, on the other hand, how would Georgia actually implement its sentence? Are they gonna actually go and physically grab Trump?

I mean, the Georgia troopers gonna leave the jurisdiction of Georgia and try to overcome the Secret Service and the United States military. I can't see a president actually going to serve the sentence unless they willingly wanted to. But I could also see people saying, well, maybe that's a ground for impeachment if the president doesn't obey a valid legal writ, even if it's from a state.

 

>> Richard Epstein: Well, I mean, the question that John puts asked a very nice thing. What does it mean to be unable to discharge the powers and duties of office? He's claiming, I'm perfectly able to do it, and I remain so. And this is like trying to capture me and put me in a dark cell somewhere.

This is a ground for release. This is not a ground for essentially removal from office. So I think the simplest solution that I proposed at the beginning has a lot more sense than the very clever, too clever by half observations that John makes. So I don't think the 25th Amendment is gonna come into play unless there are independent grounds for it.

And given the way that Trump is so bizarre in his behavior of late, it may well be that he will be unfit for office whether or not he wins. But that's an independent ground and has nothing to do with Alvin Bragg and nothing to do with Fani Willis.

It has to do with his own mental competence. But I think, in effect, the federal rule has to dominate this and cannot tolerate the uncertainty and the antics that will take place if somebody tries to invoke the 25th Amendment either before he's sworn into office or afterwards.

>> Troy Senik: The other question that we got from multiple people, we alluded to it in the last episode, but didn't discuss it outright.

And, Richard, you alluded to it earlier in your first response today. John, I'll give you first dibs on this one, but a lot of people asking for both of your opinions about this argument now being tried out in court, that Donald Trump can be kept off the ballot next year, because under the 14th Amendment, people who have engaged in insurrection or rebellion are barred from holding federal office.

And I know there's some dispute over what offices this is even referring to now, but what's your reaction to that idea, which came out of a law review article.

>> John Yoo: Yes, comes from two conservative originalists, Will Baude and Mike Paulson. I've even written articles with Mike Paulson. I think they're excellent, distinguished scholars.

I disagree with them 50%. So it's just three points. One is, I think they're clearly right, that this provision, it's section three of the 14th Amendment, is still in the Constitution, and it's not limited to the Civil War and what to do about former confederates. Second point is, I don't think that this provision really applies to the presidency.

It talks about not being able to be an officer of the United States, not being able to be a senator or representative or, and here's interesting, an elector for president and vice president. And so usually the Constitution says president and then distinguishes that from, excuse me, officer, which is basically everyone else in the executive branch as an officer and employee.

But the president and vice president are usually discussed separately. And in fact, you can see that because the provision says you can't be an elector for president and vice president, but it doesn't say you can't be president or vice president. So there's a good case, that's my second point.

There's a good case for this not applying to the presidency. Third point, and this is why I disagree with Baude and Paulson, 50%, is, how do you enforce this provision? Their claim is basically that everyone can tell Trump is an insurrectionist. And so the presumption is that every officer, federal and state, should give this 14th Amendment provision effect.

So the lowliest, how do you say lowliest, lowliest county clerk could take all the ballots, it seems to me, under their theory, and scratch Donald Trump's name off before he or she hands them out to the voters. I don't think that can be right. I gotta think that it's gotta be an issue that's settled by the federal government, whether Trump is an insurrectionist.

And I'll just note when we talked about this on the podcast, too, that the Senate acquitted Trump of incitement to insurrection, which is what the House charged him in in the second impeachment. And Jack Smith, the independent counsel, could have, but has not charged Trump with insurrection or sedition for the events of January 6.

Congress, we have no finding by any branch of the federal government that Trump actually committed insurrection, or that January 6 itself was an insurrection. So I think until you see that, you can't even really get this show on the road, because if you allow state officers to do it first, you're going to have retaliation.

I could see a red state county clerk saying, Biden's the insurrectionist. He's overthrowing the government by not enforcing the law, by letting people of the southern border, by changing our country. You can imagine what will happen if you start letting the lowliest state officials to decide people are insurrectionists and keep them off the ballot.

I think it really has to be something decided by the federal government.

>> Troy Senik: Richard.

>> Richard Epstein: John is amazingly sensible. But let me see if I could put the argument in a slightly different form. Let's start with the beginning. It says, and in fact, whenever you have all of this stuff about the various people who are doing this, the key thing that we have to remember is each of the people they talk about, the senators, the representatives, the electors, the president, the vice president, are all people who are appointed by the states.

The president and the vice president are elected by a very complicated system through the Electoral College. I think the reason why they left the president and the vice president off the list is, given the fact that these are national selections, you don't have the danger of recalcitrant southern states basically electing people who were in rebellion.

They're going to be a majority of northern states. The kinda contingency you're worried about is simply not going to happen. So their omission from this thing makes sense, because what they're after is unilateral actions by individual states that they can accomplish. No individual state can choose the president or the vice president.

That's why they're left all the rest. So there's a structural reason. The second point, which has been made by many people, Michael Mukasey, is that when you're talking about an officer of the United States, you're only talking about appointed persons. You're not talking about elected person. And Donald Trump would not be an appointed person, he would be an elected person, so that's the second ground to exclude him.

The third thing is, what's the mechanism? If you look at the last section of this provision, which John didn't read, but Congress may, by a vote of two thirds of each house, remove such disability. It gives you a method by which you can, in fact, cure the situation.

This method has nothing to do with every low level official in state or federal government deciding on his own to make a determination that an insurrection has or has not taken place. And remember, the solution would be, if there was an insurrection, these people, they're claiming, Baude and Paulson are claiming they could remove him, but there's no proof of demonstration of that.

And is it to every individual official in the United States to make their own independent situation? So in some states, he's an insurrectionist, in other states, he's not an insurrectionist. This is just an utterly untenable, bizarre view. If you look at the actual provision on the thing, if you confine it to all the people on the list, what happens is somebody comes and the Congress then can remove the disability.

What they're saying, in effect, is that provision has no effect to the president. He's not on the list, and then everybody can go after him. This is just absolutely nuts. And then there's the question of what counts as an insurrection. If you look at the phrase, it comes engaged in an insurrection or rebellion against the United States, or given aid and comfort to the enemies thereof, well, it means you're in rebellion, you're in an insurrection.

Or your treason is, what Donald Trump did was he yelled at a bunch of people inside the Congress about what should or should not be counted on a ballot. I think he was wrong on the legal issues. But to call that an insurrection is crazy. To call everybody who's going to the Capitol building and starting to talk insurrectionist, when some people went into the building to take selfies and others did not.

When you think of an insurrection, you think of an armed uprising by people who were capable of taking over the government by main force and trying to do so. That was not what happened in this case. So what's happened is we have a bunch of commentators who don't like Donald Trump.

And what they do is they butcher the English language. This is not a rebellion, this is not an insurrection. It's a bunch of silly criminal trespasses which should be punished. It's not even clear, if you look at the record, that Donald Trump was responsible for the quote unquote, insurrection.

He says you have to go there to protest. And so, on the one hand, he's an insurrectionist, and on the other hand, he's protected by First Amendment political speech ground for everything he said on the Capitol on that fatal day of January 6. So I think this is.

I mean, I have an immense respect for both Paulsen and Baude. I think their position, absolutely nuts with respect to what's going on in this case. And I think that it ought to be summarily rejected. And John is clearly right. If it's going to have to be decided, it has to be decided in a coherent fashion for a national election.

And that means that this unfortunate thing will have to end up in the Supreme Court or the Congress. As far as I can tell, this provision is not even justiciable, given the way in which the remedy is supposed to be imposed, which creates additional difficulty. So the sooner this thing is put, the best, the better off we're all going to be.

I regard this as an open invitation for a constitutional crisis. And I think there's not a single shred of evidence in the particular clause or the destruction of the entire set of institutions that support this insurrectionist claim.

>> Troy Senik: Okay, this question comes from a listener in Virginia named Patricia.

Quote, and I'll read you the whole thing. I'm confused by the present state of abortion law. In the of the Dobbs case, many Republicans have talked about national bans on abortion, at least after a certain point in the pregnancy. Meanwhile, many Democrats have talked about enshrining the standards of Roe v Wade into federal law.

As I understand it, the Dobbs case returned the issue to the states. In that case, isn't it likely that either one of those policies would just get struck down by the Supreme Court? John, what do you do with that? It's interesting, and I think, the more I thought about it, I do see some space for the people arguing for federal national action, although I don't think that's the proper outcome.

Right now, the law is that's up to each state, and I think that's not unusual. That's the way the Constitution handles most issues. The general idea is the states have the police power to regulate everything and everyone on their territory, unless it's something that's given to the federal government.

Abortion is just one of many life and death decisions that are up to the states. Euthanasia is up to the states. The death penalty is up to the states. Most healthcare, medical practice, legal practice decisions, criminal law are all up to the states. So it's not surprised to me that abortion also should be decided by the voters, state by state.

And you're seeing that work its way out. And people, I don't think, should be disturbed that there's this possibility of different policies in different parts of the country. Now I can see the argument, my friends. I think this is mostly in the academic world put forward by Hadley Arkes, emeritus professor at Amherst.

His view is that the 14th Amendment says you can't take life, liberty, or property without due process. And it also, Richard was just talking about this. The 14th Amendment has its own enforcement provision in section five, which gives Congress the power to enforce the terms of the 14th Amendment.

So people like Headley say, why can't Congress pass a national law defining when life starts for purposes of the Constitution, just like the Congress can pass, as it has tried to pass laws defining what religious freedom is and so on. So I can see that argument. I don't think that's consistent with the founders' understanding, or the framers of the 14th Amendment would have thought that you could use Section 5 of the 14th Amendment to pass a nationwide abortion bans.

But that's the argument, I think, in favor. I think people like Mike Pence, for example, would probably agree with that argument as well. I think when you look at what the founders understood to be within federal versus state power, they still would have thought that states would probably primary control of abortion.

 

>> Richard Epstein: I don't think that that's quite right. What I think is that the question states the problem incorrectly. What the Dobbs decision said is that there's no constitutional protection for this and it returns to the political process. It didn't say that. It only returns it to the political process at the state level.

If the year was still 1968, before this had happened and you had a public debate, as we did, I can still recall Hubert Humphrey was asked the question about what he thought about a bush, and he sort of looked into the camera and says, why are you asking me this question?

I'm running for the president of the United States, I'm not running for any state office. And so this is something which has no federal component associated with it. And indeed, before Roe v Wade was decided, the basic kind of argument that you've heard in academic circles, John's too young to remember this, I'm happy to say, is, are these lunatics, why are they going into federal court?

I remember speaking to one of my colleagues, who actually vetted the Roe forces in that particular case, and he said people were side splitting. They just couldn't believe that anyone thought that such a grotesque argument would ever get anywhere. To which I think my cynical answer then and now is, if the Supreme Court is taking it, it's a serious question.

The fact that the theories may seem bizarre is gonna be decide the point. So there's no question if we were sort of going back to the 1968 situation, what John said and what the question would imply, that is, the state issue would be right. But since 1973, there's been massive regulation associated with abortion on the Hyde Amendment.

Can the federal government fund an abortion if it funds essentially other kinds of treatments? All of those questions that started to get raised. It may well be that the 14th Amendment isn't blocking anything, and I think that's probably the case. But it turns out that you have the commerce clause, that all faithful and trusty clause, which people can say is going to cover the business of abortion as it involves interstate connection.

And given the fact that exactly the same line was used with the civil rights cases back in 1964, they justified it under the Commerce Clause. They didn't want to get involved with the 14th Amendment on all of that stuff. I think, in effect, that Congress can do this, which, of course, then leads to the very ironic proposition, who's running Congress?

Because the proposals could be anywhere from a total ban on the one hand, to a complete permissive operation on the other. As far as I can see, once you're out of this situation with respect to Dobbs, there isn't any real strong individual rights argument, either way, that can influence what's going on.

So what happens is, I think the Supreme Court decided it wanted to get out of this business. It wrote an opinion which let everybody get into the business. The net effect is we have a lot of institutional instability associated with this. And it has, of course, been an unmitigated political disaster for the Republican Party, which was protected by Roe from having to take very strong positions on something which would alienate their economically conservative and socially liberal position.

Somebody else has said to me, and I take this as true, is that before we had this decision, there was a kind of a split of opinion. The majority of the people in this country regarded abortion as immoral, but majority of the people thought that Roe was right and it should be kept legal.

Now it turns out the sentiment on the morality of abortion has shifted in favor of that. I haven't changed my views about how deeply problematic it turns out to be, so that the political winds are gonna be much more powerful against the Republican. And when they're trying to figure out what it is that they do to tighten this thing beyond what happened with the first trimester, I think they're going to fail.

But at this point on the legal stuff, I think what the decision in Dobbs does is it throws it back to Congress and to the state. And the interactions amongst them are going to be very difficult because amongst other things, the preemption doctrine would give priority to the federal government over the state government on issues where in fact they wish to claim.

And so we got ourselves into a very complicated situation. I remember before Dobbs came back, I always had the following attitude. I said on Mondays, Wednesdays and Fridays, I think about the legality of the Roe decision, and it was terrible so I want to overrule it. On Tuesdays, Thursdays and Saturdays, what I do, in effect, is think of the stare decisis effect and the political reaction and I wanna leave it fit, and I took a rest on Sunday.

Well, I'm gonna make believe today is Sunday and I'm not gonna say anything.

>> John Yoo: So here's one, this is an interesting difference between me and Richard, I think, between libertarians and conservatives. Richard, I think, would be willing to give the federal government far more power to defend a kind of libertarian approach to individual rights, where I think conservative like me is also worried about, I don't know, freelancing, for example.

So what concerns me about Richard's argument is if you look at the 14th Amendment, if you read it that way, it says Congress can enforce the 14th Amendment, which protects life, liberty, and property. So actually the word that I think is the most troublesome is liberty. What is liberty?

How far could Congress go in defining liberty? So Congress has generally tried to expand rights by using the Commerce clause and some of the outer reaches of this use are, you know, very different. But here's a hypothetical Richard. I mean, if you allow the federal government to define life, liberty, or property, you like them to do it in an expansive way.

But suppose Congress wants to narrow it. Suppose Congress were to pass a law saying we define liberty not to include the right to refuse a mandatory vaccine, or we define liberty as balancing people's interests. So we're gonna give Congress the right to impose a mask mandate. The reason I choose these are, these are things that the Supreme Court has struck down so far.

 

>> Richard Epstein: And rightly so.

>> John Yoo: But suppose Congress were to do this not through the Commerce clause. You know, that's what Biden claimed. He was using the Commerce clause delegated by Congress through the Public Health act. But suppose Congress were to pass laws like that, constricting liberty or constricting the definition of life, would you be so willing to give the federal government that broad power?

 

>> Richard Epstein: No, look, I'm just saying conditional upon the way that DOBBS came out, it seems to me that what happens is that the result, it's a political free-for-all. When it came to the original decision, I wrote about this back in 1973, and I took the view that the regulation.

 

>> John Yoo: By the way, I was around for that, but I wasn't reading the law reviews yet.

>> Richard Epstein: How old were you, John?

>> John Yoo: I would have been six.

>> Richard Epstein: All right.

>> John Yoo: I didn't start reading the Southern California Law Review until I was seven.

>> Richard Epstein: I know you're precocious, John, but this is preposterous.

But I was at that time, I guess, 1973, I was already on the University of Chicago faculty when Phil Kerlin stops me before the elevator. He says, you're gonna write about Roe v Wade, and that was a command and control commodity at that time. So I wrote about it for the Supreme Court review.

And what I did say was, in effect, that the key thing to understand was the following relationship, Roe versus Lochner. And I said, I think that Roe was a case in which the police power protecting innocent life from destruction is very much within the health standard that Lochner had, whereas regulating wages was not.

And so my view was that Lochner was rightly decided and that Roe, in the end, was wrongly decided, and most people generally took the bull. That was just a question of judicial expansionism. And so, in my view is, if I'm correct, the way in which you'd have to do this is to show that all the things that you are talking about are legitimate health measures and start with vaccination.

One of the things that, of course, write an issue is, is this stuff killing you or is it saving you? And I have zero trust in the CDC in anything whatsoever that it starts to save. There are many people out there who start to believe that these vaccines are very serious in terms of long term risk, myocarditis, a bunch of other things.

And under those circumstances, for the federal government to put forward a health claim and not allow anybody to challenge it strikes me as being preposterous. So I would strike down all of those laws. In fact, I think at this particular point in time, there is so much public opposition to the reimposition of these ban and the incredible shoddy work that's being done by the FDA and the CDC on trying to validate this current vaccine that the uptake will be very, very small.

Anybody who asked me what they should do, I said, you'd be absolutely out of your mind to do anything that takes another round of vaccines. Whatever you thought about the first round, this round is all cost and no benefit. It's simply not worth doing. So I would answer this question by saying, the reason why I'm so crazy about all of this is I never thought that this court should have gotten into this business to begin with.

And if it never had, we would never have this huge echo effect in the way in which it's going. But all the other cases, essentially, I think that the health justifications have to be serious, and I think that the health risks have to be taken into account. And it's not for the federal government to simply assert something which is so heavily controverted to announce that we can now impose mandatory vaccines on you.

I mean, there was this Jacobson case. It's so utterly different in terms of its circumstances. The most conspicuous one of which was the only thing that Jacobson required was that you pay a small fine if you did not get the vaccine. It didn't require you to take it.

And I think it would be barbaric for people to force you to take vaccine on the theory that you're protecting others when there's very respectable amount of evidence which says it doesn't protect other people. And there are even some people who believe, quite plausibly, that if you start giving people the vaccine, what it does is it means that they can harbor higher levels of the COVID virus and so forth, and therefore they will transmit more to other people by staying alive than they would have if they were unvaccinated.

There's just a lot of complications about all of this stuff. We can't debate it on this show. I do try to read these studies, and I have to say my natural inclination is not to be an immunologist, but you have to look at all of that. And so I think the cases are really very different.

And so I basically stand to the old line. I think that there was a uniform sentiment before Roe that the police power covered the case, and Justice Blackmun and Justice Brennan, they were so completely cavalier about this. I can still recall shortly after Reagan won, I visited Justice Brennan's chambers with Michael McConnell, who was his clerk.

And when the justice started to talk about Roe, he thought that anybody who disagreed with it was sort of a jokester. He had no qualms whatsoever about that decision. And of course, people like myself from the very beginning had those qualms, and I haven't lost those qualms. Although let me just give you one point as a measure of how stupid and confused the Roe opinion was.

They cite this famous passion from Justice Holmes, saying, this is a constitution designed for people of widely different views. And Blackmun cites it home, cited in Lochman for the proposition we have to give the legislative its way. And Blackmun turns out and cited for exactly the opposite proposition that the Constitution protects individual rights.

If you have the same clause being but two different arguments, it's clear that somebody doesn't understand what's going on with the constitutional fabric, and that somebody was Harry Blackmun.

>> Troy Senik: Let me get you guys to some of the broader questions that we got. This one I think it's interesting.

John, in North Dakota, we're big in North Dakota, fellas. Asks, how important is a Supreme Court justice's skill as a writer? I ask because I always thought that Justice Scalia's legacy will be larger than it otherwise would have been because of his ability to write clear, memorable prose.

However, I've also found myself wondering if this can be a drawback if justices who are too focused on writing to appeal to the masses or the press may compromise some of their influence within the court. So I guess in some ways, it's kind of a question of whether justices should play the inside game or the outside game.

John, I'll let you start on this.

>> John Yoo: That's a really interesting question, and I do think that John is right. As you said, we're big in North Dakota. My view is, everything in North Dakota is big. I do agree with his evaluation of Justice Scalia. I think Justice Scalia will go down in history more for his writing.

A lot of the times, he was writing by himself or in a concurrence. Wasn't really writing for a great big majority of the court, although he did write some very important majority opinions. I also think that's true of other justices. Richard just mentioned Oliver Wendell Holmes. Some of Oliver Wendell Holmes' great quotes were from dissents or from concurrences, but not from majority opinions.

Sometimes when he was writing for the majority, some of his quotes were not the happiest ones, like his famous quote from Buck versus Bell, right, where he said something like, which upheld the forced sterilization of people who are considered to be mentally retarded. And he said something like, three generation of imbeciles is enough, and upholding the power of the state there.

So that's exactly what he said. Yeah, wow, my powers of recall get better with my old age. I think that's a good example. So I think that the writing does add value to the force of logic and reasoning. Law is still a discipline that's about persuading other people to join you or to agree with you.

And so it's not just rhetoric, but I think force of reasoning combined with powerful writing can make a difference. Here ,I would point to Chief Justice John Roberts. I think Chief Justice John Roberts is a very good writer. I find him very wishy washy on the principles. But sometimes when he marries the two, when he's got principle and good writing, it can actually lead to some powerful results.

I think, for example, the Harvard case, he in an earlier race case, had said, the way to stop discrimination on the basis of race, on the basis of race is to stop discriminating on the basis of race. And I think that line has had a powerful effect in the way people have thought about racial preferences.

And hopefully, the Harvard case is the beginning of the end for the racial preferences industry. I think the principle was clear. I think the logic of the position was strong. But also, I think Chief Justice Roberts writing very much helped there. And in that he's trying to recall I think maybe one of the greatest writers in our history on the Supreme Court history, who also married principal to great writing, was Chief Justice John Marshall.

I think particularly McCulloch versus Maryland, has some outstanding passages in it. And it's interesting for a case where he was doing a lot. I think this was like Richard's point, actually, on the 14th amendment issue. Marshall was really reasoning from the logic of having a federal system with two governments, a federal government and state government, how they had to interact together.

Even though it was hard for him to point to any clear constitutional provision that dictated, determined the result in upholding the existence of a national bank.

>> Richard Epstein: My opinion is, I think that good writing, dramatic writing, what it does is it amplifies the difference. So I think of the old poem, when she was good, she was very, very good.

And when she was bad, she was horrid. And so when Justice Scalia is on his game, he was, for example, in the case involving the special prosecutor, Morrison against Olson, the prose was truly memorable. This wolf comes as a wolf, was one of the great lines that you could ever imagine.

But there were also sometimes he wrote opinions that were simply dreadful, some of which he managed to repudiate. Afterwards, he wrote the hour case on the question of what counts as an all who is covered by the Fair Labor Standards Act. And seven or eight years later, he said, who wrote this absurd decision?

And it turned out it was he who had done it. And sometimes what happens is that the power of the prose kind of overtakes you and leads you not to be critical in the way in which you think about some of these issues. And even on the affirmative action opinion, one of the things that I've often said, and I knew Justice Scalia as a colleague when we were at the University of Chicago, having to deal with these things on the ground.

He would be so vehement about the situation that even when you were in kinda fundamental agreement with him, well, what happened is you just didn't want that kinda prose to take over the case. And so what happens is you become that florid, you can drive away some of your national supporters, even though you may well be right on the argument.

The justice, I think, that was not mentioned, who would also rank, I think, one of the top three or four stylist on the Supreme Court without those effects was Robert Jackson. I mean, it's not that I agree with him on many of the things that he wrote, but he was a remarkable stylist, even in small opinions that really didn't seem to endure.

He just had a gift with language and a real commitment to the subject matter. And I think that Jackson's influence has remained pretty strong, notwithstanding the fact that he was only on the Supreme Court for about 13 years before his untimely death, shortly after Brown v. Board of education was decided.

So, again, I mean, it's always some kind of a mixed bag. There are some people just bad writers. There's some people have such writers cramped that they have to resign. Judge Whitaker, he wrote perfectly respectable opinion, but they basically took the life out of him. And he quit after six or seven years because he just couldn't handle the pressure of having to decide the way in which these cases were done.

So good prose is always there. Flamboyant prose is not always the best kind of prose. And some truly great writers know how to change their tone and nuance depending on what side they are on an issue or the way in which they think the public works. But make it very clear, those justices who do have the gift of gab in terms of their writing are going to be more influential than those who are not.

They will, like Justice Scalia, attract many famous supporters, and they will, like Justice Scalia, attract immensely strong detractors.

>> John Yoo: Can I throw in one extra thought on Richard's point, which will give hope to Law Talk listeners everywhere, is if Justice Jackson may be the greatest writer on the court, second, maybe to Chief Justice Marshall.

I think this is right, Richard. Justice Jackson was the last justice who didn't go to law school.

>> Richard Epstein: Yes, he dropped out of Albany Law school, I think, and then went down to Elmira, some such place in New York.

>> John Yoo: It's not too late for Troy.

>> Troy Senik: John, it's too late on so many fronts.

 

>> Richard Epstein: I mean, look, I remember, one of the things that I think is a mistake about the Supreme Court is the only people we now think of seriously appointing are either judges who have been on the circuit court or solicitor general. I think everybody on the Supreme Court now fits that particular description.

And what it does is it there's a certain lack of perspective that comes from being a serious law professor, like Frankfurter was, or Black, having been a member of the Ku Klux Klan and a member of the Senate and so forth. Or Lewis Powell had been a kind of distinguished member of the bar, I think what happens is a little bit of hybridization in terms of the paths by which you make it to the Supreme Court would start the whole thing.

I mean, if you're trying to figure out the way in which you would think about the Supreme Court now in terms of its performance, I would say that it's certainly workman like on both sides of the issues. And who are the stylists on the Supreme Court today? I would say two.

One on the left, one on the right. I think it's pretty clear that Gorsuch has a certain way with words, which is very powerful. And I think Elena Kagan, also on the opposite side, do. And when the two of them start to disagree with each other, as they do on some of these cases, having to do with the question of whether or not you have to essentially take things on your website published by people with whom you disagree, when you have religious objections to it.

The two of them are really very, very good at going at it. So, I mean, it's not as though the skills are gone today, but somebody like me, what I try to do when I look at this is to see what I think is the right answer. And then what I do is I look at the rhetoric and I think it's on the right side.

I praise it. If not, I don't praise it. But I think that's the way everybody starts to work. But I do think that we know which judges have this kind of flair, and I think the ones who have the flair tend to get the greater attention.

>> Troy Senik: Okay, I have a couple of solo questions, actually, one for each of you.

John, I will roll out yours first. This is from Terry in California, who writes, it never occurred to me until Troy mentioned it on a show once that John has served in all three branches of government, Congressional staffer, Supreme Court clerk, Justice Department. As someone who is interested in government, but has never really been around it, I'm curious to know, based on your experience, what would surprise people the most about how each of those branches works compared with the way they probably think it works?

 

>> John Yoo: Well, the one lesson I have is the hill working Congress is the most fun. I had such a great time. I still think it's the best job I ever had in terms of fun, because you spend most of your time trying to stop other people from achieving their hopes and dreams.

So I think people would probably be surprised to learn that they probably have this idealistic Mr. Smith goes to Washington kind of approach to Congress. But I think you spend a lot of time trying to stop other people from making any progress on their issues. And then I felt when I was doing that, I was sort of acting within the framers design.

I mean, I thought the Constitution was created basically to prevent government from acting most of the time. It's a very status quo document in a way. So I think that's the most surprisingly people probably would learn to think about Congress. With the judiciary, I think people may overstate, and we might do this on the show.

Since we focus on the major decisions, we may overstate the workload of the courts. It sounds like the courts are always deciding the most important social questions of our day, like abortion or affirmative action. Of course, for most district judges and circuit judges, they're spending 90% of their time, if not more, deciding criminal cases like drug cases and immigration cases, and reviewing the most technical, boring regulations there ever could be.

And I think people may think that judges have a lot more discretion and power than they actually might on a day to day basis with the executive branch. Actually, Troy, I'm curious to hear what you think would be the most interesting thing about the executive branch. Since you and I were both a political appointees, we might have been very busy, but I thought the executive branch was just so boring.

So much of the stuff you work on the executive branch is just boring process. The millions of things that the executive branch thinks it should be doing and can do in the daily minutiae of everybody's lives is really impressive. It's amazing that the federal government tries to do all the things it does and how boring and mundane a lot of these things are.

So we might be reading about, well, the war in Ukraine. What's Biden going to do about that? Or canceling student debt. What's Biden going to do about that? I don't spend a lot of time thinking about all those people who decide what's going to be an endangered species or not.

Are we going to add this little toad onto the list of endangered species? All the things that the government's going to think about and look at when it decides about adding the horned, what is it called? Something like the three toed horned frog onto the endangered species list.

But actually, Troy, I'm curious, what do you think about the executive branch most surprising?

>> Troy Senik: Well, my experience was a little different than yours, because you were in a cabinet department. I was in the White House. So I had other aspects of it that were probably more fun than yours.

Just because the ceremonial aspects of the presidency lead to this weird sort of perpetual carnival that is moving through the White House, by which, I mean, there were days, this happened when I was working there. There were days when you could go in the east room and see the Stanley cup because the Stanley cup winners come to the White House, because the champions of all the major sports leagues come to the White House.

There were days, this is not something that I really celebrate, but there was a day when the Jonas Brothers were there to play for the Easter egg roll. So that part's a little different than being in the Justice Department. The thing I would say, having only experienced that branch, that people, I think people get wrong, and I think this is fueled sort of by media shows like the West Wing, for instance, where everybody is walking around with this commanding omnipotence all the time.

I just think people probably underestimate how much of the internal functions of a place like the White House look like the functions of any other office in America. And the fact that when you come in there, it doesn't make you any less fallible than you would be if you were working at OfficeMax.

My one specific example-

>> John Yoo: Look, Troy, just because you bear resemblance to Dwight Schrute from the office doesn't mean that the White House like any other.

>> Troy Senik: I'm just going to choose to ignore that. The one specific example I have of this, and then we'll move on to Richard's question, which is a doozy.

The one specific example of this I have, I've said this publicly before, is I'm not speaking out of school. But I remember being in the Bush administration and working on a speech about energy policy that was gonna be given, I think, the Greenbrier in West Virginia. And getting, I won't name the offices, so I don't implicate any individuals, but getting guidance in advance about the five things that we needed to hit in this speech about our energy policy.

And then once the draft had gone out and people were reviewing it, getting feedback from another policy relevant office saying, hey, this isn't our energy policy. None of these things are things that we actually believe in. So you get more crosswires in a White House than people might think.

Richard, your question? I really hate to tee this up, but I feel duty banned to uncork it. Mark in Oregon writes, I enjoy law talk tremendously, even though I'm not a lawyer or deeply versed in legal issues. And I always get a chuckle out of Richard's love for Roman law.

That said, I've heard him on a few occasions.

>> John Yoo: No, no, no, don't do this. Don't do this, no.

>> Troy Senik: You'll like this, John, I think, that said, I've heard him on a few occasions on Law Talk or The Libertarian discuss the topic, and I always quickly lose the thread.

This is the voice of the people. Richard, please help explain why Roman law is so important as if I'm eight years old.

>> Richard Epstein: Well, I could do it for a ten years.

>> John Yoo: Why, why, Troy, why?

>> Richard Epstein: Now what we have to do is we have to quiet Mister and John Yoo.

I think it's in many ways, of all the courses I've taught in the 56 years of teaching, it's the most distinctive course I've taught. And what happens is, at least when I taught it regularly at the University of Chicago, I would run a seminar with 23 students and I'd have 130 students sign up to take the class.

And the question is, why? Well, what Roman law does in essentially 8 hours is, you give people an alternative view on how you think about all major subjects. The ones that I taught had to do with roman procedure, roman contracts, roman torts, roman property, roman restitution. It turns out it's a highly systematic field.

And if you start looking at the kinds of solutions and then play them off against those that exist under the common law, you get a richer understanding of how both systems work and why they work under very different principles. It turns out, for example, if one of the things that you're worried about is constitutional interpretation and so forth, how you read a text like the constitution.

One of the articles I wrote about 30 years ago was essentially saying that the methods of interpretation that are done today in American constitutional law are identical to those that the Romans used in construing the lexiculia. Their statute, which had to do with the damages that were owing for the death of a slave or an animal, and so forth.

And then you take people through this stuff and go through the analysis. And what they see is that the kind of notion that is associated with originalism, for example, is much more fluid in the way in which you interpret statute than it is if you start talking about textualism.

And so what the Romans forced you to do is to develop a theory of implication of terms into a statute. And so, from the simple word unlawful, what they did is they developed an entire range of defenses having to do with contributory causation, consent, necessity and insanity, old age, and so forth.

And then they have to put these things together. The Roman pleading devices, which are found in book four of Gaius, essentially anticipate all the materials associated with stage pleading at common law. Famous article by HLA Hart, trying to get this thing right. And you have this delicious ability to explain why it is a roman scholar who was alive in 160 AD got something right that the greatest jurisprudence, generally speaking, in the 20th century, probably got wrong.

And so you go through it after and after. I teach a property course, for example, right now, using a book, Merrill and Smith and Brady. And so what do we do? We talk about the US tertiary. And that's the question, is whether or not, in any case, between a and b, can you set up the higher title of c as a way of defeating either the claim?

And the answer is when? Sometimes yes, most of the time no. There's the ad coelum doctrine, which is when you own property, you own from the depths of the earth to the top of the skies. Why did somebody put that doctrine in? And then what are the various ways in which we start to qualify it?

And you go through all the cases having to do with air rights, with mineral rights, with caves and all the rest of this stuff. And it turns out that the roman conceptions are really extremely powerful. You start talking about causation, and what the Romans did is they had a stronger theory of causation than the modern people have on this subject.

A modern type sent us talk about substantial factors, necessary and sufficient conditions. And then using these hopelessly broad terms, what they try to do is to figure out devices that will allow them to narrow the scope to respectable means. There is nobody who actually does causation. Particular cases that can use these paradigms.

The Roman institutions are much better. They don't start from remote things and start to cut it down. What they do is they start from cases called corpora, corpora, by the body to the body. You wanna know what's wrong in tort case, smack somebody in the face is what they're telling you.

And then they figure out how far you can extend this. So if you have a stick in your hand, you throw a stone, or these cases all gonna be forced. And then you come to a point where it kind of breaks down, of which the two famous cases are setting traps on the one hand, and feeding poison to people on the other hand.

And sure enough, what the Romans do is they take a statute, which deals with death and killing, and then they apply it to causa mortis prestari, i.e., furnishing a cause of death. And what they start to do is to tell you how you expand the theory of liability by very careful, incremental steps in a way in which the Anglo American law does not do, at least formally.

Then when you start telling people about how you're supposed to try cases, you say, if you're trying to figure out how you present it to a jury and you know the roman paradigms. You're going to be more effective than if you start to use the highly abstract language on the side.

So I don't teach Roman law as a kind of an antiquity curiosity. If you go back and you read this stuff, they're very sophisticated. It's not like reading Roman science on reproduction, where they don't know what the body's about and they have homunculus and all that stuff. These are very sophisticated guys.

And so one of the things that happens is people who know this stuff essentially are given a second way of thinking about every subject in public and private law. And the thing that I always am most proud about in many cases, the number of students I have in that roman seminar who end up with Supreme Court clerks in one year.

I think over quarter of the class got them. And the class really helps. So this is not just some idle tit-tat. My entire academic career has to some extent rested on the ability to integrate roman, medieval and modern themes together in an effort to develop a coherent theory.

About anything from constitutional law on the one hand, to copyright law, on the other hand. So I think that everybody should take Roman law. The problem is today is I can teach it, and I'm 80. But the number of people who are under 80 who could teach Roman law comfortably is very, very few, because it's just dropped out of the curriculum here.

To a large extent, it's dropped out of the curriculum in England, where I studied it back in 1964. And so I'm afraid that this subject will vanish by neglect and that generations of people will be weaker for not having any exposure to this particular stuff. There are a couple of books that help.

The Barry Nicholas introduction is excellent. But there's one thing that you learn about Roman law, and it's as follows. If you just read summaries and they start telling you, well, the duties of a sale vendor is this, and the duties of a sale buyer are that, it's kinda sterile.

What you have to do is the way I was taught by David Dauben, one of the masters, is you sit down with a text, and you start with 1811, and then you analyze it very closely, go through all the variations. And by the time you put these little bits together, you actually develop a fairly clear worldview.

And that's what's happened to me. So I regard this as the greatest chance benefit in my entire academic career, is when I went over to Oxford, I decided not to study politics, philosophy, and economic. I decided to study law so that I could learn the medieval stuff and the ancient stuff, and it's paid off far higher than I even imagined at the particular time.

And so it was a natural monopoly, and it gave me a huge intellectual advantage. And I wish there were more people around today who cared about this than were prepared to teach it. But every time I hear somebody say, well, this is an irrelevant course, and so forth, I'm saying, it's only irrelevant to people that don't know anything about it.

Anybody who knows this particular subject realize that it's a huge intellectual assist for every kind of problem that you have to deal with today, or indeed at any other time throughout the history of the world, starting with justinian, going forward is not a bad idea, but figuring out how law ought to work.

 

>> Troy Senik: Who is this ten-year-old? Thank you. No, that was good, Richard, that was good. We're running out of time and we've got too many questions. I'm going to give you guys two more very quickly, just on the way out. This one, just because it piqued my interest, I had never really thought about this, this is from Nathan in North Carolina.

Dear professors, I've noticed a trend since Donald Trump's election. The Trump influence, nationalist, populist, America first, whatever you want to call it, has slowly spread throughout the GOP's elected officials. When Trump was first elected, there was no one like him. Pretty quickly, we got Trump style members of the House.

Now we have a handful of Trumpy governors and senators. The one branch that seems immune to this so far is the Supreme Court, where all of the republican justices seem like they could have been appointed by pretty much any Republican president. Do you think the court will continue to be an outlier, or do you think we'll see a new generation of populist Republican Supreme Court justices in the near future?

John, I'll let you take that.

>> John Yoo: It's a really interesting question. First, I don't think Trump created this kind of America first MAGA approach, whatever you want to call it. I think that he sort of gives vent to it, but that these forces of populism were rising in both parties, actually.

I mean, you see Donald Trump and Bernie Sanders kind of meeting at the extremes in their views about trade and protectionism and government involvement in the economy, industrial policy and so on. So I don't think it's just a Republican Party phenomenon. You're also seeing it on the left.

I think it reminds me a lot of the late 19th century, actually, when you saw the populist movement in our country really first arise in the gilded age. So that's one. Second thing, it's no surprise that the courts would be the very last institution that would accept any kind of populist movement.

Again, like in the gilded age, in the late 19th century, the courts were the ones that were striking down on behalf of the Lochner doctrine, as Richard pointed out. All of these populist and progressive measures to expand the power of the government. So I would expect the courts to be the last branch.

And in fact, that's, I think, what the founders wanted. They wanted the court to be, maybe they follow along with society, but they get dragged along at the end of the train. They're the caboose of political movements. I think also maybe this is the last point is if the courts were ever going to be populist, I think it would take some kind of big bang like confrontation.

If you look at the last time this happened, the court's defense of economic rights, it lasted from 1870 to 1937. The court stuck to it for 67 years. I wish they had stuck to it a little longer. And they only did it before the onslaught of the Great Depression and the New Deal.

I mean, it took a end of the threat of packing the court to throw the court off its balance. So to me, I think the court is gonna continue on with its sort of counter majoritarian, anti-democratic trend, which is its job, and it would take some kind of big bang to force it into some kinda more populist mode.

 

>> Richard Epstein: Look, I have a slightly different interpretation. If you recall, and when Trump was running, a lot of prominent originalists, Will Baude was amongst them, said, we can't have Trump as president. Because he's gonna be too irresponsible in the way in which he deals with our sacred constitutional provision.

And I kind of signed that letter out of concern. People said, we're not sure you are an originalist. I said, I'm not sure whether I'm an originalist either, but I am worried about Trump. But then what he did is he delegated the things out to Leo and to McCain, and all of a sudden, he didn't care about it.

And so what happened is people who were extremely strong were able to get these jobs. I mean, I certainly wrote for a large number of people to these characters, and these guys tell me, I think they're really very strong. I never got a reply, which is perfectly proper, but I would see some of them be appointed.

And so when I look at my former students and researchers sitting on the Supreme Court, my attitude is, I just wish there were more of them. And I have no question that the average caliber, in terms of academic achievement of the Trump appointees are much stronger than those associated with the Biden appointees, mainly because he didn't care.

And I think so long as you get somebody in the White House who does care about these things and has the right set of values, it would be there. And so let me just mention one little story. What happened is Mitch McConnell, was coming to the Federal Society to speak and to talk about the judge appointment.

And so Eugene Meyer wanted somebody who was less political to talk about it. So he asked me to comment on what McConnell said and what I said, well, if you look around this room, I have a huge number of my roman law students in here. And this is the way it works.

It turns out that McConnell has to get people through the pipeline. But the job of me and other serious academics is to give him people who are fit to put through the pipeline, and that's why the Roman Law course is so important for what on. So even in that particular context, I was hocking my own shiner about this stuff.

But in the room, I think I had 40 or 50 of my Roman law students.

>> Troy Senik: It is the road to all judicial success. This is my final question for you, guys.

>> Richard Epstein: Yes, it is.

>> Troy Senik: It's a nice one to end on. This is from Diane in Tennessee.

If you had to pick one book that was the most important in your intellectual formation, what would it be?

>> Richard Epstein: I was asked that question by Jeremy Rozansky before he came to law school and took Roman law when he was in the college at the University of Chicago.

And the book I answered was Gaius's Institutes, a Roman law book.

>> Troy Senik: I'm just pitching him right over the middle of the plate, aren't I?

>> Richard Epstein: And the reason I did it was because the book is in many ways, even in some sense, more important and less important than Justinian.

Justinian was written in 530 AD, and it was written in a sanitized version, trying to, basically, get rid of ancient practices that no longer last, to try to sanitize it. The only book we have of existing Roman practices contemporary with their operations is this Gaius book. And it became a complete revelation.

And so, when I was trying to figure out how I formed my worldview, I spent a lot of time working with that particular book. It's a book of remarkable clarity and perception. So recently, I had to write a case on nominalism and the issue of what can you do with the definition of a public nuisance.

A very explosive term. And so I quote from Gaius the passage, you could call anything you want and make it into a nuisance, but it doesn't change what it is. It's just simply an artificial convention that you're imposing upon that. And this was his very early and very sophisticated defense of natural language as being immune from statutory stipulation.

So it's not as though I think I made a mistake at that time. But you've asked me three questions now, and they've all involved Roman law. How could it possibly be irrelevant?

>> Troy Senik: John, extract us from the Roman law whirlpool here.

>> John Yoo: I will, but I couldn't remember the question, was it any book in any subject, or it had to be a law book?

 

>> Troy Senik: No, the one book that was the most important in your intellectual formation. So I don't think that has to be bounded by the law.

>> John Yoo: So to me, I hate to be ancient world too, but I would say Thucydides.

>> Richard Epstein: Great book.

>> John Yoo: I think Thucydides is a wonderful book to read.

It's not really limited to law, it does discuss a little bit of the law. But it's also mostly about a war, a great war, the worst war in the Greek world. Who are the ones who established the basic principles of Western civilization within which we still live. And had a lot more in common with each other than many countries in the world today.

And yet they waged a terrible war that destroyed them. And they destroyed the Greek city state system and allowed Alexander to conquer them. It's a wonderful book. And if I think of something more recent, cuz I read that one in high school, if you were talking about something in college, gosh, people are gonna love this.

I really, really like Machiavelli's The Prince. I think it's a great book. For me and Alexander Hamilton, we're on all fours and our admiration for studies of executive power. So, yeah, I think Machiavelli's The Prince is actually really, really well worth reading. He's the first modern political scientist, I think.

And in the sense that he doesn't attribute things to the gods or to the fates. He's the one who really founded the way we think in the modern world about politics as being about people pursuing their self-interest.

>> Richard Epstein: Look, let me say something else. I recently wrote about this.

I think the great tragedy in modern education is the decline of Western civilization courses, which had an enormously heavy stress on some of the ancient great writers, on the very simple model. If these guys could last 2000 years, they probably had something worth saying. And I still think that's the tradition I would defend.

And Thucydides, of course, was one of the anchor tenants in that particular world.

>> Troy Senik: I'm just reeling at the notion that you read the history of the Peloponnesian war in high school, John, I went to the wrong school.

>> John Yoo: Yeah, wait, wait, wait, Troy, I read it in Greek.

 

>> Troy Senik: All right.

>> John Yoo: I read it in the original in high school. So there's nobody who does that anymore. That is the show of the decline of Western civilization, I mean, no high school students read Thucydides in Greek anymore.

>> Troy Senik: I will say to your point, I hadn't really thought about this until you said it, but it was a very good point that what makes some of these great texts great is the compactness, which is not a thing that you would really associate with Thucydides.

But if you read the Melian dialogue, you have a pretty good understanding of how international relations works then and now in a really compact series of passages. Great choices from both of you, although I can't say that I'm as versed in Richard's choice, all right? But I will be by the next episode, I swear, Richard.

 

>> Richard Epstein: What happens is we will spend more time on riparian rights.

>> John Yoo: We really should we should have an episode on Roman law. I'm willing to suffer for an hour to talk about Roman law. I think this would be a lot of fun. It would have been one of the least listened to episodes of Law Talk.

But I think I was gonna say, you just wanna do this to Waldorf and Statler it from the balcony.

>> Richard Epstein: Yes, I'm gonna give you but another example. The other day in class, I taught a case called Iowa and Nebraska about the muddy Missouri and the relationship of the doctrines of alluvion and avulsion to the change in the river to whip breaking through.

And all the precedents on which-

>> Troy Senik: You're gonna get people all hot and bothered Richard.

>> Richard Epstein: But all the relevant precedents started with Roman law.

>> Troy Senik: I mean, you have made your point.

>> Richard Epstein: Basically, they started there, and the adoption has been perfectly universal across all known societies.

 

>> Troy Senik: Nobody is leaving this episode agnostic about your feelings about Roman law. All right, fellas, thank you both, as always, thank you to our producer, Scott Immergut.

>> Richard Epstein: Ave, ave.

>> Troy Senik: And thanks to our listeners for all those wonderful questions. Remember to do us a favor and thank the show wherever you get your podcast, we'll be back with you soon.

Until then, the Faculty Lounge is officially closed. 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.org.