We are trying to hector people into making sense of daily choices when the right strategy is actually to liberate them and let them use their common sense sense and initiative and ingenuity and emotions to try to do a good job. Over time, judge whether they are doing a good job. Host you the former vice chair of covington, you have written a book called life without lawyers. Ay. What is the legal structure that allows the people who run the lay grounds and the parents to let kids go out and be kids . What legal structure does that . What is legal structure that liberates teachers to act on their instincts in running classrooms and instead of being chained to a compliance manual . Host you spend a lot of time talking about teachers, health care and rules around them. Guest health care, doctors and nurses spend half the day doing desk work, filling out boxes. It causes them to burn out because all these rules and compliances, they cant internalize them. Its not about the Good Practice of medicine, it is about, did you comply with this, did you comply with that on the privacy regulations . Did you meet every criterion to get reimbursed . Friend of mine used to be the president of Johns Hopkins and he told me a story about the frustration of dealing with the health care bureaucracy. The doctor kept getting the reimbursement form bounced for a patient. He finally got real person on the phone at the Insurance Company and they said, why do you keep bouncing and the insurance prison said, because you didnt check the box, did you ask the patient whether she had ever been a smoker . And the doctor responded, i didnt check that box because the patient is two years old. So you have these systems that are designed to be complete, like Central Planning run amok, that dont allow people to account for the many varied circumstances and it drives people nuts. Host i want to go to a quote from your book the death of common sense, rights are not the language of democracy, cochran compromise is what democracy is about. Rights are the language of freedom and are absolute because their role is to protect our liberty. By using the absolute power of freedom to accomplish forms of democracy, we have undermined democracy and diminished our freedom. Hope us understand that. Guest you are in the workplace and youve got a worker who isnt getting along with people or isnt performing up to level up for whatever reason and people kind of know that and that is in every workplace. But you feel you cant get rid of the person because they are in a protected category, they are a minority or protected or old or young. So you have situations or people are no longer free to act on their best judgment because of the socalled rights of someone else. Take university today, where students are claiming if you teach something it makes them feel unsafe because it has gender stereotypes and other things. They are claiming the right not to feel unsafe. What about the rights of students who wanted want it . Host we are going to get your microphone on and we left off at key leader king lear. I want to ask you, are we a rightsbased society and if so, shouldnt i have the right, even though i may be in a protected category, to be a full member of society . Guest well, it depends on what you mean. The rights that our framers gave us were rights against state coercion. Government cant tell me what to say, the first amendments, they cant take my home away or barge in, fifth amendment. Fourth mm is unreasonable search and seizures. When you are talking the Fourth Amendment is about unreasonable search and seizures. When you are talking about it, it is about compromise and accommodations. There is no perfect word world where no one will be offended. Employers have to make choices of the time that adversely affect one person in the interests of the benefits for everyone else. So society is not about getting what you want, its about dealing with people and finding groups that you get along with and you feel productive with. So the modern use of a rights is all about its not all about but a lot of it is about selfishness. The reason we are sensitive about this is we have some horrible social values, regional segregation, discrimination against all kinds of people. Yes, we needed to change our values in the 1960s, but you cant connect into a general theory that any time something bad happens it might be a violation of your rights, because what happens is you end up freezing everyone elses rights. In the land of the first amendment, no business will give a job reference, because that israel at covington and burling. If you Say Something that is negative if you claim it violates your rights and you Say Something positive in a dont work out, they might claim its violating their rights. We created a system where rights are not a protection of freedom or a boundary against abuses, its a tool used as a weapon by one person to get what they want often. Ho another quote from the death of common sense,he utopian urgehat prompted us in recent decades to read the world just instruction manual, naming it the law of the land, has led us to invent a device that, like detailed rules, avoids the untidiness of human judgment. It goes by an engi name, proces b its purpose isew. It once existed to help humans make responsible decisions, process now has become and end unto itself. Guest welcome to the ability to rebuild americas infrastructure. It is hard to be old build a high speed line because do you care about the scenic views are Getting Energy from the wind farm in the midwest . What about the local community . Big about the communities that the power line goes over. Each of them claims a right to have its own process. It literally can take a decade or longer to get a permit for something that society desperately needs, which is accessed to renewable energy, because we dont have a theory of authority. Host philip howard, you spent 28 years writing books about common sense and the common good and inertia, and has it been a waste of time . Guest [laughter] time will tell, i suppose. When i was in college, my summer jobs where the overage national laboratory. So i was surrounded at the age of 18 with really the smartest people in the world. Another nobel prize winner, and what i learned working for them is that you figure things out for yourself and you figure why they are right and what the reason for it is and you stick to it. I think ideas matter. We have eight society which is increasingly alienated, where government is increasingly dysfunctional, or no one has the authority to fix a school or not one student is proficient in math or english, which is big cities all over the country, where nobody has the idea of why it is we have spent twice as much for health care. We are overdue for a change. The change, i think, you have to give back each individual the freedom to take this possibility and to succeed or fail. Responsibility Means Nothing if they dont have authority. Not authority to do whatever they want, but authority abounded by whatever their mission and goals are in life. So the continued failure or frustration and extremism that has arisen in the last 15 or 20 years i think are largely the result of the fact that people have not 1 done what i have been writing about, the idea of some of the great thinkers, it didnt invent this idea, you got to get back people in a free society the freedom to be themselves and to christmas ability. So i am going going. Host what kind of law did you practice . Guest i was an appellate lawyer. Host what does that mean . Guest i take cases often that have been lost by someone and try to reimagine and try to think about, whats right and wrong here . What should the lobby . You are writing what should the law be . You are writing about what the law should be instead what it is. My books i hope should be readable versions of appellate briefs. This is why we have to get back to teachers to have ownership in the classroom. Being a teacher is an incredibly complex job. Have 38 students in front of you with very different abilities and emotional needs and household situations they are coming from, and the teacher is being asked to somehow keep them interested and engaged and respond to their own particular needs. I have a daughter and we have talked a lot about this. There is a wonderful book by the university of chicago by Philip Jackson called the moral life of the schools. They sat in classrooms and talked about what were the little choices, incident to incident that made us some teachers effective. What all the Great Teachers had in common, nothing. They were completely different from each other and drawing on their personality but they were real and they made the students realize they were engaged with them and cared about the learning process. You cant just make that into a routine and create a system that does that. If we dont rehumanize society, well, Neil Ferguson and i had a form, the historian forum, the historian at Neil Ferguson talked about the inability to run schools as a National Security problem. We have created a system where we are not training the people that need to be competitive with china and other countries who wont be able to actually take the responsibility we need them to take when they grow up because we are training them to check boxes on a test and not to be strong people. Host can you tell us about one case you argued that fits into your philosophy . Guest mean one of my law cases . Host sure. Guest there was a takeover battle in the early days of mergers and acquisitions takeover, in which there are two competing bidders, and the bitter bidder that lost argued the other had misled the public. They said its Public Disclosures with the sec were misleading and the winner should pay tens of millions of dollars in damages, back when that was a lot of money. And they won, and they won at the trial and Appellate Court level in now the only thing left was to go to the Supreme Court, and they cited the loser decided to change the legal team and i came on and i was talking to an partner, if you look at the situation, if you let somebody sue for damages because they claim you should have disclosed something differently, every person who lost the takeover battle could sue for damages, because there is a huge amount of money you can collect and you have a 25 chance of winning tens of millions of dollars, so it is worth paying a Million Dollars for a law firm to bring the lawsuit. Everything there is a takeover good have a lawsuit over whether somehow it wasnt done in exactly the right way, and it is stupid, because it will drag down society we made the argument to the Supreme Court that a loser in a takeover battle should have standing to sue during the battle to complaint about inadequate closures, but they shouldnt be allowed to sue for damages because it would end up completely distorting the whole process and everyone would be scared of a lawsuit all the time. The Supreme Court took it on that basis and we won. And that argument, a leading expert in the Securities Law at the time at Harvard Law School told me and the young partner that we cannot make that argument. That had been foreclosed by prior cases and it was ridiculous and we wouldnt have a chance. We persuaded the Senior Partners to let us make the argument and we went to the Supreme Court and won. Host your most most recent book not accountable, opens with Derek Chauvin. Why did you choose that story . Guest Derek Chauvin was the policeman who killed george floyd in minneapolis. He was thought to be a tightly wound person, odd guy, didnt have a lot of friends, probably should not have been on the beat with a deadly weapon, but under the collective bargaining agreement, the police chief had no authority to terminate, nor did she have authority to even reassign him, because these collective bargaining agreements have it away the managerial tools of people in the Public Sector, including the police force. You have a situation where in minneapolis in the 10 years prior to George Floyds killing, there had been 2600 reports of unnecessary use and purchase discipline was a 40 hour suspension. So what that story and the broader fact tell you is that we have a system of government in which the police are clearly unaccountable, and the facts bear that out. There is near zero accountability and that is true also of teachers and civil servants. This democracy is a process of accountability is a problem if you are trying to have a healthy democracy if literally the links in the chain essentially disappeared. Host another example you bring up in the book is lori lightfoot, the former mayor of chicago and the chicago Teachers Union. Guest right, she was trying to get the Teachers Union to come back to teach during covid. The usual of the Teachers Union for two years to come back to work has had, according to studies, had a permit effect on the learning, particularly of innercity kids who didnt have a home base they could go and essentially be home during that period. It is tragic that they what happened they refused to go on because as she put it, they dont simply want to run the schools they want to run the whole city of chicago. And that is kind of a problem in micro seat and the people we elect dont have authority in democracy when the people we elect dont have authority. Host is the nondelegation doctrine . Guest it is if you have a democratic government and someone is elected to have official authority, they cant delegate it, sell it or give it to any private person. Once they have the sacred trust of government that has been entrusted to them by the voters, they have to keep it. They cant give it away. As reflected in several places in the u. S. Constitution, the nondelegation doctrine. What i argue in not accountable is the giving public unions from legislature private control, mainly the power of collective bargaining that an elected official at a mayor or government has to make a deal with the unions on the terms and conditions of employment and that has in effect delegated the authority to run the operating machinery of government. It should be unconstitutional. Host does the case in the Supreme Court play into this . Guest it doesnt really. The chevron case is there was a ruling 40 years ago where the Supreme Court held that if Congress Wants to delegate authority to an administrative agency, the court will defer the decisions of the agency if they are within the realm of reasonable list. Any plausible view of what congress intended, the chevron case before the Supreme Court where it looks like the conservative majority in court is going to say no, we are not going to defer to whatever the agency is want within broad boundaries but look at the purpose for that statute and look harder at how agencies are making decisions. Host a quote from not accountable, government is failing in court responbities. No plausle public serpas purpose is served by restrictive union micromanagement, nor is there any publicurpose in public union contracts, including over staffing, massive overtime for minor mir schedule changes and pensions spiked by rigged overtime in the last year. Government cap possibly deliver what taxpaye derve until elected fials are reempowered to make basic management decisions, but public unions block the door to a better government, arms crossed. I thought elected officials were in charge. Guest no, they are not in charge. That is why we keep electing people in nothing changes because they are not in charge. You cant get rid of a bad cop. You want to move the office in the federal government, you have to collectively bargain or who gets to set at the desk. 99 of federal place get a fully successful rating because the supervisors cannot put one negative thing in the file without prompting a grievance proceeding by union lawyers, the Senior Executive service guy is trying to run a federal department, has to prepare for a lawsuit simply to say it this percent isnt doing their job. It is crazy. I go through all the examples, what has happened to the operating machinery of government, not talking about policy but how things work and how you fix a pothole and how youre in a good school, all of that, the police force, should be a scandal. We pay for government that is literally, because of the union contracts, designed to be inefficient. Anything out of the ordinary, a pandemic, sorry, is nothing about teaching in a pandemic. Instance distance teaching, there is nothing there so we have to renegotiate. How can you run a government that way . All the other essential workers went back to work, the nurses and doctors and Grocery Store clerks and delivery people, but the teachers refused to because of the unions. It is a scandal. I was on a panel or program recently with a former prominent democratic strategist who is now at usc in l. A. , and we were talking about this and he said, yeah, but who is going to protect workers if the union is not there . First of all, there was no need to protect them, the Civil Service was all ready there in the late 1960s when they allowed all the powers to be given. It was the right resolution accident that the unions got away with this. It is not working very well if it doesnt attract good people because it is so rigid and horrible to work in government. The price is no one wants to work for government, not the other way around. Go into these 200 page contracts , this is not about setting salary, these are about rigid work rules. Give me one example of a role that is good for the public, just one. He said the teachers had demanded and gotten smaller class sizes. I said, yeah, it is only a coincidence that means you have to hire more teachers. By the way, the s