about those broader categories of people -- at one point, about 25% of america's america fell into those broader categories. you know, the activists who attend meetings and form groups are very small of a fraction of the larger group. but the demography is not that different. ..

>> we can both probably say something about the. i will say, first of all, as somebody who was in her '60s, i want to report that is not uncommon for 60-year-olds to sit around and say that the world is going down the drain. this is, this hack, each human. so part of what it is, is older conservatives engaging in the same kind of crouching that liberals, that young kids are not doing the same thing we did, and we did a better. but i think the other part of it is that the economy, for example, has changed in such

fundamental ways so quickly so that many of these people have grandchildren, for example, who haven't gotten a job and who are living at home with mom and dad, and they don't appear to be getting on lies flatter the way that the grandparents or even the parents were able to do. and it's not surprising, and particularly not surprising from a conservative perspective, to moralize those failings. the other part of it is that the younger generation doesn't think the same way about a lot of moral and cultural questions as older people do. they are incredibly big differences in the younger generation is more black and brown than the older generation. so you just add all these things together, and take her from an conservative perspective, it's easy to be distrustful of people who appear to be doing things the wrong way, demanding

benefits and money and opportunities they have not yet earned. and just in general, they're just not the america we built. and so you do hear that from tea partiers. we built this country, we worked hard. it is being taken away from us. >> i think we have three minutes left, so one quick question. >> the tea party members, they remember the tioga river burning. they remember smoggy days, so why the opposition to environmental protection? >> i think that's a great question. i think it does get to a core question. people are conservatives and decide if conservation, they are related terms comments are not using more than you need are all ideas that people practice in the private and something that tea party members, clipping coupons and i can think would

seem like a related sort of ideological or value. but the thing about environmentalism, at least as it sort of perceived by many, is that it is a set of rules or an ideology that coastal elites want to impose on we'll america, right? they want to take away guns, they want to take away our cars, they don't approve of my lifestyle. and so that concern from this feeling that there are bureaucrats and people in the ivory tower mounted better idea of how i'm supposed to live was something we hear again and again. i think that is what was overriding other concerns that deeply into an idea of conservation, i think. >> i think this is also an area where the lead free market groups that leapt into the tea party for i have played a very active role. one of the meetings that we

attended in virginia and later turned out the same speakers were making their way across different tea parties in virginia, because word-of-mouth, somebody comes and gives a lecture and it resonates committee recommended you other tea parties and then invite them. it was campaign for liberty speakers who are paid professional speakers. they delivered an hour-long and probably dense and very boring powerpoint, which i thought, i was taking notes, and i thought this isn't going to go over, was about how the local committees designing bike paths were sent a manifestation of a decades long fury hatched by gender 21 under the auspices of the united nations and evolving democrats and republicans alike to impose communism on america by other means. and we got to the question. and i thought well, somebody's going to speak up you and ask a critical question, and not a

single person did. instead, they added examples, which, and i think this is typical of a lot of populous right wing thinking, you draw an analogy the expense of a small business owner or a homeowner with the local zoning board which is extremely irritating to people, zoning boards. and they really are. they try to tell you where you can put a window in the house. they tried to do that with me when i was building a house. i didn't like it. so they don analogy between those daily irritations from government bureaucrats and pettifogging rules, and the u.n. conspiracy to remake american businesses. put thermostats in every house that are going to regulate the temperature for you. we couldn't figure out where that came from, and then vanessa went to the fox news transcript and there it was.

many of the tea partiers that we talked to told us that they watch fox news six to eight hours a day. so i think there was a big push about the time we are doing our interviews to get a certain scary image of environmentalism out there, and we can report that it was working. >> all right. on that note to thank you all for attending. it was a wonderful discussion. [applause] there's a reception upstairs and they will be signing books on the second floor here. [inaudible conversations] >> every week in booktv offers hours of programming focus on nonfiction authors and books. watch it here on c-span2.

>> and now a booktv, richard epstein argues for a return to a smaller, more accountable federal government that operates on clear rules and limits itself in domestic fares. this is about an hour. >> there are a couple of seats up in the front. you all remind and my first year student, only on the great provocation will ever come sit in the front of the room. who will take one of the seats? thank you so much. it is a very great quest to be an to talk about this little book. i should say it is in part a prelude to a big book of networking on called the classical liberal constitution which has, trying to get the confidence of the of every major constitutional issue from the time of the founding to the presence and i hope to be back with that in about a year or so. it's almost done.

there's no point in being very modest about this. umass will try to do your very best to if you should fail you should fail in a grand way. i would rather be vitally wrong than narrowly right. in terms of the way in which i ago. i much prefer to be narrow broadly right been broadly wrong. and, in fact, i am relatively the lone speaker any academics. i was talking to several people before, and i said, getting semi-constitutional views and i said i don't think there's a single major constitutional academic they would subscribe to my basic framework. so i think there's something about the power of persuasion but that didn't get us to the current talk, which is one of the things about my views is they have no responsibility because they have had no influence in the current state of affairs. when you start to do this it's

quite striking because what i did when i tried to position the book on the intellectual universe is to contrast with other works that have come out. and what are these kind of works? there are very many important legal scholars were essentially populist in origin, he believed that we the people, not we the course, i to decide everything. you revise every 20 years to a group of 700 individual, none of them know what they're talking about. except for the hotel and this may be. then there's other people who say that if you really understand originalism, it's a completely dynamic subject so that when you get through a series of our for convention is to take a classical -- which vastly increases the scope of government of power.

then you have the conservative judicial, and their central principles of interpretation take abroad clauses and read narrowly, lest you make sure the courts have a significant role to take in limiting the way in which the legislature should operate because everybody understands the national solutions require national problems, and this is at a time when congress as a general approval rating of 11%. [laughter] so there are these very sort of powerful -- my purpose, my only purpose about from which this audience josie's uniquely -- see if you can have the liberal condition in some sense so the title of the book, "design for liberty" -- "design for liberty private property, public administration, and the rule of law" is designed to do that. in order to solve a particular problem, which have to do is to build identified what the

problem is you're trying to solve. the problem is essentially to create a government which is strong enough to do what you would like it to do and not so strong so as to engage in the kinds of behaviors which will essentially destroy the very people of whom it is pretended to protect. any descriptive political account of how governments are formed would come up with a rather melancholy conclusion that it's the exceptional society that survives, most of them in one form or another, right down to this, and it treats of relative peace. their entire places in the world where no coherent form of government emerged and the united states constitute a very tiny percentage of the worlds population and a few other western democracies are the major exceptions to those particular rules. there are structures differing in many ways of course. so the question is can you figure out what the common

elements are that they seem to understand or at least at one time have understood. and see if you can put these things into a book. to start with this thing, the problem then is how do you control little discretion? it must be broad enough to allow sense of government that has we discharge, it cannot be so broad so as to allow one faction of the country or the nation to simply run roughshod over the other. you have to give it the government and you have to constrain the government wants it gets it. i think the great writers all understood this was the center ponder the weaknesses i think in the general interpretation were that they were not sufficiently attentive to the various mechanisms that could be used in order to achieve that end, and private property and the rule of law for this particular account fits together quite close to but they must leave room for public administration and the way in which therefore. start with the rule of law. if you want to write an account

of how the rule of law fits into the general scheme of clinical freedoms which have to do is to take a definition that you yourself did not invent. the best of these definitions written by a man who never used the phrase, perhaps the greatest american legal thinkers of the century, at least in retrospect, a man who made major contributions to the constitutional theory jurisprudence and contract law and so forth, he defined as a series of procedural virtue which has the kind of things that everybody, regardless of political persuasion, will accept. these are such things as no bias in determination, clear and consistent rule implied by impartial judges, two individuals have noticed the particular charges. if you start to go our political spectrum and try to find yourself, there'll be no, we within the american system who will announce this formal opposition, although you will

find one here or there who think these are all useless impediments to the great system of social justice as they see operated by machetes and lawnmowers are so that becomes the sort of template, and it's a very useful template. the weakness in the formulation as i've given it is it's very much directed as most early century writings were. rather, doubt is to make the greatest administration state work. and so he was not trying to rail against the new deal tradition, or progressive tradition, not a particular classical liberal. he thought that all of these particular virtues that he had could coexist with respect to any substantive scheme of law, and serve hampered in its particular accent. it is ultimately turns out that it failed. if you start to create the wrong set of entitlements, the right set of procedures will not be

able to save you. so you didn't have to do is to figure out not as a definitional matter, which will persuade nobody, but in an analytical matter, how it is that you tie in the system of private property to the rule of law. in a way that the two of them function better each off the other. and essentially i think which you can show, if you have a system of private property and then you have a series of disputes involving trespass and defamation, breach of contract and so forth, if you don't have the structures of the rule of law, you will never be able to get a coherent society. you essentially find people who would you expropriate because their traditional system of the legislative system will not give them the kinds of protections that they need. but it's the other relationship that is much more difficult, which is to figure out why it is that when you want to keep the rule of law in the long run, you need to have a system of private

property. so in order to do that they would be very useful to get some kind of definition to a private property is, and to do so in a way which i think is not designed to make some kind of mystic subject, but kind of descriptive commonsense function. and i take no shame in the factor most of the influence that came with respect to the topics are very early in my career but i'm the only a matter law professor i'm aware of with first quarter and law school was spent studying roman law and had a very powerful influence on the way i started using. so what is this definition of private property? to give the short version of it, you mentioned you limit yourself to certain kinds of private property. not that you can extend, it just takes more work to start with lantern you start with chattels. you start with animals and fact in roman times it is very awkward thing known as slavery and judge include that. we will put it aside. i think these particular

purposes and concert on from the property that are intuitive one of these features? you have to identify the race. that is the thing which is subject to probably. that's generally not going to be too difficult except perhaps for land where you have meets and bounds of time as appropriate definition for what it is. in which are trying to figure out what is the private property suppose with respectively else in university. and essentially what you understand is if you want to do a system of private property, which gets one individual the exclusive right of access to particular thing, the right to use it as he sees, and the right to dispose of it, which have to do is to create the system in which it turns out that one person by taking possession of the thing is now entitled to bind the rest of the world without its consent big issue is why do let into the? because the alternative keeps everything in it, and makes them

impossible to get any form of coherent development. so every legal system known to the world keeps things in, which which are not subject to government, rivers, trails and beaches under the classical system, but private property which has to be -- is put under these rules. the first thing to note about is that the relationship of private property has to notice is always a relationship to the rest of the world. you have to be able to find a way in which creating this set of institutions allows one person to buy a phone else in universe when the universe is going to fluctuate and become quite uncertain in many, many different the mentions. the genius of the particular system is that the only obligation that are imposed upon the rest of the universe with respect to something i own is the duty to forbear. it is a slippery word and have to define it more narrowly in order to make sure it coheres, and doing what you do that

typically is to start with this. there are certain qualifications i don't want to push, but at least at this point your first approximation is it's the law of trespass and the law of nuisance. why is this particular system fits very well with the rule of law? the first point that one has to note is about the rule of law was if you wish to have a series of entitlements that are going to work, you have to build to give notice of what is in some to everybody else so that they can now organize their concept in conformity but that was one of the requirements that we heard. this particular system of negative rights as exactly that kind of characteristic. you didn't have to go up to every individual and say you have to keep your hands do something you can beat anybody, you can't make anybody come you can't steal things. what we say it's a these things are so written in the hearts of man that everybody understands them so that with respect to

this very coherent set of entitlements, the old maximum, ignorant of the law doesn't excuse, becomes a very powerful maxima because you don't believe anybody is ignorant of the law. the moment the systems of entitlement become much more complicated that you need the federal register. nobody puts out a federal register which is keep your hands to yourself, volume two, part two, not necessary. that is not essentially the way in which we organize the system. so you get that first kind of situation. and then the question about this thing is tell me, what happens when you people come in and out of society? if your talk about the kind of relationships in which people of positive obligations to one another, every time somebody comes into the society, you have to ask the question as to whether or not the obligations to care for them only because the people or whether not this guy will be a recipient, or

somebody on who these are going to be imposed with a system of negative rights i'm talking about it is essentially infinitely scalable. it turns out in the way in which it works. that is, once you get beyond the small group where personal relationships are always much more complicated because there are effective guys that bring people together, and start to talk about people who are not hostile to one another but whose only link is citizens or residents come you need to have a rule which is worth as well end hoboken as it does in your city. and the private property rules of forbearance, they scale up very nicely, no matter what the size of the society have come you can keep exactly the same kinds of rules in place. so that's the second kind of virtue you have. the third virtue that you have with this rule is that it is remarkably stable with respect to the way in which it deals with changes amongst members of

society but if you're getting with a system of positive rights, which we have today, and the society, all of a sudden everyone will worry about how much are to cut back medicare benefits, but it's been cut back and why, then you create an immense about of political discourse in bad times and in good because what it is expanding or whether it is contracted, nobody isn't out of anything that remotely looks like a definite slice of that particular by. everything is as we say, put into political solution. with a system of private property rights none of that happens. because it turns out that the duty to forbear is, in fact, one that is perfectly comparable for the rich person as well for the poor person. so you can completely overdue society one where another and discover oil to but not there and then this but not that, and the basic set of legal entitlements remains. you have no idea of what an advantage this turned out to be until you try to put together a set of rules in which all the things we've talked about

before, noticed, skimpily, currency, cannot be observed because you do more complicated set of entitlements. now, the last thing that this thing does is it sets up a framework for contract. the understanding about the classical legal system, what we do a most strange is how this relatively low skill set of obligations. but what we had to do amongst people with whom they wish to trade is to form deeper obligations. the great geniuses, the more complicated society becomes, with respect to most transactions, the bigger the market, the greater the number of choices that you want people to deal with, and if you develop relatively weak public institutions for judicial enforcement, what you can do is not let anyone precisely any other person, group or person ever to form these kinds of private relationships.

so that by keeping the basic norms very simple, it turns out that you facilitate a situation in which you now have very strong contract. what to these norms produce? they produce games for the individual parties were involved in the trade. and by virtue of making those parties, they increase the externality benefits to third party. so that essentially every contract systematically with a well-defined exceptions do with antitrust and the like becomes a complete positive subject. so the whole system of property rights is essentially designed to generate a season mutually reinforce the benefits are all individuals that no system of government entitlements with modern kind we have today, this is not an argument based on a particular tweeting of this or that. it is an argument based on genetic properties. we are not finished because of the next that have to do to understand the way the rule of law works in this particular circumstances, to ask this

question. how do we create a government infrastructure that is necessary to make sure that the entitlement, the property is going to be enforced on the one hand, and that the contracts that people make on the other are going to be enforced as well. the great weaknesses is they do not take it serious as one ought or apply as rigs as one might. the general concerns with collective action problems as they exist in any society. and the issue is how you can structure a system of taxation on the one hand, and eminent domain on the other hand, in order to deal with the necessity of switching his entitlements about one way or another. why do we have to do it? we have to do it because of external threats. that creates the need for public goods. it turns out that no matter how ingenious your private contracts are, the people are in large numbers -- namely, a den society with many individuals makes it easy for you to organize a

competitive market but when you have what is technically known as networks in which its only viable to one person, everybody else is on the particular network, like a system of roads and telecommunications, what i call them long and skinny property rights to the theater but in at that point, when nothing works, at that point you need to have coercion because nimrods the cuts against rather than invade. and the whole system of using natural elements in keeping them in the comment as long you can and allowing particular forms of condemnation to get used for railroad and telephone lines and things of that sort is all an effort to overcome those particular problems. how do you do it? the first thing is you want to make sure that you have a price system which is just because you claim it's a public element that you need, you have to be sure. with the just compensation system does and the tax system is it says if you know that there's this particular kind of financial burden against you, you will not take something that

you didn't have to pay. so compensation is not only way of creating justice after the fact, one individual is singled out for disproportionate burden, and also gives you a set of signals which organizes and structures the way in which government should be used. want you dead in the to worry about how you allocate what we can't technically surplus if you have a group of 100 people, and you take property worth 10,000, equally from everyone of these people, 100 a person or a great something worth who gets it? and all the rules editing with pro rata distribution our innocence and effort to try to stabilize the. people do tend to think of pro rata as a way to make sure people are treated equally and dignity in the world, that it is surely correct but it also has this huge instrumental benefit of stabilizing gains by preventing partisan struggling to create more complicated capital. everybody knows when you start putting together a corporation,

common shares and so forth, one thinks you're worried about is extra procreation of gains. that's what you're trying to replicate. so if you put the system together on both its private and its public component, what you would then say is, if you do it right, with respect to the kinds of props were talking about, you can solve the problem of government by making sure that all of the moves that you have by the voluntary or coercive, are going to be moves that are social improvements. and so, therefore, the only way you can in the. when you relax these constraints and all of a sudden private property becomes arbitrary and the way in which it was time for the government can decide the frequency according to the public interest convenience, when you start to think that positive rights are really important at the negative rights are not, when you think that property rights will include possession but to conclude the

rights of disposition, you create zoning laws and all the other kinds of public situations which result in the kind of discretion to indy and consumes you because there is no particular social game that you can point to which justifies discretion. now, that's the rules part of this thing. what i'm trying to show is private property, you could make the rule of world were produced want to worry about discretion and there are essentially several places in which it comes into play. it's important to note what these are. first one is that certain kinds of questions for which there is no private mechanism that will work at all. going to war with germany in 1941 for japan is not a decision that can be take my people on the left side of the room and rejected by people on the right side. it's not something which involves property in any of its standards. so for these major global executive type decisions you need to have a series of deliberative procedures,

legislative and executive, to make them work it and our constitution -- one of the things you have to be careful about is private property taxation and eminent domain issue don't over claim of what they can do. you have to be able to make room for some form of deliberative democracy for these procedures to work well. getting it out as we know with the war powers act and other stuff is not easy. it's simply something yet to be unaware of at the book itself, no matter how craft, is something you cannot solve. secondly, when you want to initiate certain kinds of grand public initiatives, put a partner or a road there, what you can do is use the prices through the eminent domain system to tell people what the government officials are going to have to pay when they are trying to locate these things. but you can't tell them what kind of system design for this particular mechanism or where to put a. if someone says we want of a four lane highway right to the middle of manhattan, there's nothing about the eminent domain law which will stop them from

doing it so long as they're prepared to do the price. when you start getting more plausible choice, the reason why you have a certain degree of -- is because the benefits and costs a different kind of conflict proposals, that people with common guys work on the right platform will, in fact, always get the right example. to some degree of public administration, taking you to notice can be heard is going to be necessary for that process but it doesn't mean you want to do what they do with the land-use council on the upper west side where everything becomes a publicly. it means genuine to build both a silly to have to have deliberative processes. you must have a system of public administration equal. then third when you start to do with public administration u.s. always recognize the fact that when you bring lawsuits come when you bring criminal prosecution, somebody has to make factual determinations. one my favorite lines that tell myself every morning in the shower is i am a professor of law. i'm not the professor a facts.

what i mean by that is i can play with the elements of murder or, but if jones has killed smith, i cannot tell you my new the two names and location of the death what it was a killing by mouse or killing my self defense. somebody has to put institutions together to do that. the basic of trying to defuse these institutions require that your juries, powerful forms of government administration by professionals to control discretion inside police. one things i stress in the book which i think is extremely important is that they're so very little that extrajudicial control can do to control the problem of discretion. you must have strong civic institution, cultural barriers. i was on a panel with the judge. is a very able judge in the d.c. circuit and he was telling me how much better at dealing with these cases. i said judge, you're right and you're wrong. the cases that get to you treat

very well. but there are hundreds of cases that never get to you because the administrators know that if they want to so something up, when someone says i will see, they say be my guest. so just slow it up in even further. so there's a great difficulty of this is a judicial review is that does nothing with respect to the cases that do not get there in the first place because it's the object of the government regulators to slow things down rather than to speed things up as for somebody new drugs on the market with the fda. so that's essentially what this book is about. i go to other things, talk about basic theories of national rights and utilitarian, how they fit together, to join this i tried to apply to the dodd-frank law and obama health care, affordable care out, some targets are too big to talk about to serious audiences i'm not going to try to deliver what i think to be wrong with this sort of structural nature of these things, but i want to

leave you with and i think i've about set my prepared remarks time, is when you start looking at the current debacle that we have in our current situation, you cannot treat it with the batlike events. like an earthquake or tsunami. what has happened particularly in the last 10, 15 years is that institutions that we are willing to create, that involve extensive use of government power and discretion, that the federal-state and the local level, have all taken the full discretion, we love you government official model, and we've taken a hands-off you, lots of discretion, essentially very few structural change on when which the face of national governments can work, these things, there's no way they'd ever be organized. anybody who thinks we take this particular case our weekend attack with great time from denver to mandate of health care bill and sofa, that we solve the

problem, you're kidding yourselves. what's happened is the basic mistake we have in the united states is that each of these philosophies have talked about earlier, they view of the benevolent government officials, they all are fundamentally wrong. they cannot handle the age-old question of discretion. and the purpose of this book in the short must waste expelled everybody in the universe is wrong except yours truly, thank you. [laughter] [applause] >> well, thank you, professor but we do have time for questions. the regime and and then people come around with microphones spent and state do you are. >> please identify yourself and your affiliation, if any. >> give roger a microphone.

[inaudible] >> i have lots of them. don't try to compound your past mistakes by making new ones on the third of to offset themselves, but to candidly acknowledged, then try to figure out where you do the reversals. under those circumstances where they will cause the least amount of dislocation. so for example, you cannot repeal all existing labor contracts, but you can announce that the national labor relations act hezbollah going to support monopoly capitalism on the part of unions or the manager to benefit from, as some of them do, but as of the expiration of existing contracts they will not apply with respect in your efforts to organize one way or another.

you repeal one section which deals with the immunization of unions from collective associations under the antitrust law, it doesn't cost a lot of money to do that because you're dismantling the system. when you do that the cost of government, administration sources go down. the well for you get start to go. that means the fraction of tax to sustain the system starts to shake which and the amount of money remains in private hands gets larger which means that the rate of government starts to accelerate and you can repeat that over and over again. as i'm looking at the city chicago i've been very active in another one of hopeless causes with a fellow named jim harmon who's been trying to strike down the stabilization system in this particular city getting the supreme court to hear it. a very long shot india, but stabilization is one of these classic and programs that cost a fortune to minister, and it completely makes it impossible to have a rational deployment of unity to greet all sorts of animosity and political intrigue but it takes some kids, particularly those right out of

college and you put three of them are $3500.80 $3500.800 squt apartment and they are the folks in the infant control our intent times as much of a five times as much space and one for the rent, as is adequate write, read control and stabilization doesn't affect everyone under but it turns out it makes a huge different to each good a limit that kind of structure, same sort of situation that you have at the upper level, what you want to do is to things, interaction between the infrastructure on the one hand and private spaces on the other where you put your curb cuts, whether you require to back off street parking but you don't have to have a number things that possibly take place with respect to whether you have a portal housing, accessible housing, and reduced by the city planning commission and so forth. i could knock down the cost of construction, the city of new york by probably 30%, improve the time for construction by 80% reduce the rent simply by rationalizing these kind of

system. you want to try the agricultural system? we still have come we typically have research on the importation of ethanol. if you get rid of the ditch% taxes on food markets, something on here but around the world, it will make a huge difference, doesn't caution a time to get it to do what you have to spea speo worthy senators from the state of iowa whose name shall not be mentioned in polite company because whether delta or republican they tend to not to the world's work of the devil's work in supporting these athletes and is -- says this kind of programs. this is how you have to think about. you have two choices at to where you wish begin. one of them is with the regulation with respect to productive forces of the economy. the other is to try to basically i'm snow the entitlements message associate with social security, medicare, medicaid and so forth. start with a former. what's easier to do in terms of, has much more powerful, and you don't have this terrible

situation of saying to somebody, we know you're seven years of age we know you're but a medicare for longtime but thank you, please go to the market. we know you will save nobody but we don't care. just go away. you can't do the transitions on these kind of programs. was so clear about is the opposition any and all changes of this sort is simply too great. might be a bad is it when it's some kind of constitution work which means that the conservative justices have to believe that their facilities to the constitution, not to the notion of judicial restraint. and liberal judges have to believe they are wrong on every single major premise they have held for the last 70 years to the extent that, not on anything, i'm a small government guy, to the extent that they have a willing descent, very public it is right at whisking on the grounds that they're run by good people, which is essential to go back and read justice stevens opinions on many of these things, he's always

willing to trust this combination of expertise on the one in, and good judgment on the other hand and administered a fish, and no matter how calamitous the outcome of a particular case, even when acknowledged by him, it's always treated as an aberration rather than being a systematic consequence of self-interest. i've never seen one of these defend themselves in public when put to this kind of challenge. the defense mr. issa goes on stare decisis to which -- when he turned to everything else upside down. >> the supreme court decision on obamnicare? >> first of all, let me say just how disinterested im on this particular case. i wrote three breeds in the they're all on the same side. wonton severability, one on the

medicaid, and went on the individual mandate. it's an uphill battle on all three of these particular issues. severability i will put to one side because that is in the unlikely event that they will strike down the mandate. the real question is what he going to do about the mandate and when you going to do about medicaid? the person i wanted it is again biggest limit one considers justice who created most of the intellectual difficulties that it takes over. i'm referring here to chief justice when rehnquist. who wrote the two opinions on which the government hasn't lied most throughout this particular case. when it's infected a lot to be up to four on the conservative side, what -- will, the first one was in a case called -- in 1942, by the government was able to persuade the court to do is to recognize that these elaborate marketing schemes that could only work with nationwide cartels could be organized by

government such that when you feed your own corn to your own cows you are engaged in commerce amongst several city our member talk about that to my wife one day, and we're driving downtown on lakeshore drive and she said when we stop pulling my leg. i'm not an ignoramus. i heard what you said. it can't possibly be that way. it didn't quite disrupt the merits and it did want to get down on painted me and swear when i'm driving the car. it is almost impossible to explain how this thing came to pass to somebody who is just ordinary english link which put you in a terrible disadvantage when you're doing american constitutional law. and what justice rehnquist did in 1995 d.c. said boyd, that is he is really good and i can find something which is not covered by. and that was the country a good city to carry a pistol or a gun within 1000 feet of a school, you're not engaging in not engaged in interstate commerce.

why? because it doesn't influence in any real or appreciable way the quality of goods that are shipped, and to his regular precisely because of this. this was a very big deal. if you'd gone the other way on which you would broken the agriculture cartel which would've been an unavoidable good, unfortunately that justices have decided, jackson came right out of the roosevelt administration when he was attorney general and he was not inclined to strike out a program which he had been influenced when he was attorney general. so we have to do that together question, if you can do that then attacking the medicaid mandate becomes much more easy because now you don't have to argue that you can record everything under the sun which influences the price and quantity of goods in interstate commerce, and pretend that obamacare which is the greatest change in pricing and quality in the history of western civilization doesn't affect us. it's going to be very hard. so the what i wrote my brief was to say this is wrong, don't

extend. the mandate to 16 because everybody acknowledges we've never had afford to buy something before when you do nothing ago. do with intellectual this is a powerful and decide to decision and the theory of regulation? not know. i am perfectly candid to say basically treating this as being the basis of all functional and rational regulation in the first principle what i think is an argument. i think that's where the case will be argued and i think they'll probably lose. if i had to predict, i think 8-1. the order of the justice, the only secure vote against the program is justice thomas. next on the decision tree would not be justice alito. they know to be justice scalia find himself -- they would be justice robert and and justice can be. you don't even get to kennedy and let you get to all the other four guys. i don't think it's going to happen but i think should happen to buy instead -- when you get

to the situation on the medicaid mandate, that's a much harder thing to explain to people. because what we did in effect under this program is to say as follows. if, in fact, you want to get back your medicaid appropriations from a central government, you have to agree to things. one coming up to create to ensure all those people or 100, 138% of the poverty line, technical number, we'll do a lot of money projected there all the cost of administration. if the program goes on just have a larger fraction of this. in other thing you have to agree is not to reform cut down the benefit of existing benefit. what this doesn't affect even with modest stuff is just to square this with a huge state deficits that would not because of pension obligations that are coming through, or which are under state law. if you try to run the numbers

down, what you'll discover in fact that states cannot discharge their essential function because it put in an impossible position. if they decide to reject this, that goes into the federal treasury and spent ever else. then you have to figure out how to of all of the people who don't get medicaid to meet the requirements under the individual mandate, or let them languish in some very impossible position. so you can't do that politically, right? when you do it this way, the additional cost of going to be enormous. then when you want to push it one step further, if the government wants to change it, it's okay, we will not be 90%, it's going to be 80%. we will just raise federal taxes a bit more so that a bigger hammer to hit you over the head with. in effect what happens is by this combination of conditions and taxation, you can widen out the states. that i think is the correct position to take. but again it's just justice

rehnquist coming to the rescue. the question was given the fact that peculiar is relating to the provision amendment of 1912, the federal government, even after the constitution revolution of congress never have the power to regulate production are concerned about called inside the state. so they said it's easy. if you are federal funds, will not give you them entirely and less you raise the minimum wage for everybody in it was not there on the highways, drainage, 21. will take we 5% of your money. the questions whether not this is increasing. justice rehnquist and with the most intellectually disingenuous and bankrupt decisions written history of man said that's not coercion. that's encouragement. [laughter] what's the difference between encouragement and performs? well, he says going to be coercion if we don't get enough.

we'll give you lots of time so you can -- like telling someone we have got you in jail and we will murder you and less we get this information from you but we'll get a lot of time together we to decide. then it's not worth it. wade we can kill the guy. and he says it will take a very small amount. if i would've come up to my friend and said the country had an sick in your wallet, gimme everything you'll, that's coercion. i say jim, i just want 5% of what you earn. that turns out to be encouragement and it's okay. you can't make that line were because it's incumbent. the correct line is it's inducement if, in fact, what i would like to do is something and you will, i'm going to follow the novel nongovernmental president of penny out of my own pocket. at that point it's just a partner. aliso we know is this is a degree of coercion never going to be a tenable line between coercion and interesting.

what you have to do, is a tactic no one will attack that line, so about 5% now is true at 95% as well. so what we have to do is to fight against the south dakota, the goal decision to the government says is just an incursion. this is a voluntary transaction. after all, local you can do under south dakota law. unless you get them out of that frame of mind you will surely lose. if you do get him out of the frame of mind, it's a tricky case to win. because with south dakota, it was a formal strict prohibition against the direct regulation of the consumption or production of alcohol in the state. and to everybody can see the chat to be able to allow the federal government to put some conditions on federal money otherwise we can give you money for medicaid at all. then you have to have another theory as to what conditions are or are not unconstitutional. in order to do that you have to understand the series of how monopoly power can be abused in

a grand situation and you got to do something about the theory, and at that point every constitution lawyers is over and he says i can't understand. we have the new supreme court docket. that is most serious problem you face. this is not an easy argument to make. because leverage argument is an antitrust are extra and emerging areas. but either you make in a particular form or you'll never be able to sort out what conditions are permissible and which ones are not. this one is at least quote unquote germane to the program of running the whole medicaid system so you can say this is a situation where we'll only give you medicaid and if you agree to stop your sponsorship of bullfights within a stay, or something which is clearly unrooted. it's a very, very difficult problem. might you about it is that there are four rocksolid votes on this and the rest of it is for

conservative votes who are by and large intellectually not particularly adventures. one of the things you understand is one of the reasons why i've never argued a case before the supreme court is i did not place -- the standard practice of american constitutional law but every serious supreme court advocate, not these guys are cranks like me, is response to your honor, there's a seamless web of jurisprudence of parallel wisdom out there. we will show you how to square the circle, to reconcile all these so that the miracle of miracles it all comes out my way. that's just not my intellectual style. might be is if it's not coherent i will not say it is coherent and i won't say it before the nine justices. they don't like to hear it. and so you don't get people who want to hire you to go up there and bash them and lets the hope to appear again. so it's a really complicated sort of dynamic and which the

nature of repeat pledge between all these large interest groups, not just those come the large interest groups who have got to be there again and again and again is you don't want to throw live in the eye of the judges are the justices whom they have returned to for relief went on. i'm particularly unsuited for doing that kind of work because, frankly, i can't do it and i think it's important that -- [inaudible] >> what? >> thank you. >> you need somebody to be the rejectionists wing of conventional wisdom. but if you would do that, the price is yet be much more intellectually regress. so that's the goal that you set for yourself. to bring every piece of academic rigor that you can to these positions which turn out to have no friends. the other problem inside the academy is constitutional is especially. i taught at once. i don't teaches as a regular sunday. so people tend to teach,

basically there in this, they don't need -- they don't teach contracts as much but they tend to teach the, longer thing and the subject of nothing. that makes it difficult to go outside of the con law universes as i just said, for example, you have to know a lot about the antitrust law on expert to figure out the condition as apply to medicaid. so it's a very, very tough way, and i hope the amicus brief i wrote, that they will actually read it. then you might have a chance but i think it is a classic case where you can lose with polite argument, or throw hail mary full of grace, and my intellectual style is always go for the end zone. >> one other question.

>> i think the problem with your analysis as you identified, private property in the context of -- doesn't work if the private property is not one -- [inaudible] private property is located in the community. then you don't get to do what you want to do if you own property because that's the expectations of your neighbors and your community may impose or engage on you. you cannot not do -- for example. [inaudible] also you have the issue of restrictive zoning and -- you can't even get rid of your

property the way you want to do it. so my question to you, therefore, is unless you're prepared to say that the private property, to make his own moves or make his own laws, the private property owner has to accept any community that is governed by the rule of law, which he does not make. >> i agree with everything you said, except your characterization of what private property as. and if you remember when i started this talk i said i'm not going to talk very much at this particular time about the way in which you police boundary lines between neighbors with respect to the law of trespass, and more important with respect to the law of nuisance. when i say that i did not mean that i'm against the law of trespass and i'm against the law of nuisance. what i meant by that was that's a part of the analysis which is critical, but it's not the part of the analysis that i wanted to talk about. so how do you start to figure out what goes on? the first thing you do is a system by successive

proclamations are to try to figure out in each particular case, if you to people who own plan and there is a boundary line between, say determined by data, which set of restrictions on the conduct will work to their mutual advantage. you have to be able to do this conceptually because they're too many people with too many neighbors for you to do this through voluntary transactions. so we go over any social functions in exactly the way you said. the key phrase has always been to preserve life, liberties of nature -- of neighbors. is to figure out that no one person has parity overnight. and the reason you do that is that you don't eliminate that degree of freedom in the way in which you put this together, then in effect a number of choices that you have is to who can do what becomes infinite, and everybody will go to the government and play their special position. so the light constraint or the equal protection to mention of this which is always been in every theory is the first

principle of stabilization with respect to it. in the second question that we have to have is given that we stabilize the situation, which actions do we want, such a red areas with high probability that if they were mutually imposed, both parties to the transactions would regard themselves as better. so the life liberties essential have to be organized in a fashion that each of the restrictions that you create will, in fact, produce improvement, and for these purposes i could demonstrate but just take it from me that if you can make it work in a boundary dispute between two parties, the generalization to in part is something that's relatively easy to accomplish. so for example, if i can't trespass it is my neighbor to the less, if i 50 neighbors to the north, south and east, the same goes with respect to all. so the first thing that we've done is we don't say that anyone has a rule and doing so. we now have at least this one constraint. nuisance is a much harder to do with. but there's a perfectly good reason why they're hard to do

with. it's because the variation within the class is enormous that a uniform treatment of each and every case in the class will lead to very bad result but i have a very long paper on this, which took me a very long time to work out because one of the sort of transitional papers in my own thinking, trying to figure out how the transactional trans barriers to voluntary arrangement meant that you organize things. ..

>> but of course, you like fish commend you do exactly what you think. what happens is you develop a situation where you have very little level of reciprocal nuisances. what you do is create an exemption of the live and let live, my compensation is the ability to have a light liberty to do it against you. the limiting principle is what i thought to be disproportionate with respect to my neighbor is that i can be joined for the extra. this case is essentially the background condition. it turns out to be low-level

interferences. large amounts of this stuff is doing this. the man who develop developed this is a man named barry brown. he was really the only libertarian who is very consistent. there was a case that anticipated the standard of social welfare that was developed by [inaudible name]. he said there is no such thing as the public. the public is a composition of all the individuals. if i adopt a general rule, which is comprised of everyone, is it a reflective way? close to it. that's exactly what he's thinking. and you you have to go on the other sites. the question is, can i do whatever i want to my land regardless of the consequences? so long as there is no physical invasion? the answer is presumptively yes, but absolutely not. so what are the exemption's?

i will give you two of the famous ones. all which was developed during this time has to do with the institution of lateral support. there was a man named jeff huber, who had the duty of lateral support who said that you are owing me the same duty that i give to you, perfect representative. it is just not, in that particular case, a serious problem. and the question is what happens when you start to create symmetry? one person wants to have a situation where the lateral supporting claim is not only for his land come up before a building to put on top of the land. at that point, you cannot use the old rule. at what you do is encourage

strategic behavior. the person who builds first will in effect now restrict the light liberty to someone else. so that the correct rule which has been followed, jethro got it right on the money, they say in effect that what you must do if you wish to cut down a building where the other fellow has land, is give him reasonable notice, 30 or 60 days, or whatever, you have to give him a chance to mitigate. that is reciprocal. once you see that happen, the next thing that will happen is the guy who has the building -- those are the only predictions you're going to get. he knows it can cost them a fortune. so either he will buy or covet a support or remove the land away from this so he doesn't have to worry about this in some way shape or form. what happens is you take perfectly efficient solutions. the second arrangement is that people want privacy and people are worried about that. essentially what happened is

that there was a famous case called right out and knocks. what they said in effect is you will start getting into trouble if the legislature wants to start putting restrictions. the correct answer is that at 60 you basically just have all the privacy because there are very few people. one of the developments of the law is that you are not allowed to build that high. but if you build higher than that, and it is obscuring light, the state can sort of restrict it mutually for the joint gains of both parties. you get these rules coming in there. the most part, the people do have a hazy sense of what it is about. what is so interesting about it is that every one of the statues

against upheld makes not libertarian rules of values, they may be average reciprocity general for overall parties. there is a recent case dealing with an environmental statute that justice scalia did not understand. he got the right -- wrong result. essentially what they did is manage to devise a statute which allowed to control erosion on the beach. all landowners were to a high degree of probability -- that, of course, is before we knew how this thing played out. the typical one is a statute, for example, i worked on a case where the supreme court of the state of michigan thought it was perfectly obvious that the state could declare a wetland in a bunch of mud puddles left from a

series of cranes and drilling operations and holds the cup filled with dirty water, so that when they declared it a wetland, no one could build on that site. no compensation was offered. so what happens is you have to buy land outside the city, and you are back to the circus. what is the purpose of coven's? it is essentially to create through voluntary arrangements improve our land owning. that gets you your community stuff. the place where covenants become extremely important as where you oppose them on developments organized by a single individuation -- two rules

apply. first, when you put these things on and declare it as a plan, the time at which you buy a plot of land does not determine the rights of duty that you have against anybody else. so you get rid of timing and there is this strategic variable in the decision. it makes sales much more rational because he did the same thing regardless of what you buy. second, since you have a single building in posting this, you could make price suggestions with respect to each element. they would only implement those things that would support social and development. you look at the standards of new york and chicago or any other city, they found every one of these tests. there are essentially rules that say that you can't go on the side of the street or that side of the street. is that enough? >> i think that's enough.

we have run out of time. [applause] [applause] >> we would like to hear from you. tweak us your feedback. twitter.com,/"book tv." in his new book, rodney king recalls his beating on the los angeles streets in 1991. mr. king talked about his own legal problems and alcohol addiction since then, as well as the acquittal of police officers in the case. on tuesday, rodney king speaks at the schaumburg center for research in black culture in new york city. "book tv" will bring you this event online. at 630 eastern, go to "book tv".org and click the watch button under the events and featured programs. you can also check our television schedule at booktv.org of air times of this event. >> we want to introduce you to mattew staver here at liberty

university where he is a vice president, dean of the law school, and a professor as well, and director of the liberty center. can you give us an overview of liberty university? >> is the largest christian university in the world. it has over 1200 students and 80,000 online students. we are at around 92,000 students and will soon be over 100,000 students a year. it is one of the fastest growing universities in the world. it combines residential students as well as online. it is a school that has both undergraduate and graduate and law school -- we are opening up a medical school the school, film, and arts.

>> since doctor falwell's death in 2007, who has been the head of the school? >> there is a general counsel him a doctored followers chancellor, one of the unique neat things about the transition is that someone wondered what would happen to liberty university went on transcends doctor falwell was such a prominent person. jerry fowler junior took the reins of the university, the school has continued to grow at an exponential rate. it has expanded with additional schools and additional programs. our buildings have increase and expansion since then. school that has about 6500 acres of property. we have a lot of room to grow. what are your concerns as the

dean about online college? >> certainly, the concern of anyone with regards to online is to make sure that it is as regulars as a residential program. one of unique things about an online program is that you are able to get experienced individuals in all areas of life, that otherwise would not be full-time teachers because they are ceos of corporations or business leaders or they are in various kinds of fields is a entrepreneur. and they don't want to teach full-time. they will be able to be top-level experts that can teach online. we give them the opportunity to have interaction. we are very rigorous to make sure that there is parity and rigor. we have to because of our we have to because of our crediting anyway, but we want to make sure that it maintains a high level of quality. we met when he say that liberty

is a christian university, what does that mean to you? >> doctor falwell said that if it's christian, it ought to be better. we believe in jesus christ as our lord and savior. that permeates everything that we do. we want to make sure that all that we do glorified lord. we want to make sure that in everything that we do, that we do it not with mediocrity, not second best, but we want to do it the best. liberty may surprise people, but it has been the number-one debate team in the country for the last decade. the only school that has been ranked the best in all ranking systems. we have achieved that multiple times. the law school started in 2004 that it obtained provisional accreditation during 18 months, which is faster than any other school in history. in fact, you cannot beat that record. you cannot have an accreditation and the quicker than that. some of her achievements as 2004 are phenomenal, in terms of the

competition. we are very competitive. we just won the national court competition in constitutional law. we have one the entertainment law competition negotiation opposition two years in a row. you could go on and on. for us, it means the expression of our faith. it also means excellence. >> we invited you on the tv to talk about your book, "eternal vigilance: knowing and protecting your religious freedom." i also think that we have more religious freedom than people oftentimes realize. that was the point of the book. sometimes our religious freedom, and more often than not, is lost because of people who are in authority, not knowing that the freedom is, for example, in the public school. >> someone might think that they have to purge the school of any kind of religious