i said i wasn't going to read, but i'll be the first sentence of article iii of the constitution, which says, judicial power of the united states shall be vested in one supreme court and in such inferior courts as the congress from time to time ordain and establish and that's kind of day. article iii goes on and talks a bit about the jurisdiction of the court and so on, but many, many unanswered questions including, for instance, no mention of the chief justice in article iii. the only inferred that they're supposed to be a chief justice because he's given in article article ii, the right to preside over not the right, the duty to preside over the impeachment trial and the senate of the president of the united states.

and remember rehnquist did that in the bill clinton impeachment trial when he was later asked what had amounted to, he said i did nothing in particular and i did it very well. the duties of the chief justice or undefined. in much about supreme court initially was undefined. so it really had to create itself and its done so not in a straight line progression, but it's done so true it's cases. the cases that in the early years has to decide because it is very little discussion over what they hear in the cases these years that it chooses to decide. and even that was a choice by the supreme court. most appellate courts today in this country have to take what comes. and so they act sort of as

courts to review, courts of appeal, courts of error correction. that was the supreme court's initial feet or so it seemed. but william howard taft, the capstone after his presidency was becoming chief justice of the united states and he says this up and thought the court would greatly benefit from the ability to write his own ticket, create its own docket, not have to take every case it came along. so under his leadership, his urging congress passed in 1929 what is known as the judges bill and gave the court we have the supreme court access illegal

agenda for the country. >> in his new book on the rodney king recounts his life following the bd recorder and it is beating by los angeles police. mr. king talks about his own legal problems and alcohol addiction since then as well as the acquittal of four police officers in the case which led to rioting and los angeles. on tuesday, rodney king speaks in harlem, new york city. booktv will bring you the event live online at 630 eastern go to booktv.org and click the watch button under the events in future programs. also check television schedule of tv.org for air times of the event. annan but tv, richard epstein argues for return to a smaller, more accountable federal government that operates on

clear rules and limits itself in domestic affairs. this is about an hour. [applause] >> is a couple seats up in the front. the all remind me of the first-year students who only ever come sit on the front of the room. going once, going twice. thank you so much. anyhow, it's a great pleasure to be here and talk about this little book. i should say it's a prelude to a bigger book i'm working on, which has at its modest objective trying to give a comprehensive account of the three major constitutional issue from the time of the founding of the president and i hope to be back with that one in a year or so. it's almost done. but look, there's no point in being modest about these proposals. you might as well try to do your very best. if you're going to fail, you should fill in a grand way.

the greatest sin of an academic is insignificant, so i would rather be mightily wrong they narrowly write. last night in terms of the way in which i go. i'd much prefer to be broadly right rather than probably wrong. and i'm a loudspeaker in the academic academics i stuck to several people before i set my constitutional duties and i said i don't think there's a single major constitutional academic who is subscribed to a basic framework. so i think that's something about the power of your persuasion. but one of the things you can say about my views as they have no responsibility because they've had no influence in the current state of affairs. and when you start to do this it's really quite striking because what i did when i've tried to position the spoken intellectual universe is to contrast with other works that have come out.

unwanted these kinds of works? well, there's very married important legal scholars who were populist in origin and believed we the people, not we the course are to decide everything. former strength and the dean, laurie kramer simon who was in that particular tradition. sandy levin said that the university of texas basically argues for a jeffersonian constitution that you have five every year for every 20 years for 700 individuals, none of whom know what they're talking about. except for where the hotel entrances may be. then they're other people who say if you really understand originally sent us a completely dynamic subject so when you can do serious series of artful convention takes a classical liberal constitution to convert into a modern progressive one which vastly increases the scope of government power. then you have the conservative judicial springtime and their central principle interpretation to take broad causes and reagan

narrowly, lest you make sure the court has a significant role to take a minute in the way in which the legislature should operate because everybody understands national solutions require national problems and this is at a time when congress has a general approval rate of 11%. [laughter] severities powerful antipodes. i'm a purpose for which this audience is uniquely suited to be sympathetic for. so if i can carry the day here i put up a tent and go home. so the title of the book, designed for liberty is designed to do this. in order to solve a particular problem, you had to be look to identify 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 to engage in the kinds of

behaviors which will essentially destroy the very people whom it is intended to protect. a descriptive political account of how governments are formed to come up with a conclusion that is the exceptional society that survives, most of them in one form or another breakdown into discord revolution and strive and may have periods of relative peace will be punctuated by periods of serious disasters. entire places in the room were no coherent form of government is ever emerged in the united states which constitutes a tiny percentage of the rest populations in the western democracies are major exceptions to those particular rules. internal governance structures differ in many ways of course. so the question is can the can you figure what the common elements are that they seem to understand at least one time have understood and see if you can put these things into a boat. to start with, the problem then

is how you control political discussion. it must be bad enough to allow central government to be discharged. cannot be so broad to allow one faction of the company or the nation to simply run roughshod to the affair. you have to give the government and constrain the government once again said. and i think the great writers so understood this as a social problem. we says i think in their general interpretation and are not attentive to the various mechanisms that may be used to achieve that aim. in private property and vote for so start for a second what the rule of law. if you want to make an account and take a definition that you yourself did not invent for the occasion.

the best of these definitions is written by a man who never used the phrase, perhaps the greatest of american legal think there's in retrospect, a man named attribute made major jurisprudence contracts also for defines it as a series of procedural virtues, which i kinds of things everyone regardless of political persuasion will accept. these are no bias and termination and charges given against you and impartial judges to individuals who administers the particular charges and try and find although you'll find these are useless impediments to the social justice as basic operated by machetes and worse.

if the useless template. it's a riot good as most were not the basic structure and system of entitlements as we have it, but rather to how it is that she make the grade administrators today were. and four was not trained to rail against the new deal tradition or progressive tradition, not a particular classical liberal. he thought all these virtues that he had could coexist with respect to any substance schema for conservative tampered on this particular access. i view his ultimate it turns out that his failure. if you start to create the wrong side of entitlements, the right set of procedures will not be of the savior. so you then have to figure out that as a definitional matter which will persuade no one, but an analytical matter how it is the time the system of property

to the rule of law in a way that two of them function better and essentially i think what you can show fairly easily so it won't dwell upon it as if you have a system of private property and a series of disputes involving trespass and breach of contracts and so forth, if you don't have the structures of the rule of law to enforce with respect to their treatment, and will never be a bigger car society. they're extremely appropriate because the judicial system of the legislative system when i given the kinds of protections are more sensitive than need. but a sea of a relationship much are difficult, which is figure out why it is that when you want to keep the rule of the been the long run, you need to have the system of private property. in order to do that come to be useful to give some kind of definition is to a private property is an do so in a way, which i think is not designed to make it some kind of mystical

and referential subject, the descriptive common sense most of the influence cannot respect at this topic i'm the only american law professor i'm aware of his first-quarter mosque overspent exclusively studying roman law and had a very powerful influence on the way in which i start to think. so what is the definition of private property? if certain kinds of private property. you start with land, start with catalyst, animals and roman times you have this awkward thing known as slavery you had to include in the system. but put it aside for these purposes and concentrate on property to endure. personally dr. jennifer to raise subject to property and that's generally not going to be too

difficult except perhaps the land we have balance in time as the appropriate definitions for what it is. then you're trying to figure out what is the private property impose with respect to everybody else in the universe to call blackstone's famous phrase. essentially what you understand this if you want to create a system of private property which gives one individual at the exclusive right of access to a particular thing from the right to use it as he sees fit and the right to dispose of it in whole or in parts whether individuals, which you have to do is create a system in which it turns out that one person by taking possession is now entitled to find the rest of the world and the issue is by d. let them do that? because the alternative keeps everything in account and this actually makes it impossible to get any form of coherence to vote. every legal system into the world keeps things in common which are not subject to development. under the classical system.

the private property which has to be utilized in her to be especially valuable is put under these rules. at the first thing to note about isn't the relationship of private property has to its owner. it's always relationship to the rest of the world. ..

now why is it that this particular system fits very well with the rule of law? the first .1 has to know of the rule of law is if you wish to have a series of entitlements that are going to work coming to have to be able to give notice of what those are to everybody else so that they can now organized in conformity with the law. that is one of the requirements that we heard. this system of the - frank has exactly that kind of characteristic. you do not have to go up to everybody individually and say you have to keep your hands to yourself you can't beat of anybody and steal things. we say these things are written that everybody understands them so that with respect to this very coherent set of entitlements, the monetary and ignorance of the law doesn't

excuse becomes a tree powerful macs and because you don't believe anybody is ignorant of the the system they become more complicated and the federal registry. nobody puts out a federal registry that has title one keep your hands to yourself part to cut unnecessary. the dissent essentially the way in which we organize. so you get that kind of situation. then the question about this thing is coming. tell me what happens when the people come in and out of the society. if you are talking about the kind of relationship in which people have obligations to one another, to feed them and care for them and close them every time somebody comes into the society, you have to ask the question as to whether or not the obligation is to care for all of the existing people or whether or not this guy is going to be a recipient for the particular benefits and questioned or somebody on whom the duties are going to be imposed. the system of - rights that i'm talking about it is infinitely scalable and it turns out in the way in which it works.

that is once you get beyond the small group when the personal relationships are always much more complicated because there are effective ties that bring people together and start to talk about people that are not hostile to one another but is only linked to the citizen residence you need to have a rule that works as well as it does and new york city and reverse. the private property rules of forbearance, the scale up very nicely. no matter what the size of the society you have coming you can keep exactly the same kind of rules in place. so that's the second kind of virtue that you have to read 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 in the members of society. if you are dealing with a system of positive rights which we have today and the society gets poor, all of a sudden everybody is going to worry about how you have to cut back medicare

benefits and why and create an immense amount of political discord in bad times and good, because it is expanding or contracting nobody is entitled to anything that remotely looks like a definite slice of that particular type. everything is, as we said, put in to political solutions. with a system of private property rights, none of that actually happens. because it turns out that the duty to furbearer is in fact one that is constant for the rich person as well as the poor person, you can completely over to the society one way or another to the squealed to the to discover it is this but not that and the basic set of entitlement remains with respect to the rules in question. you have no idea what an advantage of this turns out to be until you try to to to get they're a set of rules in which all the things the was talked of a before, noted the scale of devotee cannot be observed because we have a more complicated set of entitlements. now the last thing that this thing does is set up the framework for contracts.

the classical legal system what we do among strangers is have a relatively low skill set of obligations. but we have to among the people we wish to trade as to form deeper obligations that we can specify with various kind of agreements, subject to the constraints like fraga that i don't want to talk about very much here. the great genius is as follows. the more complicated the society becomes with respect to most transactions, the greater the number of trees is that you have and with a weak institution enforcement what you can do is let any person and a group of persons to form these kind of relationships so that by keeping the basic gerberding norms very simple into which you now have very strong and deep contracts. what do these produce?

to produce gains for the individual parties involved. and by virtue of making those parties better off, the increase the externality benefits so that essentially every contract systematically understood with well defined exceptions becomes positive someday and a. the property rights is essentially designed to generate the series of mutually enforceable benefits for all individuals that no system of government entitlements of the modern kind that we have today can hope to have. this is an argument based on the particular tweaking of the event. it is an argument based on genetic properties that count. now we are not finished because the next thing you have to do to understand the wait will fall works in this particular circumstance is to ask this question how to create the government infrastructure that is necessary to make sure that title met and the property are going to be enforced on the one hand, and that the contracts people decide to make on the

other. the weakness of the standard libertarian theory is they do not take it as seriously as one of or might. the general concerns with collective action problems as they exist in any society. the issue is how you then structure the issue of taxation on the one hand and eminent domain on the other hand in order to deal with the necessity of pushing these entitlements about one way or another. now, why did we have to do it we have to do it because of the external threats and that creates an equal good. it turns out that no matter how ingenious your private contractors are, the people and large numbers create difficulties under certain sets namely the society with many individuals makes it easy for you to organize the competitive markets but you have technically known networks in which it's only valuable to 1% as anybody else on that particular network like a system of roads to

telecommunications wildlife along in this property right you do get anybody and at that point where nothing works at that point you need to have conversion because it cuts against you rather than in favor of you. and the whole system of using natural elements and keeping them as long as you can and allowing the particular forms of condemnation to get the railroads and telephone lines and things of that sort is all an effort to overcome those particular problems. how do you then do it? the first thing is you want to make sure you have a system that says because you claim it is a public element that you need, you have to be sure. and with the just compensation system does in the tax system is if you know there's a particular type of financial burden against you you will not take something if you have to pay it. so if you understand compensation not only as a way of creating justice after the fact so that one individual is and single for a disproportionate burden it also

gives a set of signals which organizes and structures the way in which the government forces should be used. once you've done that you have to realize how you allocate what we call the surplus. if you have a group of 100 people and take property worth 10,000 from every one of these people and create something worth 15,000 who gets the gain? all the rules are doing is building up the distributions and destabilize that. people here tend to think it is the means of fairness and they are surely correct but it also has huge instrumental benefits of stabilizing gains by as a partisan struggles to create more complicated business structures and everybody knows when you start putting together a corporation, the common shares and so forth one of the things you're worried about in the preparation of gains and as we

try to replicate in the public sphere. when you put the system together on both the private and public component is doing right with respect to the kind of problems we are talking about we can solve the problem of government you have the voluntary or the coercive are going to be moved and produce social the improvements so therefore the only way that you can move is up. when you relax these constraints, and all laws in the private property becomes arbitrary in the way in which it was assigned to the government can assign a frequency according to the public interest convenience and necessity from the 1934 to the communications act when you start to think that the positive regard important in the - rights are not when you think they include the rights for the disposition you create those owning a laws of all the other kind of public situations which results in the kind of discretion that in the and consumes you because there is no

particular social gain that you can point to. that is the rule part of this thing. what i am trying to show is start with private property you can make it work. you still have to worry about discretion and there are essentially several places at which it comes into play and it's important to know what these are. first there are questions for which there is no private mechanism that will work at all. going to war with germany in 1941 or japan isn't a decision that can be taken people on the left side of the room and rejected by people on the right side. it's not something that involves property in any of its devices and so for these major global executive types of decisions, you need to have a series of collaborative procedures, a legislative and executive to make the market the constitution there's a good but highly imperfect job at trying to handle them. one of the things you have to be careful about when you defend a system of private property, taxation and eminent domain is the you don't over claim on what

they can do. you have to be able to make room for some form of the liberal democracy for the procedures to work well. as we know if the war powers act other stuff isn't easy. it's not the topic of this book but simply something you have to be aware of the book itself no matter how pressed it is something you cannot solve. second, when you to initiate certain grand public initiatives, put a park or a road here what you can do is use the prices for the eminent domain system that all people with the government officials are going to have to pay when they try to locate these things but you can't tell them what kind of system tuzee is linus mechanism or where to put it so if someone says we want to have a four-lane highway in the middle of manhattan there's nothing about the eminent domain law that would stop them from doing that so long as they are prepared to pay the price then when you start getting more plausible choice is the reason why you would have a certain degree of political economy dispute is because the benefits and costs of the different

complex proposals are never certain that people with common values work on the right platform will affect always get the right example some degree of public administration can take the ring and notice of different points of view is going to be necessary for that. doesn't mean that you want to do what they do with the land use council on the upper west side everything becomes a public good. it means genuinely you build public facilities and have to have the process sees as he must have a system of public administration equal to the challenge. and then third, when you're starting to deal of public administration you must always recognize the fact when you bring the losses and criminal prosecution somebody has to make factual determination. one of my favorite lines i tell myself every morning in the shower is i am a professor of law. i'm not a professor of the fact. but i mean by that is i can tell you what the elements of murder are but it jones tells me i cannot tell you by knowing the names and locations whether it was a killing by malice or

self-defense and somebody has to put the institutions together to do that. the basic view to diffuse the institution requires that you have injuries and the power of the state and powerful forms of the administration by professionals that controlled the discretion power. one of the things i stress in the book that is important is that there's only very little that externals and judicial control can do to control problem of discretion. you must have strong institutions and barriers to prevent them. i was on a panel with the judge and he knows down in the d.c. circuit telling me how much better they had been dealing with these cases. i said a judge, you are right and wrong. the cases that you get are very well but there are hundreds of cases that never get to you because the administrators know that if they want to slow something up when somebody says i will sue you they say be my

guest. so the great difficulty in the system is judicial review it does nothing with respect to the cases that don't get there in the first place because it is the object of the government regulated to slow things down rather than speed things up for example getting new drugs on the market where they have created many road block efforts so that is essentially what this book is about. i go through other things talking up the basic theory of natural rights, how they fit together. to join on this i try to apply to the obama health care protection and affordable care act. some targets are good to talk about in the series is audiences and so i'm not going to try to be labor what i think would be wrong with these structural decisions of these things but i want to leave you with and i think i have out state my remarks time when you start looking at the current debacle that we have in our current situation, you cannot treat it

as bad luck not like an earthquake or tsunami has done. what's happened in the last ten or 15 years is that the institutions that are willing to create that involve extensive use of government power and discretion of the federal, state and local level have all taken the full discretion we love you government officials model in which the courts take in general a hands-off view. property rights, lots of discretion, essentially very few structural changes on the way in which the states of the national government could work. there's no way that they could ever be organized. anybody that thinks of this particular case or the individual mandate and the health care bill and so forth that we solve the problem you are kidding yourself. what happens is the basic mistake we have in the united states each of the philosophies i talked about earlier, the

populace are the sort of expansive view of the government officials by people who. they all are fundamentally wrong and cannot handle the discussion and the purpose of the book in the short and modest way is to explain why every would be in the universe except for yours truly. fto. [laughter] [applause] >> thank you, professor. we do have time for questions. so, raise your hand and people will come around with a microphone. >> state who you are. >> please identify yourself and your affiliation if any. >> give roger the microphones. >> aside from, have you gotten

anything in the prescription to remedy? benet i have lots of things for prescriptions. they are don't try to compound your past mistakes by making new ones on the coffee areas to respect themselves but that candidly they try to figure out where to do the reversals. under those circumstances where they have the least amount of dislocation. so, for an example, you cannot repeal all existing labor contracts but you can announce the national labor relations act is no longer going to support the monopoly capitalism on the part of the unions are the managers to benefit them as some of them do. as the expiration of the existing contracts they will not be renewed with respect to any to organize to repeal section six of the act which deals with the immunization of the collective associations under the antitrust law. it doesn't cost a lot of money to do that because you are dismantling the system.

when you do that the cost of the administration starts to go down at the wealth you start to get goes up and the taxes you need to sustain the system starts to shrink which means the amount of money that remains in private hands gets larger which means the rate of government starts to accelerate and you can repeat that over and over again. looking at the city of chicago i've been active in one of my hopeless causes with a fellow trying to strike down the stabilization system in this particular city getting the supreme court. it's a very long shot indeed but they wanted these programs that cost a fortune to administer and it completely mixed impossible to have a rational deployment of the union that creates all sorts of animosities and political intrigue and those coming right out of college and you take three of them for $3,500 an apartment and other folks are sitting there in the rent control the arrangement urning ten times as much having five times as much space for

one-third of the rent and somebody says quite right the stabilization doesn't affect every unit that is technically under it but it turns out that all but makes a huge difference. if you could eliminate that type of structure the same sort of situation that you have that the other level. the interaction between the infrastructure on the one hand and private space on the other, where you put your kutz that require people to have all street parking the you certainly don't want to have the number of things that constantly take place with respect to whether we have affordable housing, access of housing used by the city planning commission and so forth, i can't find the course to distract the city of new york by probably 30% by probably 80% and produce and simply by rationalizing these kind of systems. want to trade agricultural system? we still have -- we've kept the restrictions on the importation of ethanol and if you get rid of the 50% tax it is going to ease up the market not only here but

around the world it will help it doesn't cost a dime if you can get you have to speak to the were the senators from the state of iowa whose name shall not be mentioned in polite company because whether democrat or republican they tend to do not the lord's work but the devil's work supporting these senseless types of programs. where you wish to begin one of them is the deregulation with respect to the productive forces of the economy, and the other is to try to basically unsnarl the entitlement of the associated with the social security medicare, medicaid and so forth. it's much easier to do in terms of the effect has much more power and you don't have a terrible situation saying to somebody well, we know that you are 79 years of age and you've been on medicare for a long time but please go to the market. we know you save money but we don't care, go right ahead.

it's the opposition to any change of the sort is too great. it would need some constitutional work which means the conservative justices have to believe the facility is for the constitution and the text not the notion of the judicial restraint in the liberal judges have to believe they are wrong on every single major promise that they've held for the last 70 years to the extent not on everything, remember from a small government guy, federal power and so forth a very complicated regulatory scheme on the grounds that they are run by good people, which is essentially a few go back and read justice stevens opinions on many of these things she is always willing to trust the combination of expertise on the one hand and good judgment on the of your hand and administrative officials and no matter how calamitous the outcome in a particular case even acknowledged by him it is

always treated as an aberration rather than being a systematic consequence of self-interest. i've never seen one of these actually defend themselves in public when put to this kind of challenge. it's the slightest way in 1935 and entered a finger pumps upside down -- letcher digit ingalls upside down. spike the supreme court decision on obamacare. >> first let me say how disinterested i am on this particular case. i wrote three briefs. they were all on the same side. one on medicaid and one on the individual mandate and it's an uphill battle on all three of these particular issues. several ability i will put to the one side because that

assumes the event they will strike down the mandate. the real question is what to do about the mandate and what are you going to do about medicaid. the first thing i would want to do is take a slam at one conservative justice who created most of the intellectual difficulty that it takes to overcome and i am referring here to the chief justice william rehnquist who wrote the opinions on which the government has relied most throughout this particular case. there's a lot to be atoned for the conservative side it's one of these mistakes. welcome the first one is in the case in 1942. what the government was able to persuade the court to do is recognize the marketing schemes that could only work with nationwide cartels could be organized by the governors such that when you feed your own corn to your own cowles you are engaged in the commerce among several states. i remember talking about that to

my wife one day driving down town on lake shore drive and she said will you stop pulling my leg is i've heard what you said. it can't possibly be that way. why are you pulling it over me and it didn't disrupt the marriage and i didn't want to get on bended knee and swear when i'm driving a car but was almost impossible to explain how this came to pass. somebody that knew the language put to the terrible disadvantage the case called united states against lopez in 1995 that decision is really good and i can find something that isn't covered by it and that was the gun-free act that set to carry a fiscal or down within a bouncing seat in the school you are not engaged in commerce. it doesn't influence any real or appreciable way as the quantity of goods that were shipped in the state commerce and the wheat was regulated precisely because it did both. this is a very big deal. if you had gone the other way

you would have broken the agricultural cartel established in the adjustment act which would have been good unfortunately the justice decided jackson came right of the roosevelt of ministration and he wasn't inclined to strike down a program implemented when he was in fact the attorney general. they had to do that. the other question -- saddam if you could do that attacking the medicaid mandate becomes much easier because now you don't have to argue. you could regulate everything that is the price and quantity and the goods and pretend that obamacare, which is the greatest change in the price and quantity of the history of western civilization. it's very hard to win and the way i wrote my brief is to say this is wrong don't extend it and the mandate does extend because of repealed, but as we've never had an order to buy something before when we've done nothing at all. dividing intellectually this is a powerful and decisive decision

in the theory of a regulation? not at all and i'm candid to say that. basically treating this as being the basis of all functional and rational regulation in the first principle way is a losing argument and that is the way the case is to be argued and we will probably lose that. eight rutka one is the most likely estimate that could be 7-3 or six -- the order of the justice, the only secured against the program as next on the decision would probably be justice alito and then the third is going to be justice scalia who is defined himself as the fainthearted our original list and then justice roberts and then justice kennedy. you don't even get to kennedy unless you can get to the others. don't think it's right to happen. it should have in place of arguments which are widely ignored by of reveals arguing the case. when you get to the situation on the medicaid mandate it is a harder thing to explain to

people because what we did under this program is to say as follows. if in fact you want to get back your medicaid appropriations from the government, you have to agree to things to read you have to agree to ensure all this be aware of 100 to 138% of the poverty line or pay a lot of the money that you have to bear all the cost of the administration and as the program goes on they have to have a larger fraction of this and then the other thing you have to read is not to reform with the cut down of the benefits of the existing recipients. what this does in effect even with modest stuff is you have to square this with the huge state deficit you now have to because the pension obligations coming from all of which invested in the state law. if you bring the numbers outflow they're put in an impossible position. if they decide to reject this voluntary deal he it goes into

the federal treasury spend every brawls and then you have to figure out how to help all the people who don't get medicaid and meet the requirements under the individual mandate or let them languish in some very possible positions. so you can't do that politically then when you do it this way the additional costs are going to be enormous and when you want to push it one step further if the government wants to change this they can say we are not going to be 90 present its gandy 80%. we're going to raise the federal taxes so a bigger hammer to hit you over the head with and there's a combination of the conditions and taxation you can wipe out the independent entity and that is the correct position to take but it is justice rehnquist coming to the rescue of the government silicates in south dakota and so forth which the question was given the

peculiarities related to the revolution the federal government even after the constitution on congress never had the power to regulate the production or the consumption so they said it's easy to read you want federal funds? we are not going to give you them entirely unless you raise the minimum wage for its repeal the state whether or not they are on the highways, the drinking age, 21. and if you don't we will take 5% of your money. the question is whether this is encouragement. justice rehnquist is one of the most disingenuous pinker at decisions written in the history of man but that isn't conversion , that encouragement. what's the difference between encouragement and performance? well he says it's going to be coercion if we don't give you notice we will give you lots of time. it's like telling someone we've got you in jail and we are going to murder you unless we get the information from you but we are going to give you lots of time

to decide. then he says only taking a very small amount. so if i were to come up to my friend and say put a gun to your head give me your wallet and everything you own this conversion. i said i just want 5% of what you have. that turns out to be an inducement and encouragement in itself. [laughter] you can't make that work because it is incoherent. the correct line is it his endorsement. what i would like you to do, and i'm going to follow the non-governmental pena out of my own pocket to get it and at that point is just a bargain. there may become strands of a monopoly which we are not going to talk about but at least what we know is the degree of which coercion is never going to give you a tenable line between encouragement and when you have to do is attacked. nobody will attack so the 5% now under state law president and the federal court precedent it's true with 95% as well so what we

have to do is fight against the south dakota decision and the government seems to stress the encouragement it is a transaction after all with what you can do unless you get them out of the frame of mind you will shortly use. if you get them out of the frame of mind it's a tricky case to win because with south dakota was a strict prohibition against the director consumption or the production of all colin the state's and hear everybody can see that you have to be able to allow the federal government to put some conditions on the federal money otherwise we can't give you money for medicaid and also then you have to have another theory as to what they are or they are not constitutional and in order to do that you have to understand how the monopoly power can be a duty to abuse in the current situation and something of a leveraged the texas and antitrust law and dingley is over and say i can't understand this and so we of the new

supreme court i have to think about it for more than a minute it's too hard to understand so there for the issue is constitutional. that is the serious problem you face. this is not an easy argument to make. because leveraged arguments and antitrust are extremely murky areas but if you make in that particular form or you will never be able to sort out which conditions are permissible and which ones are not. you can give obvious cases but this one is at least, quote on quote, germane to the program of running the whole medicaid system so you can see that this is a situation where we will only give you the medicaid money if you agree to stop your sponsorship within the state. something of assault which is clearly a malaise. as it is a very difficult problem to win this thing. there are the liberal vote on this thing and then the rest of it is the for conservative votes who are by and large intellectually not particularly if interest. one of the things you understand is one of the reasons why i've never argued a case before the

supreme court decided not play an inside vote in the constitutional role. every supreme court advocate not these guys it is as follows. there is a web of jurisprudence of and we will show you how to square the circle to reconcile all of these presidents so the medical miracles all comes out my way. and that isn't my intellectual. if it isn't clear yet i will not say that it is coherent and i will not say. they don't like hearing that. so, you don't get people who want to hire you, as they hope never to appear again. and that is a really complicated sort of dynamic in which the nature between all these large interest groups not just the lawyers but the larger interest groups that have to be there again and again and again is you don't want to for what the

justices who may have to turn to relief later on. so there's a kind of law with amplitude type of situation, and i am pursuing for doing that kind of work because frankly i can't do it and i think it's important. >> thank you. >> welcome i mean, you need at least somebody to be in the rejection swing of the conventional wisdom. but if you are going to do that, the price you have to pay is you have to be much more intellectually rigorous than anybody else willing to play, so that is the goal you set for yourself to bring every piece of the academic rigor that you can to these positions that turn out to have no friends and the problem inside of the academy i taught him once. i don't teach this as a regular subject. people tend to teach it. they are in this culture and they don't teach contracts much or intellectual property. they teach the common law and

that makes it difficult to go outside of the universe to say as i just said for example. you have to know what about the antitrust law to figure out the constitutional convention as a poised to medicaid. as it is a very tough way, and i felt that the elkus briefs i wrote with a fellow named mario who works the texas public policy foundation but they are very good but they will actually have a chance. i think that it is a classic case where you can lose with polite our demands or throw a hilly area. my intellectual style was to always go. >> i have michael over here. please identify yourself. [inaudible] >> thank you. >> i michael meyers the executive director of the civil rights coalition. i think the problem as you announced, identified as the

private property in the context of the rule of law hasn't worked at the private property is not major because it is located in communities. if it's a community than you don't get to do what you want to do with your own property because the expectations of your neighbors and communities may impose obligations on you. you can't not do certain things to decrease the value of my property for example and regulations etc.. but also, you have the issue of the zoning you can't even get rid of your property so my question to you is unless you are prepared to say the private property can meet its own rules

to provide the poverty of the owner has to exist in the community that is governed by the rule of law which he does not make. estimate i agree with everything use it except the characterization of what the private property is. if you remember when i started the top price of i'm not going to talk dirty much of this particular time about the way in which you placed the lines between the neighbors with respect to the wall of trespassing and more importantly when i said that i didn't mean i'm against the law of trespassing or of nuisance. what i meant by that is that that is a part of the analysis which is critical but it's not part of the analysis that i want to talk about your. so, how do you start to talk about what goes on? the first thing you do this by the excess of approximation. you try to figure out in each particular case if you have to people that own land and there's a boundary line between them say determined by the title watch restrictions on their conduct would work to their mutual love

vintage? you have to be able to do this conceptually because to many people may do this through voluntary transactions. so it is already a social function in exactly the we've said. the freeze has been to preserve the liberty of neighbors which means the first restraint that you had which works in most but not all all cases is that figure out if no one has pretty over and over and if you don't eliminate the way that to put the system together, then it affects the number of choices that you have as to who can do what becomes infinite and everybody will go to the government to plead for a special position. so, the contract with equal protection dimension which has always been in every theory is the first principal of stabilization with respect. the second question that we have to ask is given that we stabilize this attrition, which actions to we want to restrict

such what we have a reasonably high probability that a mutually and post both parties of the transactions would regard themselves as better to bit so the life liberty essentially is to be organized in a fashion that each of the restrictions the you create will in fact produce greater improvement and for these purposes i could demonstrate or take it with me that if you could make it work in the boundary disputes between the two parties, the generalization to end the party's relatively easy to accomplish. as a comfortable, if i can't trust us against my neighbor to the west, if i have 15 neighbors to the north, south and east the same goes with respect to the law. so the first thing we've done is we don't see anybody has a ruler to himself. we have at least this one constraint. and since is harder to deal with it is a perfectly good reason why they are. it's because the in for treatment of each and every case in the class would lead to very bad results. i have a very long paper on this

with 49 in case you're interested in reading it which took me a very long time to work out and it's one of the sort of transitional papers in my own thinking, tried to figure out how the transaction all barriers to the voluntary arrangements meant that you organize. so very briefly, we start with a simple case. there are the nuisances which are very much like trespassing. i have a factory and i have a san and what i do is return - on and i take every piece from inside of my factory and i put over on your land. we treat this as though it is a trespassed substantial interference and the fear is if we do this nobody can schmutz up everybody else and it's a first approximation that goes. but then what you have to do with malaise or anything else asked to contact allies. suppose what we do now is make the move simultaneously. the first is that we shrink the amount of commissions that come we're no longer talking about the huge factory we're talking

of a barbecue pit in which every week i managed to take my hand workers and baliles them but you never crossed the way you do not like hamburgers but you like fishing to the same. you then develop a situation where you have very low level reciprocal moves in this. when you do is create an exemption under the so-called live and let live rule so you can commit this small invasion against me and my compensation is the ability to have the life and liberty to do it against you and the principle is that when i start to be disproportionate with respect to my neighbor then in effect on can be enjoying, so in the case essentially the background condition isn't zero interferences it is with trespassing but it turns out to be low level interference. so large amounts of this stuff is doing this and demand that developed this is the only real consistent libertarian and he said so in connection with a series of the formulations of

the case which anticipated cannot accurately but close enough for the working purposes the standards of the social welfare that were developed 30 years later. he says it is in effect, composition of all the other individuals and that by adopted the general rule which is complied to be the gain in effect of the ways a bit of relaxation is district boundary conditions creates an air improvement. that is why he was thinking. then you have to go on the other side. the question is can i do whatever i want my land regardless of the consequences that happens to yours. it's presumptively is absolutely not so is the exemptions. i will give you two of the same all of which develop and the purpose of the industry position between 1960 and 1901. verso to the lateral support. essentially the world of the

developed in the case, a birmingham against one of the great justices of the 19th century who was the master of the law was the duty of lateral support so that i cannot live on my land of your souls and and you go the same duty to become a perfect reciprocity. because essentially giving up the ability to build on the boundary line if you do it both of us would regard ourselves in that particular rule and it generalizes from the cases, so it isn't in that particular case what happens if you start to create a symmetry so that some person wants to have is a duration of the lateral support he claims is an only for his land but for a building that you put on top of the land and at that point you cannot use the old rule because than what you do is to encourage the strategic behavior. the person who builds will in effect now restrict the life and liberty of somebody else, so the correct role that has been followed and god knows how he did it about right on the money

you say in effect what you must do is wish to cut down a building where the other fellow has landed and is given reasonable notice, 30, 60 days, but ever since he can move to shore up his building after which, so you have to give him a chance to mitigate but he will not go beyond that and that is reciprocal. once you see that happen, the next thing that's going to happen is the guy that has the building to put on, the only protection he's going to get gino's it is going to cost him a fortune to either he will buy a covenant support or remove the land away from the board so he doesn't have to worry about the press this in some way, shape or form. so what happens is it is a perfectly efficient solution. the second arrangement and so forth is that people want privacy and people are worried about light being blocked out. what happened is that the cooperation they reached and the famous case in the united states which is the opinion from 1989, with this opinion said in effect is that it's okay to build that to 60 but you can't go any

higher because then you start getting into trouble if the legislature says that there's a restriction didn't get the right but the correct answer is at 6 feet you basically have all the privacy resolved because there can be very few people, and one of the implicit norms that develops into the privacy which not accidentally developed in this time is that you are not about to peer over the fences from public spaces under the similar forms of reciprocity. but if you build it higher than that it's not protecting privacy but its obscuring light, so that particular point the state can sort of restricted mutually for the gains of both parties. so, you get these rules coming in there and for the most part, the people do have a hazy sense of what it is about. what is so interesting is that every one of the statutes that gets upheld me it's not libertarian rules of boundaries or absolute no exception. they meet the reciprocity generalized over all parties. for those of you that no there's a recent case dealing with an

environmental statute justice scalia did not understand he's got the right and wrong result in a there was so confused but the essentially what they did is they managed to devise a statute which will allow you to control such that when you have all the benefits and burdens of the statute all of the landowners are to a high degree of probability in the position that is before we know how this played out better off than before there is no modern antitrust law, environmental statute or a really aggressive part that has that few the typical one is the butt and statute for the supply work on the case and the supreme court of michigan father was obvious the state could declare the wetland of the drilling operations left holes that got filled up with dirty water.

what happens is you want to build on the land you have to buy some outside to mitigate the and you are called buck off to the surface. what is the purpose? the purpose is the voluntary of arrangements and improvements over what the standard of all of the nuisance gives and its undercover with respect. it generally doesn't work for the people that own discreet land to the amount. a the justifications doesn't replicate what is found instead of the voluntary to achieve and that gives you your communities and the place where it becomes extremely important is when you impose them on the development organized by a single individual it doesn't matter because the tools apply. one is that when you put these things on to declare the plant, the time at which you by the plot doesn't determine the rights and duties that you have against anybody else so you get

rid of the timing is a variable purchase decision which makes the sales rational because you get the same thing regardless where you buy it. you can make the price adjustments with respect to each element such that it will only impose those things that create social improvement with respect to the rest of the development of the covenants turns out to be a bushel. you get any of the standards new york or chicago or any other major city operation they flunk every one of these tests. there is initially anti-competitive devices which is designed to say if i could build a walgreen's on the west side of the street you can't build a wal-mart on the right side of the street. >> i think that's enough. we've run out of time. [applause]

my journey into the black panther party started before i become a painter. what i would like to do is just read a little passage from the book and then show how i happened to walk into the office and how that changed my life. this is chapter 3 of the book and it's called finding the pamphlet player. i walk into the office in brooklyn of september 1968. with a minute. when a minute. i meant to save the best for last but not until the end of the program. is the chairman here? the founder of the black panther party is in the house. please come and stand up. [applause] i started reading and i was like

you didn't mean to do that at the end of the program, you wanted people to know that he was in the house, and that he will get his chance and the q&a to talk to chairman bobby as well. i walked into office in brooklyn in september, 1968. dr. king had been assassinated in april of that year. riots and ander played in the ghetto is around the country. on the street the ship was about to hit the fan. black power was the phrase of the day and heating was the right thing to do. from street corners beaches to the campus rallies, he'd been gone from being the man to being the beast. young black students were trading their feel-good motown records for the record of speeches of malcolm x and the pingree jazz recordings of coleman. i went to 125th street in harlem that might that dr. king was assassinated. protesters arrived to score on the streets clashing the

overturned cars sitting trash can to lawyers in the bricks of the businesses. one of the windows was shattered by an airborne trash can. looters ran into the store and started taking clothes, appliances and whatever else they could carry. not everyone looted. in fact, most of the crowd continued to chant the king is dead and a black power but it was enough for them to start swinging clubs and making arrests. a cop grabbed me and threw me against the wall. before he could handcuff me and put me into the wagon a group of writers across the street turned a police car over. the cop told me to stay put and ran towards the right. i was scared. but i wasn't stupid. i took off running in the opposite direction. i blended in with a group and tried to to get out which way to go. a group of copps headed towards us. some of them ran into a clothing

store the was being looted. i followed. the cops were swinging clubs and making arrests. my heart pounded as they ran into the back of the store and found a back door leading to an alley. i gasped for air as i ran down an alley and was stopped by a wooden fence. the cop came into the alley. he yelled put your hands up. in my mind, i froze, put my hands in the air and turned around to face the cops with tears in my eyes. but my body cut hauling ass. i flew over the top like a scared eqecat. two shots rang out. once planted blood on the fence and this gave me this year adrenalin push i need it to fly over the fence and pick myself up off the ground and scramble out of the alley. when i turn out onto the street i kept running past others that tried to grab me. but i went away, turning the corner i almost collided with a group of 20 or so black men in leather coats and fatigue

jackets wearing berets standing on the corner in military formation. stop running, younger brother, one of the man with glasses said don't give these an excuse to run you down. i doubled over trying to catch my breath. i didn't know this man. but his voice sounded like confidence in a sea of chaos. moments later the copps ran around the corner. they stopped in their tracks when they saw the militant man. the closed ranks around me. what are you doing your one of them demanded, moved aside. the black man with glasses didn't flinch. we are exercising our constitutional right to freedom of assembly making sure that no innocent people get killed out here tonight. we are chasing looters, the cop reported. there are no leaders here. as you can see, we are a disciplined community patrol. you have guns, the cop asked with a fear in his voice. that's what you said, the man

with tinted glasses replied. i said we were exercising our constitutional rights. the cops to come to side in the discipline of the group for a moment and walked away. by the time i caught my breath, i was speechless. but by that time i caught my breath that i was speechless from what i had just seen. a black man standing down the cops. go straight home, the man with the tinted glasses said. the pigs are looking for any excuse to murder black folks tonight. but then the black men walked on. i scooted down to the subway and headed home. when i entered the apartment, grandma was sitting on the couch watching images of dr. king on tv. tears fell from her eyes. she didn't even ask where i had been, which was unusual since i was about two hours late getting home. i sat next to her, put my arm around her coming and we watched tv reports of the assassination and the riots.

i came to school the next day -- before that, i just want to see a little bit about nooney who was adopted mother to the lie was conceived in to buy and my mother was a graduate student, and broke up with my father and came home and announced to my grandmother that she was pregnant that she had broken up with the guy. my grandmother pressed a little bit more about who the father was. and when she found out that he was a young revolutionary who was hanging around with the likes of fidel and raul castro mom got put on the first plane smoking to new york city. and in cuba she had been a devotees of and a graduate student, and she was on her way to become a doctor but when she showed up in new york city issue was a young black woman who couldn't speak english, she spoke spanish and she spoke french. and then a friend told her about a loving the place where they took foster kids, so she was

there for what she thought would be a temporary stay but it wound up being my early childhood and my adolescent home. nooney, grand mosque in baltimore took the and when they were quite old. and their parents and their older brothers and sisters had been slaves so i grew up hearing stories about an america and south where you didn't look a white person in the i.e. if you're black coming down the street. in fact they were on the sidewalk, you got into the gutter. no matter if it was raining, if it was muddy, how old you were, the site will be want to them. i heard about ku klux klan and lin chang and jim crow as first-person reports. the assault across burning and lost relatives to the lynching. with that though, they were working class people. nooney worked as a domestic. paul baltimore worked as a labor worker and they had been garvey

sites in the 20's. they joined the naacp, and i was active in the naacp council. i was an honor student and the choir, had a sense of what was going on and collected food to sent to the civil rights workers in the south who were disturbing that stuff to the communities. when i was about 12-years-old it was just me and nooney said it was me wanting to be a man, and then dr. king got killed and i was enraged and angry. the day after this i went to school and on the fringes on television you would see soviet carmichael and huey newton and the news described as the black militants and the black power. i went back up to talk about power because all of my lessons

in black history i don't want you to think that was over the dinner table with books spread out. he was a working man and he was a good man and what they called in those days a race man, said he would be as simple as we would be watching television, the old black-and-white tv and a tarzan and movie would come on in the spring across the screen during the tarzan yell and the elephants would go here and the monkeys would go here and the power would be looking at and after about five minutes she would go like what the hell is that? [laughter] tell me how with the help a little cracker baby can fall out boy, change the channel. [laughter] it was living history. then i would switch and i remember this the first time seeing the young harry reasoner and he was giving senator rangel, which