Podcast appearances and mentions of Stephen Breyer

Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here.Yesterday, Southern California Edison (SCE), the utility whose power lines may have started the devastating Eaton Fire, announced its Wildfire Recovery Compensation Program. Under the program, people affected by the fire can receive hundreds of thousands or even millions of dollars in compensation, in a matter of months rather than years—but in exchange, they must give up their right to sue.It should come as no surprise that SCE, in designing the program, sought the help of Kenneth Feinberg. For more than 40 years, often in the wake of tragedy or disaster, Feinberg has helped mediate and resolve seemingly intractable crises. He's most well-known for how he and his colleague Camille Biros designed and administered the September 11th Victim Compensation Fund. But he has worked on many other headline-making matters over the years, including the Agent Orange product liability litigation, the Deepwater Horizon Oil Spill Trust, the multidistrict litigation involving Monsanto's Roundup weed killer—and now, of course, the Eaton Fire.How did Ken develop such a fascinating and unique practice? What is the most difficult aspect of administering these giant compensation funds? Do these funds represent the wave of the future, as an alternative to (increasingly expensive) litigation? Having just turned 80, does he have any plans to retire?Last week, I had the pleasure of interviewing Ken—the day after his 80th birthday—and we covered all these topics. The result is what I found to be one of the most moving conversations I've ever had on this podcast.Thanks to Ken Feinberg for joining me—and, of course, for his many years of service as America's go-to mediator in times of crisis.Show Notes:* Kenneth Feinberg bio, Wikipedia* Kenneth Feinberg profile, Chambers and Partners* L.A. Fire Victims Face a Choice, by Jill Cowan for The New York TimesPrefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.Sponsored by:NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com.Three quick notes about this transcript. First, it has been cleaned up from the audio in ways that don't alter substance—e.g., by deleting verbal filler or adding a word here or there to clarify meaning. Second, my interviewee has not reviewed this transcript, and any errors are mine. Third, because of length constraints, this newsletter may be truncated in email; to view the entire post, simply click on “View entire message” in your email app.David Lat: Welcome to the Original Jurisdiction podcast. I'm your host, David Lat, author of a Substack newsletter about law and the legal profession also named Original Jurisdiction, which you can read and subscribe to at davidlat.substack.com. You're listening to the eighty-fourth episode of this podcast, recorded on Friday, October 24.Thanks to this podcast's sponsor, NexFirm. NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com. Want to know who the guest will be for the next Original Jurisdiction podcast? Follow NexFirm on LinkedIn for a preview.I like to think that I've produced some good podcast episodes over the past three-plus years, but I feel that this latest one is a standout. I'm hard-pressed to think of an interview that was more emotionally affecting to me than what you're about to hear.Kenneth Feinberg is a leading figure in the world of mediation and alternative dispute resolution. He is most well-known for having served as special master of the U.S. government's September 11th Victim Compensation Fund—and for me, as someone who was in New York City on September 11, I found his discussion of that work profoundly moving. But he has handled many major matters over the years, such as the Agent Orange product liability litigation to the BP Deepwater Horizon Disaster Victim Compensation Fund. And he's working right now on a matter that's in the headlines: the California wildfires. Ken has been hired by Southern California Edison to help design a compensation program for victims of the 2025 Eaton fire. Ken has written about his fascinating work in two books: What Is Life Worth?: The Unprecedented Effort to Compensate the Victims of 9/11 and Who Gets What: Fair Compensation after Tragedy and Financial Upheaval. Without further ado, here's my conversation with Ken Feinberg.Ken, thank you so much for joining me.Ken Feinberg: Thank you very much; it's an honor to be here.DL: We are recording this shortly after your 80th birthday, so happy birthday!KF: Thank you very much.DL: Let's go back to your birth; let's start at the beginning. You grew up in Massachusetts, I believe.KF: That's right: Brockton, Massachusetts, about 20 miles south of Boston.DL: Your parents weren't lawyers. Tell us about what they did.KF: My parents were blue-collar workers from Massachusetts, second-generation immigrants. My father ran a wholesale tire distributorship, my mother was a bookkeeper, and we grew up in the 1940s and ‘50s, even the early ‘60s, in a town where there was great optimism, a very vibrant Jewish community, three different synagogues, a very optimistic time in American history—post-World War II, pre-Vietnam, and a time when communitarianism, working together to advance the collective good, was a prominent characteristic of Brockton, and most of the country, during the time that I was in elementary school and high school in Brockton.DL: Did the time in which you grow up shape or influence your decision to go into law?KF: Yes. More than law—the time growing up had a great impact on my decision to give back to the community from which I came. You've got to remember, when I was a teenager, the president of the United States was John F. Kennedy, and I'll never forget because it had a tremendous impact on me—President Kennedy reminding everybody that public service is a noble undertaking, government is not a dirty word, and especially his famous quote (or one of his many quotes), “Every individual can make a difference.” I never forgot that, and it had a personal impact on me and has had an impact on me throughout my life. [Ed. note: The quotation generally attributed to JFK is, “One person can make a difference, and everyone should try.” Whether he actually said these exact words is unclear, but it's certainly consistent with many other sentiments he expressed throughout his life.]DL: When you went to college at the University of Massachusetts Amherst, what did you study?KF: I studied history and political science. I was very interested in how individuals over the centuries change history, the theory of historians that great individuals articulate history and drive it in a certain direction—for good, like President Kennedy or Abraham Lincoln or George Washington, or for ill, like Adolf Hitler or Mussolini. And so it was history that I really delved into in my undergraduate years.DL: What led you then to turn to law school?KF: I always enjoyed acting on the stage—theater, comedies, musicals, dramas—and at the University of Massachusetts, I did quite a bit of that. In my senior year, I anticipated going to drama school at Yale, or some other academic master's program in theater. My father gave me very good advice. He said, “Ken, most actors end up waiting on restaurant tables in Manhattan, waiting for a big break that never comes. Why don't you turn your skills on the stage to a career in the courtroom, in litigation, talking to juries and convincing judges?” That was very sound advice from my father, and I ended up attending NYU Law School and having a career in the law.DL: Yes—and you recount that story in your book, and I just love that. It's really interesting to hear what parents think of our careers. But anyway, you did very well in law school, you were on the law review, and then your first job out of law school was something that we might expect out of someone who did well in law school.KF: Yes. I was a law clerk to the chief judge of New York State, Stanley Fuld, a very famous state jurist, and he had his chambers in New York City. For one week, every six or seven weeks, we would go to the state capitol in Albany to hear cases, and it was Judge Fuld who was my transition from law school to the practice of law.DL: I view clerking as a form of government service—and then you continued in service after that.KF: That's right. Remembering what my father had suggested, I then turned my attention to the courtroom and became an assistant United States attorney, a federal prosecutor, in New York City. I served as a prosecutor and as a trial lawyer for a little over three years. And then I had a wonderful opportunity to go to work for Senator Ted Kennedy on the Senate Judiciary Committee in Washington and stayed with him for about five years.DL: You talk about this also in your books—you worked on a pretty diverse range of issues for the senator, right?KF: That's right. For the first three years I worked on his staff on the Senate Judiciary Committee, with some excellent colleagues—soon-to-be Supreme Court justice Stephen Breyer was with me, noted litigator David Boies was in the office—and for the first three years, it was law-related issues. Then in 1978, Senator Kennedy asked me to be his chief of staff, and once I went over and became his chief of staff, the issues of course mushroomed. He was running for president, so there were issues of education, health, international relations—a wide diversity of issues, very broad-based.DL: I recall that you didn't love the chief of staff's duties.KF: No. Operations or administration was not my priority. I loved substance, issues—whatever the issues were, trying to work out legislative compromises, trying to give back something in the way of legislation to the people. And internal operations and administration, I quickly discovered, was not my forte. It was not something that excited me.DL: Although it's interesting: what you are most well-known for is overseeing and administering these large funds and compensating victims of these horrific tragedies, and there's a huge amount of administration involved in that.KF: Yes, but I'm a very good delegator. In fact, if you look at the track record of my career in designing and administering these programs—9/11 or the Deepwater Horizon oil spill or the Patriots' Day Marathon bombings in Boston—I was indeed fortunate in all of those matters to have at my side, for over 40 years, Camille Biros. She's not a lawyer, but she's the nation's expert on designing, administering, and operating these programs, and as you delve into what I've done and haven't done, her expertise has been invaluable.DL: I would call Camille your secret weapon, except she's not secret. She's been profiled in The New York Times, and she's a well-known figure in her own right.KF: That is correct. She was just in the last few months named one of the 50 Women Over 50 that have had such an impact in the country—that list by Forbes that comes out every year. She's prominently featured in that magazine.DL: Shifting back to your career, where did you go after your time in the Senate?KF: I opened up a Washington office for a prominent New York law firm, and for the next decade or more, that was the center of my professional activity.DL: So that was Kaye Scholer, now Arnold & Porter Kaye Scholer. What led you to go from your career in the public sector, where you spent a number of your years right out of law school, into so-called Biglaw?KF: Practicality and financial considerations. I had worked for over a decade in public service. I now had a wife, I had three young children, and it was time to give them financial security. And “Biglaw,” as you put it—Biglaw in Washington was lucrative, and it was something that gave me a financial base from which I could try and expand my different interests professionally. And that was the reason that for about 12 years I was in private practice for a major firm, Kaye Scholer.DL: And then tell us what happened next.KF: A great lesson in not planning too far ahead. In 1984, I got a call from a former clerk of Judge Fuld whom I knew from the clerk network: Judge Jack Weinstein, a nationally recognized jurist from Brooklyn, the Eastern District, and a federal judge. He had on his docket the Vietnam veterans' Agent Orange class action.You may recall that there were about 250,000 Vietnam veterans who came home claiming illness or injury or death due to the herbicide Agent Orange, which had been dropped by the U.S. Air Force in Vietnam to burn the foliage and vegetation where the Viet Cong enemy might be hiding. Those Vietnam veterans came home suffering terrible diseases, including cancer and chloracne (a sort of acne on the skin), and they brought a lawsuit. Judge Weinstein had the case. Weinstein realized that if that case went to trial, it could be 10 years before there'd be a result, with appeals and all of that.So he appointed me as mediator, called the “special master,” whose job it was to try and settle the case, all as a mediator. Well, after eight weeks of trying, we were successful. There was a master settlement totaling about $250 million—at the time, one of the largest tort verdicts in history. And that one case, front-page news around the nation, set me on a different track. Instead of remaining a Washington lawyer involved in regulatory and legislative matters, I became a mediator, an individual retained by the courts or by the parties to help resolve a case. And that was the beginning. That one Agent Orange case transformed my entire professional career and moved me in a different direction completely.DL: So you knew the late Judge Weinstein through Fuld alumni circles. What background did you have in mediation already, before you handled this gigantic case?KF: None. I told Judge Weinstein, “Judge, I never took a course in mediation at law school (there wasn't one then), and I don't know anything about bringing the parties together, trying to get them to settle.” He said, “I know you. I know your background. I've followed your career. You worked for Senator Kennedy. You are the perfect person.” And until the day I die, I'm beholden to Judge Weinstein for having faith in me to take this on.DL: And over the years, you actually worked on a number of matters at the request of Judge Weinstein.KF: A dozen. I worked on tobacco cases, on asbestos cases, on drug and medical device cases. I even worked for Judge Weinstein mediating the closing of the Shoreham nuclear plant on Long Island. I handled a wide range of cases where he called on me to act as his court-appointed mediator to resolve cases on his docket.DL: You've carved out a very unique and fascinating niche within the law, and I'm guessing that most people who meet you nowadays know who you are. But say you're in a foreign country or something, and some total stranger is chatting with you and asks what you do for a living. What would you say?KF: I would say I'm a lawyer, and I specialize in dispute resolution. It might be mediation, it might be arbitration, or it might even be negotiation, where somebody asks me to negotiate on their behalf. So I just tell people there is a growing field of law in the United States called ADR—alternative dispute resolution—and that it is, as you say, David, my niche, my focus when called upon.DL: And I think it's fair to say that you're one of the founding people in this field or early pioneers—or I don't know how you would describe it.KF: I think that's right. When I began with Agent Orange, there was no mediation to speak of. It certainly wasn't institutionalized; it wasn't streamlined. Today, in 2025, the American Bar Association has a special section on alternative dispute resolution, it's taught in every law school in the United States, there are thousands of mediators and arbitrators, and it's become a major leg in law school of different disciplines and specialties.DL: One question I often ask my guests is, “What is the matter you are most proud of?” Another question I often ask my guests is, “What is the hardest matter you've ever had to deal with?” Another question I often ask my guests is, “What is the matter that you're most well-known for?” And I feel in your case, the same matter is responsive to all three of those questions.KF: That's correct. The most difficult, the most challenging, the most rewarding matter, the one that's given me the most exposure, was the federal September 11 Victim Compensation Fund of 2001, when I was appointed by President George W. Bush and Attorney General John Ashcroft to implement, design, and administer a very unique federal law that had been enacted right after 9/11.DL: I got chills as you were just even stating that, very factually, because I was in New York on 9/11, and a lot of us remember the trauma and difficulty of that time. And you basically had to live with that and talk to hundreds, even thousands, of people—survivors, family members—for almost three years. And you did it pro bono. So let me ask you this: what were you thinking?KF: What triggered my interest was the law itself. Thirteen days after the attacks, Congress passed this law, unique in American history, setting up a no-fault administrator compensation system. Don't go to court. Those who volunteer—families of the dead, those who were physically injured at the World Trade Center or the Pentagon—you can voluntarily seek compensation from a taxpayer-funded law. Now, if you don't want it, you don't have to go. It's a voluntary program.The key will be whether the special master or the administrator will be able to convince people that it is a better avenue to pursue than a long, delayed, uncertain lawsuit. And based on my previous experience for the last 15 years, starting with Agent Orange and asbestos and these other tragedies, I volunteered. I went to Senator Kennedy and said, “What about this?” He said, “Leave it to me.” He called President Bush. He knew Attorney General John Ashcroft, who was his former colleague in the U.S. Senate, and he had great admiration for Senator Ashcroft. And so I was invited by the attorney general for an interview, and I told him I was interested. I told him I would only do it pro bono. You can't get paid for a job like this; it's patriotism. And he said, “Go for it.” And he turned out to be my biggest, strongest ally during the 33 months of the program.DL: Are you the managing partner of a boutique or midsize firm? If so, you know that your most important job is attracting and retaining top talent. It's not easy, especially if your benefits don't match up well with those of Biglaw firms or if your HR process feels “small time.” NexFirm has created an onboarding and benefits experience that rivals an Am Law 100 firm, so you can compete for the best talent at a price your firm can afford. Want to learn more? Contact NexFirm at 212-292-1002 or email betterbenefits@nexfirm.com.You talk about this in your books: you were recommended by a very prominent Democratic politician, and the administration at the time was Republican. George W. Bush was president, and John Ashcroft was the attorney general. Why wouldn't they have picked a Republican for this project?KF: Very good question. Senator Kennedy told both of them, “You better be careful here. This is a very, very uncertain program, with taxpayer money used to pay only certain victims. This could be a disaster. And you would be well-advised to pick someone who is not a prominent friend of yours, who is not perceived as just a Republican arm of the Justice Department or the White House. And I've got the perfect person. You couldn't pick a more opposite politician than my former chief of staff, Ken Feinberg. But look at what he's done.” And I think to Senator Kennedy's credit, and certainly to President Bush and to John Ashcroft's, they selected me.DL: As you would expect with a program of this size and complexity, there was controversy and certainly criticism over the years. But overall, looking back, I think people regard it widely as a huge success. Do you have a sense or an estimate of what percentage of people in the position to accept settlements through the program did that, rather than litigate? Because in accepting funds from the program, they did waive their right to bring all sorts of lawsuits.KF: That's correct. If you look at the statistics, if the statistics are a barometer of success, 5,300 applicants were eligible, because of death—about 2,950, somewhere in there—and the remaining claims were for physical injury. Of the 5,300, 97 percent voluntarily accepted the compensation. Only 94 people, 3 percent, opted out, and they all settled their cases five years later. There was never a trial on who was responsible in the law for 9/11. So if statistics are an indication—and I think they are a good indication—the program was a stunning success in accomplishing Congress's objective, which was diverting people voluntarily out of the court system.DL: Absolutely. And that's just a striking statistic. It was really successful in getting funds to families that needed it. They had lost breadwinners; they had lost loved ones. It was hugely successful, and it did not take a decade, as some of these cases involving just thousands of victims often do.I was struck by one thing you just said. You mentioned there was really no trial. And in reading your accounts of your work on this, it seemed almost like people viewed talking to you and your colleagues, Camille and others on this—I think they almost viewed that as their opportunity to be heard, since there wasn't a trial where they would get to testify.KF: That's correct. The primary reason for the success of the 9/11 Fund, and a valuable lesson for me thereafter, was this: give victims the opportunity to be heard, not only in public town-hall meetings where collectively people can vent, but in private, with doors closed. It's just the victim and Feinberg or his designee, Camille. We were the face of the government here. You can't get a meeting with the secretary of defense or the attorney general, the head of the Department of Justice. What you can get is an opportunity behind closed doors to express your anger, your frustration, your disappointment, your sense of uncertainty, with the government official responsible for cutting the checks. And that had an enormous difference in assuring the success of the program.DL: What would you say was the hardest aspect of your work on the Fund?KF: The hardest part of the 9/11 Fund, which I'll never recover from, was not calculating the value of a life. Judges and juries do that every day, David, in every court, in New Jersey and 49 other states. That is not a difficult assignment. What would the victim have earned over a work life? Add something for pain and suffering and emotional distress, and there's your check.The hardest part in any of these funds, starting with 9/11—the most difficult aspect, the challenge—is empathy, and your willingness to sit for over 900 separate hearings, me alone with family members or victims, to hear what they want to tell you, and to make that meeting, from their perspective, worthwhile and constructive. That's the hard part.DL: Did you find it sometimes difficult to remain emotionally composed? Or did you, after a while, develop a sort of thick skin?KF: You remain composed. You are a professional. You have a job to do, for the president of the United States. You can't start wailing and crying in the presence of somebody who was also wailing and crying, so you have to compose yourself. But I tell people who say, “Could I do what you did?” I say, “Sure. There are plenty of people in this country that can do what I did—if you can brace yourself for the emotional trauma that comes with meeting with victim after victim after victim and hearing their stories, which are...” You can't make them up. They're so heart-wrenching and so tragic.I'll give you one example. A lady came to see me, 26 years old, sobbing—one of hundreds of people I met with. “Mr. Feinberg, I lost my husband. He was a fireman at the World Trade Center. He died on 9/11. And he left me with our two children, six and four. Now, Mr. Feinberg, you've calculated and told me I'm going to receive $2.4 million, tax-free, from this 9/11 Fund. I want it in 30 days.”I said to Mrs. Jones, “This is public, taxpayer money. We have to go down to the U.S. Treasury. They've got to cut the checks; they've got to dot all the i's and cross all the t's. It may be 60 days or 90 days, but you'll get your money.”“No. Thirty days.”I said, “Mrs. Jones, why do you need the money in 30 days?”She said, “Why? I'll tell you why, Mr. Feinberg. I have terminal cancer. I have 10 weeks to live. My husband was going to survive me and take care of our two children. Now they're going to be orphans. I have got to get this money, find a guardian, make sure the money's safe, prepare for the kids' schooling. I don't have a lot of time. I need your help.”Well, we ran down to the U.S. Treasury and helped process the check in record time. We got her the money in 30 days—and eight weeks later, she died. Now when you hear story after story like this, you get some indication of the emotional pressure that builds and is debilitating, frankly. And we managed to get through it.DL: Wow. I got a little choked up just even hearing you tell that. Wow—I really don't know what to say.When you were working on the 9/11 Fund, did you have time for any other matters, or was this pretty much exclusively what you were working on for the 33 months?KF: Professionally, it was exclusive. Now what I did was, I stayed in my law firm, so I had a living. Other people in the firm were generating income for the firm; I wasn't on the dole. But it was exclusive. During the day, you are swamped with these individual requests, decisions that have to be made, checks that have to be cut. At night, I escaped: opera, orchestral concerts, chamber music, art museums—the height of civilization. During the day, in the depths of horror of civilization; at night, an escape, an opportunity to just enjoy the benefits of civilization. You better have a loving family, as I did, that stands behind you—because you never get over it, really.DL: That's such an important lesson, to actually have that time—because if you wanted to, you could have worked on this 24/7. But it is important to have some time to just clear your head or spend time with your family, especially just given what you were dealing with day-to-day.KF: That's right. And of course, during the day, we made a point of that as well. If we were holding hearings like the one I just explained, we'd take a one-hour break, go for a walk, go into Central Park or into downtown Washington, buy an ice cream cone, see the kids playing in playgrounds and laughing. You've got to let the steam out of the pressure cooker, or it'll kill you. And that was the most difficult part of the whole program. In all of these programs, that's the common denominator: emotional stress and unhappiness on the part of the victims.DL: One last question, before we turn to some other matters. There was also a very large logistical apparatus associated with this, right? For example, PricewaterhouseCoopers. It wasn't just you and Camille trying to deal with these thousands of survivors and claimants; you did have support.KF: That's right. Pricewaterhouse won the bid at the Justice Department. This is public: Pricewaterhouse, for something like around $100 million, put 450 people to work with us to help us process claims, appraise values, do the research. Pricewaterhouse was a tremendous ally and has gone on, since 9/11, to handle claims design and claims administration, as one of its many specialties. Emily Kent, Chuck Hacker, people like that we worked with for years, very much experts in these areas.DL: So after your work on the 9/11 Fund, you've worked on a number of these types of matters. Is there one that you would say ranks second in terms of complexity or difficulty or meaningfulness to you?KF: Yes. Deepwater Horizon in 2011, 2012—that oil rig in the Gulf of Mexico blew up and killed about, I don't know, 15 to 20 people in the explosion. But the real challenge in that program was how we received, in 16 months, about 1,250,000 claims for business interruption, business losses, property damage. We received over a million claims from 50 states. I think we got probably a dozen claims from New Jersey; I didn't know the oil had gotten to New Jersey. We received claims from 35 foreign countries. And the sheer volume of the disaster overwhelmed us. We had, at one point, something like 40,000 people—vendors—working for us. We had 35 offices throughout the Gulf of Mexico, from Galveston, Texas, all the way to Mobile Bay, Alabama. Nevertheless, in 16 months, on behalf of BP, Deepwater Horizon, we paid out all BP money, a little over $7 billion, to 550,000 eligible claimants. And that, I would say, other than 9/11, had the greatest impact and was the most satisfying.DL: You mentioned some claims coming from some pretty far-flung jurisdictions. In these programs, how much of a problem is fraud?KF: Not much. First of all, with death claims like 9/11 or the Boston Marathon bombings or the 20 first-graders who died in Sandy Hook, Connecticut, at the hands of a deranged gunmen—most of the time, in traumatic death and injury, you've got records. No one can beat the system; you have to have a death certificate. In 9/11, where are your military records, if you were at the Pentagon? Where are the airplane manifests? You've got to be on the manifest if you were flying on that plane.Now, the problem becomes more pronounced in something like BP, where you've got over a million claims, and you wonder, how many people can claim injury from this explosion? There we had an anti-fraud unit—Guidepost, Bart Schwartz's company—and they did a tremendous job of spot-checking claims. I think that out of over a million claims, there may have been 25,000 that were suspicious. And we sent those claims to the Justice Department, and they prosecuted a fair number of people. But it wasn't a huge problem. I think the fraud rate was something like 3 percent; that's nothing. So overall, we haven't found—and we have to be ever-vigilant, you're right—but we haven't found much in the way of fraud.DL: I'm glad to hear that, because it would really be very depressing to think that there were people trying to profiteer off these terrible disasters and tragedies. Speaking of continuing disasters and tragedies, turning to current events, you are now working with Southern California Edison in dealing with claims related to the Eaton Fire. And this is a pending matter, so of course you may have some limits in terms of what you can discuss, but what can you say in a general sense about this undertaking?KF: This is the Los Angeles wildfires that everybody knows about, from the last nine or ten months—the tremendous fire damage in Los Angeles. One of the fires, or one of the selected hubs of the fire, was the Eaton Fire. Southern California Edison, the utility involved in the litigation and finger-pointing, decided to set up, à la 9/11, a voluntary claims program. Not so much to deal with death—there were about 19 deaths, and a handful of physical injuries—but terrible fire damage, destroyed homes, damaged businesses, smoke and ash and soot, for miles in every direction. And the utility decided, its executive decided, “We want to do the right thing here. We may be held liable or we may not be held liable for the fire, but we think the right thing to do is nip in the bud this idea of extended litigation. Look at 9/11: only 94 people ended up suing. We want to set up a program.”They came to Camille and me. Over the last eight weeks, we've designed the program, and I think in the last week of October or the first week of November, you will see publicly, “Here is the protocol; here is the claim form. Please submit your claims, and we'll get them paid within 90 days.” And if history is an indicator, Camille and I think that the Eaton Fire Protocol will be a success, and the great bulk of the thousands of victims will voluntarily decide to come into the program. We'll see. [Ed. note: On Wednesday, a few days after Ken and I recorded this episode, Southern California Edison announced its Wildfire Recovery Compensation Program.]DL: That raises a question that I'm curious about. How would you describe the relationship between the work that you and Camille and your colleagues do and the traditional work of the courts, in terms of in-the-trenches litigation? Because I do wonder whether the growth in your field is perhaps related to some developments in litigation, in terms of litigation becoming more expensive over the decades (in a way that far outstrips inflation), more complicated, or more protracted. How would you characterize that relationship?KF: I would say that the programs that we design and administer—like 9/11, like BP, plus the Eaton wildfires—are an exception to the rule. Nobody should think that these programs that we have worked on are the wave of the future. They are not the wave of the future; they are isolated, unique examples, where a company—or in 9/11, the U.S. government—decides, “We ought to set up a special program where the courts aren't involved, certainly not directly.” In 9/11, they were prohibited to be involved, by statute; in some of these other programs, like BP, the courts have a relationship, but they don't interfere with the day-to-day administration of the program.And I think the American people have a lot of faith in the litigation system that you correctly point out can be uncertain, very inefficient, and very costly. But the American people, since the founding of the country, think, “You pick your lawyer, I'll pick my lawyer, and we'll have a judge and jury decide.” That's the American rule of law; I don't think it's going to change. But occasionally there is a groundswell of public pressure to come up with a program, or there'll be a company—like the utility, like BP—that decides to have a program.And I'll give you one other example: the Catholic Church confronted thousands of claims of sexual abuse by priests. It came to us, and we set up a program—just like 9/11, just like BP—where we invited, voluntarily, any minor—any minor from decades ago, now an adult—who had been abused by the church to come into this voluntary program. We paid out, I think, $700 million to $800 million, to victims in dioceses around the country. So there's another example—Camille did most of that—but these programs are all relatively rare. There are thousands of litigations every day, and nothing's going to change that.DL: I had a guest on a few weeks ago, Chris Seeger of Seeger Weiss, who does a lot of work in the mass-tort space. It's interesting: I feel that that space has evolved, and maybe in some ways it's more efficient than it used to be. They have these multi-district litigation panels, they have these bellwether trials, and then things often get settled, once people have a sense of the values. That system and your approach seem to have some similarities, in the sense that you're not individually trying each one of these cases, and you're having somebody with liability come forward and voluntarily pay out money, after some kind of negotiation.KF: Well, there's certainly negotiation in what Chris Seeger does; I'm not sure we have much negotiation. We say, “Here's the amount under the administrative scheme.” It's like in workers' compensation: here's the amount. You don't have to take it. There's nothing to really talk about, unless you have new evidence that we're not aware of. And those programs, when we do design them, seem to work very efficiently.Again, if you ask Camille Biros what was the toughest part of valuing individual claims of sexual-abuse directed at minors, she would say, “These hearings: we gave every person who wanted an opportunity to be heard.” And when they come to see Camille, they don't come to talk about money; they want validation for what they went through. “Believe me, will you? Ken, Camille, believe me.” And when Camille says, “We do believe you,” they immediately, or almost immediately, accept the compensation and sign a release: “I will not sue the Catholic diocese.”DL: So you mentioned there isn't really much negotiation, but you did talk in the book about these sort of “appeals.” You had these two tracks, “Appeals A” and “Appeals B.” Can you talk about that? Did you ever revisit what you had set as the award for a particular victim's family, after hearing from them in person?KF: Sure. Now, remember, those appeals came back to us, not to a court; there's no court involvement. But in 9/11, in BP, if somebody said, “You made a mistake—you didn't account for these profits or this revenue, or you didn't take into account this contract that my dead firefighter husband had that would've given him a lot more money”—of course, we'll revisit that. We invited that. But that's an internal appeals process. The people who calculated the value of the claim are the same people that are going to be looking at revisiting the claim. But again, that's due process, and that's something that we thought was important.DL: You and Camille have been doing this really important work for decades. Since this is, of course, shortly after your 80th birthday, I should ask: do you have future plans? You're tackling some of the most complicated matters, headline-making matters. Would you ever want to retire at some point?KF: I have no intention of retiring. I do agree that when you reach a certain pinnacle in what you've done, you do slow down. We are much more selective in what we do. I used to have maybe 15 mediations going on at once; now, we have one or two matters, like the Los Angeles wildfires. As long as I'm capable, as long as Camille's willing, we'll continue to do it, but we'll be very careful about what we select to do. We don't travel much. The Los Angeles wildfires was largely Zooms, going back and forth. And we're not going to administer that program. We had administered 9/11 and BP; we're trying to move away from that. It's very time-consuming and stressful. So we've accomplished a great deal over the last 50 years—but as long as we can do it, we'll continue to do it.DL: Do you have any junior colleagues who would take over what you and Camille have built?KF: We don't have junior colleagues. There's just the two of us and Cindy Sanzotta, our receptionist. But it's an interesting question: “Who's after Feinberg? Who's next in doing this?” I think there are thousands of people in this country who could do what we do. It is not rocket science. It really isn't. I'll tell you what's difficult: the emotion. If somebody wants to do what we do, you better brace yourself for the emotion, the anger, the frustration, the finger pointing. It goes with the territory. And if you don't have the psychological ability to handle this type of stress, stay away. But I'm sure somebody will be there, and no one's irreplaceable.DL: Well, I know I personally could not handle it. I worked when I was at a law firm on civil litigation over insurance proceeds related to the World Trade Center, and that was a very draining case, and I was very glad to no longer be on it. So I could not do what you and Camille do. But let me ask you, to end this section on a positive note: what would you say is the most rewarding or meaningful or satisfying aspect of the work that you do on these programs?KF: Giving back to the community. Public service. Helping the community heal. Not so much the individuals; the individuals are part of the community. “Every individual can make a difference.” I remember that every day, what John F. Kennedy said: government service is a noble undertaking. So what's most rewarding for me is that although I'm a private practitioner—I am no longer in government service, since my days with Senator Kennedy—I'd like to think that I performed a valuable service for the community, the resilience of the community, the charity exhibited by the community. And that gives me a great sense of self-satisfaction.DL: You absolutely have. It's been amazing, and I'm so grateful for you taking the time to join me.So now, onto our speed round. These are four questions that are standardized. My first question is, what do you like the least about the law? And this can either be the practice of law or law in a more abstract sense.KF: Uncertainty. What I don't like about the law is—and I guess maybe it's the flip side of the best way to get to a result—I don't like the uncertainty of the law. I don't like the fact that until the very end of the process, you don't know if your view and opinion will prevail. And I think losing control over your destiny in that regard is problematic.DL: My second question—and maybe we touched on this a little bit, when we talked about your father's opinions—what would you be if you were not a lawyer?KF: Probably an actor. As I say, I almost became an actor. And I still love theater and the movies and Broadway shows. If my father hadn't given me that advice, I was on the cusp of pursuing a career in the theater.DL: Have you dabbled in anything in your (probably limited) spare time—community theater, anything like that?KF: No, but I certainly have prioritized in my spare time classical music and the peace and optimism it brings to the listener. It's been an important part of my life.DL: My third question is, how much sleep do you get each night?KF: Well, it varies from program to program. I'd like to get seven hours. That's what my doctors tell me: “Ken, very important—more important than pills and exercise and diet—is sleep. Your body needs a minimum of seven hours.” Well, for me, seven hours is rare—it's more like six or even five, and during 9/11 or during Eaton wildfires, it might be more like four or five. And that's not enough, and that is a problem.DL: My last question is, any final words of wisdom, such as career advice or life advice, for my listeners?KF: Yes, I'll give you some career and life advice. It's very simple: don't plan too far ahead. People have this view—you may think you know what you want to do with your career. You may think you know what life holds for you. You don't know. If I've learned anything over the last decades, life has a way of changing the best-laid plans. These 9/11 husbands and wives said goodbye to their children, “we'll see you for dinner,” a perfunctory wave—and they never saw them again. Dust, not even a body. And the idea I tell law students—who say, ”I'm going to be a corporate lawyer,” or “I'm going to be a litigator”—I tell them, “You have no idea what your legal career will look like. Look at Feinberg; he never planned on this. He never thought, in his wildest dreams, that this would be his chosen avenue of the law.”My advice: enjoy the moment. Do what you like now. Don't worry too much about what you'll be doing two years, five years, 10 years, a lifetime ahead of you. It doesn't work that way. Everybody gets thrown curveballs, and that's advice I give to everybody.DL: Well, you did not plan out your career, but it has turned out wonderfully, and the country is better for it. Thank you, Ken, both for your work on all these matters over the years and for joining me today.KF: A privilege and an honor. Thanks, David.DL: Thanks so much to Ken for joining me—and, of course, for his decades of work resolving some of the thorniest disputes in the country, which is truly a form of public service.Thanks to NexFirm for sponsoring the Original Jurisdiction podcast. NexFirm has helped many attorneys to leave Biglaw and launch firms of their own. To explore this opportunity, please contact NexFirm at 212-292-1000 or email careerdevelopment@nexfirm.com to learn more.Thanks to Tommy Harron, my sound engineer here at Original Jurisdiction, and thanks to you, my listeners and readers. To connect with me, please email me at davidlat@substack.com, or find me on Twitter, Facebook, and LinkedIn, at davidlat, and on Instagram and Threads at davidbenjaminlat.If you enjoyed today's episode, please rate, review, and subscribe. Please subscribe to the Original Jurisdiction newsletter if you don't already, over at davidlat.substack.com. This podcast is free, but it's made possible by paid subscriptions to the newsletter.The next episode should appear on or about Wednesday, November 12. Until then, may your thinking be original and your jurisdiction free of defects.Thanks for reading Original Jurisdiction, and thanks to my paid subscribers for making this publication possible. Subscribers get (1) access to Judicial Notice, my time-saving weekly roundup of the most notable news in the legal world; (2) additional stories reserved for paid subscribers; (3) transcripts of podcast interviews; and (4) the ability to comment on posts. You can email me at davidlat@substack.com with questions or comments, and you can share this post or subscribe using the buttons below. This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit davidlat.substack.com/subscribe

Richard Epstein analyzes Justice Breyer's ruling on Trump's use of federal troops in Los Angeles. They explore the Posse Comitatus Act, the limits of presidential emergency powers, and why the courts often avoid tough factual questions—raising big issues about federal vs. state authority and executive overreach.

As an Associate Justice on the Supreme Court for almost three decades, Stephen Breyer was no stranger to hearing arguments for different sides in major cases. In this episode, our moderator-in-chief, John Donvan, and Chief Content Officer, Lia Matthow, interview Justice Breyer and discuss his book “Reading the Constitution: Why I Chose Pragmatism, not Textualism.” He discusses how he used this philosophy to guide his decisions and why he thinks jurists should choose this approach.    Our Guest: Stephen Breyer, Former United States Supreme Court Justice    Emmy award-winning journalist John Donvan and Lia Matthow, Chief Content Officer of Open to Debate, moderates  Learn more about your ad choices. Visit podcastchoices.com/adchoices

Former Justice Breyer returns to Amarica's Constitution with reflections on his long-time colleague and, yes, his friend, in a rare opportunity to hear about relationships on the Court.  Meanwhile, former Souter clerk and current Professor at Penn Carey Law School, Kermit Roosevelt, looks back on the clerkship as well as at the threads that have emerged in the law and in his career from Justice Souter's insights and methodology.  And Nadine Strossen, long-time president of the ACLU as well as dear friend to Justice Souter explores many of the first amendment and other cases that Justice Souter had profound things to say, often in dissent.  This is a powerhouse episode, but a tender one.  CLE credit is available for lawyers and judges from podcast.njsba.com.

While John was busy saving democracy Alyssa recaps Madigan's sentencing for Morgan with a few digressions including the writing styles of SCOTUS justices and is someone trying to kill R. Kelly.   Socials:Twitter, BlueSky, Instagram Show Notes: Chicago Sun-Times: R. Kelly News Chicago Sun-Times: USA V Michael Madigan Chicago Tribune: An expert at rounding up support, ex-Speaker Michael Madigan leaning on letters at corruption sentencing Chicago Tribune: Here's who wrote a letter of support for former House Speaker Michael Madigan Chicago Tribune: After six decades on Illinois' public stage, Michael Madigan's likely last act will be his sentencing in a courtroom FridayChicago Tribune: Ex-House Speaker Michael Madigan sentenced to 7 1/2 years in prison after judge excoriates him for lying on witness stand Chicago Tribune: Madigan attorneys say feds' call for 12.5-year sentence is ‘draconian'; prosecutors say he's worth $40 million in new court filings Politico: Meet the judge overseeing the Trump National Guard case: Justice Breyer's brother Chicago Tribune: Republicans, some Democrats and even ex-Gov. Rod Blagojevich weigh in on ex-Speaker Michael Madigan's sentence Learn more about your ad choices. Visit megaphone.fm/adchoices

The stories you may have missed this week: Justice Breyer's retarded little brother has insane decision stayed America hits “Compassion Fatigue” Democrats on the run Trump goes wobbly on immigration in ag and hospitality Scamming old people

The stories you may have missed this week:Justice Breyer's little brother has insane decision stayedAmerica hits "Compassion Fatigue"Democrats on the runTrump goes wobbly on immigration in ag and hospitalityScamming old people

To mark the paperback release of the New York Times bestseller, Reading the Constitution: Why I Chose Pragmatism, Not Textualism, former Associate Justice of the U.S. Supreme Court Stephen Breyer offers a provocative analysis of the textualist philosophy of the current Supreme Court's supermajority and makes the case for a more pragmatic approach of the Constitution. In conversation with Neal Katyal, former Acting Solicitor General of the U.S. who has argued 52 cases before the Supreme Court. This program was held on May 13, 2025 in partnership with Politics and Prose. 

The Honorable Stephen G. Breyer, associate justice of the U.S. Supreme Court (ret.) and National Constitution Center honorary co-chair, joins Christiane Taubira, former French justice minister, for a conversation on democracy, the rule of law, and constitutional traditions from French and American perspectives. Jeffrey Rosen, president and CEO of the National Constitution Center, moderates. Translation is provided by Nicholas Elliott. This program is presented in partnership with Villa Albertine's series, Democracy in an Age of Uncertainty: French and American Perspectives. The series is made possible by the generous support of the Judy and Peter Blum Kovler Foundation. Stay Connected and Learn More Questions or comments about the show? Email us at ⁠⁠podcast@constitutioncenter.org⁠⁠ Continue the conversation by following us on social media @ConstitutionCtr. ⁠⁠Sign up⁠⁠ to receive Constitution Weekly, our email roundup of constitutional news and debate. Follow, rate, and review wherever you listen. Join us for an upcoming ⁠⁠live program⁠⁠ or watch recordings on ⁠⁠YouTube⁠⁠. Support our important work. ⁠⁠Donate

The arrest of Wisconsin judge Hannah Dugan is straight outta dystopian fiction. But at least retired Supreme Court Justice Stephen Breyer still has faith in the system, which makes one of us. Speaking of the High Court, Justice Sam Alito's dissent would be laughable if he weren't so powerful.

The arrest of Wisconsin judge Hannah Dugan is straight outta dystopian fiction. But at least retired Supreme Court Justice Stephen Breyer still has faith in the system, which makes one of us. Speaking of the High Court, Justice Sam Alito's dissent would be laughable if he weren't so powerful. Learn more about your ad choices. Visit megaphone.fm/adchoices

Supreme Court Justice Stephen Breyer joins Preet to discuss his book Reading the Constitution: Why I Chose Pragmatism Not Textualism. They talk about judicial integrity and political pressure, how the Court deliberates and decides cases, and Justice Breyer's response to calls to impeach judges based on their rulings. The conversation was recorded before a live audience at The Cooper Union on April 4, 2025. Plus, president Trump's deals with law firms and the confirmation prospects for  Ed Martin as the U.S. Attorney in D.C. Show notes and a transcript of the episode are available on our website.  You can now watch this episode! Head to CAFE's Youtube channel and subscribe. Have a question for Preet? Ask @PreetBharara on BlueSky, or Twitter with the hashtag #AskPreet. Email us at staytuned@cafe.com, or call 833-997-7338 to leave a voicemail. Stay Tuned with Preet is brought to you by CAFE and the Vox Media Podcast Network. Learn more about your ad choices. Visit podcastchoices.com/adchoices

We're a bit late this week, because following our recent conversation with Justice Breyer, we had the opportunity to speak at length with Judge William Pryor, Chief Judge of the United States Court of Appeals for the 11th Circuit, former Alabama Attorney General, and an important member of the Judicial Conference the “national policymaking body for the federal courts.” Judge Pryor has had a colorful career, having effectively prosecuted another judge for misconduct, had a contentious confirmation hearing, clerked for a titan among judges in Judge Wisdom, and served at the highest level short of the Supreme Court for many years.  We discuss a wide range of matters from judicial safety, to the importance of following Court orders, to enforcing civil rights laws, and much more.  The discussion took place in two parts;  with an audience of undergraduates, and then with an audience of Yale Law School students, many from the Federalist Society chapter at Yale; this produced a great variety of topics. We also have timely information on a new EverScholar program where registration is about to open; be among the first to know about this!  CLE credit is available from podcast.njsba.com.

One day after speaking with Vladimir Putin, Donald Trump gets on the horn with Volodymyr Zelensky. Also: We speak live with the retired US Supreme court Justice Stephen Breyer about the Trump administration's push to expand the powers of the executive branch, and the very rare rebuke from Chief Justice John Roberts.  Learn more about your ad choices. Visit podcastchoices.com/adchoices

Why is reforming capitalism so essential? In the latest issue of Liberties Quarterly, Tim Wu argues that unregulated capitalism not only leads to economic monopolies, but also drives populist anger and authoritarian politics. In “The Real Road to Serfdom”, Wu advocates for "decentralized capitalism" with distributed economic power, citing examples from Scandinavia and East Asia. Drawing from his experience in the Biden administration's antitrust efforts, he emphasizes the importance of preventing industry concentration. Wu expresses concern about big tech's growing political influence and argues that challenging monopolies is critical for fostering innovation and maintaining economic progress in the United States.Here are the 5 KEEN ON AMERICA takeaways from our interview with Tim Wu:* Historical Parallels: Wu sees concerning parallels between our current era and the 1930s, characterized by concentrated economic power, fragile economic conditions, and the rise of populist leaders. He suggests we're in a period where leaders are moving beyond winning elections to attempting to alter constitutional frameworks.* The Monopoly-Autocracy Connection: Wu argues there's a dangerous cycle where monopolies create economic inequality, which generates populist anger, which then enables authoritarian leaders to rise to power. He cites Hugo Chavez as a pioneer of this modern autocratic model that leaders like Trump have followed.* Decentralized Capitalism: Wu advocates for an economic system with multiple centers of distributed economic power, rather than just a few giant companies accumulating wealth. He points to Denmark, Taiwan, and post-WWII East Asia as successful examples of more balanced economic structures.* Antitrust Legacy: Wu believes the Biden administration's antitrust enforcement efforts have created lasting changes in legal standards and public consciousness that won't be easily reversed. He emphasizes that challenging monopolies is crucial for maintaining innovation and preventing industry stagnation.* Big Tech and Power: Wu expresses concern about big tech companies' growing political influence, comparing it to historical examples like AT&T and IBM. He's particularly worried about AI potentially reinforcing existing power structures rather than democratizing opportunities.Complete Transcript: Tim Wu on The Real Road to SerfdomAndrew Keen: Hello, everybody. We live in very strange times. That's no exaggeration. Yesterday, we had Nick Bryant on the show, the author of The Forever War. He was the BBC's man in Washington, DC for a long time. In our conversation, Nick suggested that we're living in really historic times, equivalent to the fall of the Berlin Wall, 9/11, perhaps even the beginnings of the Second World War.My guest today, like Nick, is a deep thinker. Tim Wu will be very well known to you for many things, including his book, The Attention Merchants. He was involved in the Biden White House, teaches law at Columbia University, and much more. He has a new book coming out later in the year on November 4th, The Age of Extraction. He has a very interesting essay in this issue of Liberties, the quarterly magazine of ideas, called "The Real Road to Serfdom."Tim had a couple of interesting tweets in the last couple of days, one comparing the behavior of President Trump to Germany's 1933 enabling act. And when it comes to Ukraine, Tim wrote, "How does the GOP feel about their president's evident plan to forfeit the Cold War?" Tim Wu is joining us from his home in the village of Manhattan. Tim, welcome. Before we get to your excellent essay in Liberties, how would you historicize what we're living through at the moment?Tim Wu: I think the 1930s are not the wrong way to look at it. Prior to that period, you had this extraordinary concentration of economic power in a very fragile environment. A lot of countries had experienced an enormous crash and you had the rise of populist leaders, with Mussolini being the pioneer of the model. This has been going on for at least 5 or 6 years now. We're in that middle period where it's moving away from people just winning elections to trying to really alter the constitution of their country. So I think the mid-30s is probably about right.Andrew Keen: You were involved in the Biden administration. You were one of the major thinkers when it came to antitrust. Have you been surprised with what's happened since Biden left office? The speed, the radicalness of this Trump administration?Tim Wu: Yes, because I expected something more like the first Trump administration, which was more of a show with a lot of flash but poor execution. This time around, the execution is also poor but more effective. I didn't fully expect that Elon Musk would actually be a government official at this point and that he'd have this sort of vandalism project going on. The fact they won all of the houses of Congress was part of the problem and has made the effort go faster.Andrew Keen: You talk about Musk. We've done many shows on Musk's role in all this and the seeming arrival of Silicon Valley or a certain version of Silicon Valley in Washington, DC. You're familiar with both worlds, the world of big tech and Silicon Valley and Washington. Is that your historical reading that these two worlds are coming together in this second Trump administration?Tim Wu: It's very natural for economic power to start to seek political power. It follows from the basic view of monopoly as a creature that wants to defend itself, and the second observation that the most effective means of self-defense is control of government. If you follow that very simple logic, it stands to reason that the most powerful economic entities would try to gain control of government.I want to talk about the next five years. The tech industry is following the lead of Palantir and Peter Thiel, who were pioneers in thinking that instead of trying to avoid government, they should try to control it. I think that is the obvious move over the next four years.Andrew Keen: I've been reading your excellent essay in Liberties, "The Real Road to Serfdom." When did you write it? It seems particularly pertinent this week, although of course you didn't write it knowing exactly what was going to be happening with Musk and Washington DC and Trump and Ukraine.Tim Wu: I wrote it about two years ago when I got out of the White House. The themes are trying to get at eternal issues about the dangers of economic power and concentrated economic power and its unaccountability. If it made predictions that are starting to come true, I don't know if that's good or bad.Andrew Keen: "The Real Road to Serfdom" is, of course, a reference to the Hayek book "The Road to Serfdom." Did you consciously use that title with reference to Hayek, or was that a Liberties decision?Tim Wu: That was my decision. At that point, and I may still write this, I was thinking of writing a book just called "The Real Road to Serfdom." I am both fascinated and a fan of Hayek in certain ways. I think he nailed certain things exactly right but makes big errors at the same time.To his credit, Hayek was very critical of monopoly and very critical of the role of the state in reinforcing monopoly. But he had an almost naivete about what powerful, unaccountable private economic entities would do with their power. That's essentially my criticism.Andrew Keen: In 2018, you wrote a book, "The Curse of Bigness." And in a way, this is an essay against bigness, but it's written—please correct me if I'm wrong—I read it as a critique of the left, suggesting that there were times in the essay, if you're reading it blind, you could have been reading Hayek in its critique of Marx and centralization and Lenin and Stalin and the Ukrainian famines. Is the message in the book, Tim—is your audience a progressive audience? Are you saying that it's a mistake to rely on bigness, so to speak, the state as a redistributive platform?Tim Wu: Not entirely. I'm very critical of communist planned economies, and that's part of it. But it's mainly a critique of libertarian faith in private economic power or sort of the blindness to the dangers of it.My basic thesis in "The Real Road to Serfdom" is that free market economies will tend to monopolize. Once monopoly power is achieved, it tends to set off a strong desire to extract as much wealth from the rest of the economy as it can, creating something closer to a feudal-type economy with an underclass. That tends to create a huge amount of resentment and populist anger, and democracies have to respond to that anger.The libertarian answer of saying that's fine, this problem will go away, is a terrible answer. History suggests that what happens instead is if democracy doesn't do anything, the state takes over, usually on the back of a populist strongman. It could be a communist, could be fascist, could be just a random authoritarian like in South America.I guess I'd say it's a critique of both the right and the left—the right for being blind to the dangers of concentrated economic power, and the left, especially the communist left, for idolizing the takeover of vital functions by a giant state, which has a track record as bad, if not worse, than purely private power.Andrew Keen: You bring up Hugo Chavez in the essay, the now departed Venezuelan strongman. You're obviously no great fan of his, but you do seem to suggest that Chavez, like so many other authoritarians, built his popularity on the truth of people's suffering. Is that fair?Tim Wu: That is very fair. In the 90s, when Chavez first came to power through popular election, everyone was mystified and thought he was some throwback to the dictators of the 60s and 70s. But he turned out to be a pioneer of our future, of the new form of autocrat, who appealed to the unfairness of the economy post-globalization.Leaders like Hungary's Viktor Orbán, and certainly Donald Trump, are direct descendants of Hugo Chavez in their approach. They follow the same playbook, appealing to the same kind of pain and suffering, promising to act for the people as opposed to the elites, the foreigners, and the immigrants. Chavez is also a cautionary lesson. He started in a way which the population liked—he lowered gas prices, gave away money, nationalized industry. He was very popular. But then like most autocrats, he eventually turned the money to himself and destroyed his own country.Andrew Keen: Why are autocrats like Chavez and perhaps Trump so much better at capturing that anger than Democrats like Joe Biden and Kamala Harris?Tim Wu: People who are outside the system like Chavez are able to tap into resentment and anger in a way which is less diluted by their direct information environment and their colleagues. Anyone who hangs around Washington, DC for a long time becomes more muted and careful. They lose credibility.That said, the fact that populist strongmen take over countries in distress suggests we need to avoid that level of economic distress in the first place and protect the middle class. Happy, contented middle-class countries don't tend to see the rise of authoritarian dictators. There isn't some Danish version of Hugo Chavez in the running right now.Andrew Keen: You bring up Denmark. Denmark always comes up in these kinds of conversations. What's admirable about your essay is you mostly don't fall into the Denmark trap of simply saying, "Why don't we all become like Denmark?" But at the same time, you acknowledge that the Danish model is attractive, suggesting we've misunderstood it or treated it superficially. What can and can't we learn from the Danish model?Tim Wu: American liberals often misunderstand the lesson of Scandinavia and other countries that have strong, prosperous middle classes like Taiwan, Japan, and Korea. In Scandinavia's case, the go-to explanation is that it's just the liberals' favorite set of policies—high taxation, strong social support systems. But I think the structure of those economies is much more important.They have what Jacob Hacker calls very strong "pre-distribution." They've avoided just having a small set of monopolists who make all the money and then hopefully hand it out to other people. It goes back to their land reform in the early 19th century, where they set up a very different kind of economy with a broad distribution of productive assets.If I'm trying to promote a philosophy in this book, it's for people who are fed up with the excesses of laissez-faire capitalism and think it leads to autocracy, but who are also no fans of communism or socialism. Just saying "let people pile up money and we'll tax it later" is not going to work. What you need is an economy structured with multiple centers of distributed economic power.Andrew Keen: The term that seems to summarize that in the essay is "architecture of parity." It's a bit clunky, but is that the best way to sum up your thinking?Tim Wu: I'm working on the terminology. Architecture of equality, parity, decentralized capitalism, distribution—these are all terms trying to capture it. It's more of a 19th century form of Christian or Catholic economics. People are grasping for the right word for an economic system that doesn't rely on just a few giant companies taking money from everybody and hopefully redistributing it. That model is broken and has a dangerous tendency to lead to toxicity. We need a better capitalism. An alternative title for this piece could have been "Saving Capitalism from Itself."Andrew Keen: Your name is most associated with tech and your critique of big tech. Does this get beyond big tech? Are there other sectors of the economy you're interested in fixing and reforming?Tim Wu: Absolutely. Silicon Valley is the most obvious and easiest entry point to talk about concentrated economic power. You can see the dependence on a small number of platforms that have earnings and profits far beyond what anyone imagined possible. But we're talking about an economy-wide, almost global set of problems.Some industries are worse. The meat processing industry in the United States is horrendously concentrated—it takes all the money from farmers, charges us too much for meat, and keeps it for itself. There are many industries where people are looking for something to understand or believe in that's different than socialism but different than this libertarian capitalism that ends up bankrupting people. Tech is the easiest way to talk about it, but not the be-all and end-all of my interest.Andrew Keen: Are there other examples where we're beginning to see decentralized capitalism? The essay was very strong on the critique, but I found fewer examples of decentralized capitalism in practice outside maybe Denmark in the 2020s.Tim Wu: East Asia post-World War II is a strong example of success. While no economy is purely small businesses, although Taiwan comes close, if you look at the East Asian story after World War II, one of the big features was an effort to reform land, give land to peasants, and create a landowning class to replace the feudal system. They had huge entrepreneurism, especially in Korea and Taiwan, less in Japan. This built a strong and prosperous middle and upper middle class.Japan has gone through hard times—they let their companies get too big and they stagnated. But Korea and Taiwan have gone from being third world economies to Taiwan now being wealthier per capita than Japan. The United States is another strong example, vacillating between being very big and very small. Even at its biggest, it still has a strong entrepreneurial culture and sectors with many small entities. Germany is another good example. There's no perfect version, but what I'm saying is that the model of monopolized economies and just having a few winners and hoping that anybody else can get tax payments is really a losing proposition.Andrew Keen: You were on Chris Hayes recently talking about antitrust. You're one of America's leading thinkers on antitrust and were brought into the Biden administration on the antitrust front. Is antitrust then the heart of the matter? Is this really the key to decentralizing capitalism?Tim Wu: I think it's a big tool, one of the tools of managing the economy. It works by preventing industries from merging their way into monopoly and keeps a careful eye on structure. In the same way that no one would say interest rates are the be-all and end-all of monetary policy, when we're talking about structural policy, having antitrust law actively preventing overconcentration is important.In the White House itself, we spent a lot of time trying to get other agencies to prevent their sectors, whether healthcare or transportation, from becoming overly monopolized and extractive. You can have many parts of the government involved—the antitrust agencies are key, but they're not the only solution.Andrew Keen: You wrote an interesting piece for The Atlantic about Biden's antitrust initiatives. You said the outgoing president's legacy of revived antitrust enforcement won't be easy to undo. Trump is very good at breaking things. Why is it going to be hard to undo? Lina Khan's gone—the woman who seems to unite all of Silicon Valley in their dislike of her. What did Biden do to protect antitrust legislation?Tim Wu: The legal patterns have changed and the cases are ongoing. But I think more important is a change of consciousness and ideology and change in popular support. I don't think there is great support for letting big tech do whatever they want without oversight. There are people who believe in that and some of them have influence in this administration, but there's been a real change in consciousness.I note that the Federal Trade Commission has already announced that it's going to stick with the Biden administration's merger rules, and my strong sense is the Department of Justice will do the same. There are certain things that Trump did that we stuck with in the Biden administration because they were popular—the most obvious being the turn toward China. Going back to the Bush era approach of never bothering any monopolies, I just don't think there's an appetite for it.Andrew Keen: Why is Lina Khan so unpopular in Silicon Valley?Tim Wu: It's interesting. I'm not usually one to attribute things to sexism, but the Justice Department brought more cases against big tech than she did. Jonathan Kanter, who ran antitrust at Justice, won the case against Google. His firm was trying to break up Google. They may still do it, but somehow Lina Khan became the face of it. I think because she's young and a woman—I don't know why Jonathan Kanter didn't become the symbol in the same way.Andrew Keen: You bring up the AT&T and IBM cases in the US tech narrative in the essay, suggesting that we can learn a great deal from them. What can we learn from those cases?Tim Wu: The United States from the 70s through the 2010s was an extraordinarily innovative place and did amazing things in the tech industry. An important part of that was challenging the big IBM and AT&T monopolies. AT&T was broken into eight pieces. IBM was forced to begin selling its software separately and opened up the software markets to what became a new software industry.AT&T earlier had been forced to license the transistor, which opened up the semiconductor industry and to some degree the computing industry, and had to stay out of computing. The government intervened pretty forcefully—a form of industrial policy to weaken its tech monopolies. The lesson is that we need to do the same thing right now.Some people will ask about China, but I think the United States has always done best when it constantly challenges established power and creates room for entrepreneurs to take their shot. I want very much for the new AI companies to challenge the main tech platforms and see what comes of that, as opposed to becoming a stagnant industry. Everyone says nothing can become stagnant, but the aerospace industry was pretty quick-moving in the 60s, and now you have Boeing and Airbus sitting there. It's very easy for a tech industry to stagnate, and attacking monopolists is the best way to prevent that.Andrew Keen: You mentioned Google earlier. You had an interesting op-ed in The New York Times last year about what we should do about Google. My wife is head of litigation at Google, so I'm not entirely disinterested. I also have a career as a critic of Google. If Kent Walker was here, he would acknowledge some of the things he was saying. But he would say Google still innovates—Google hasn't become Boeing. It's innovating in AI, in self-driving cars, it's shifting search. Would he be entirely wrong?Tim Wu: No, he wouldn't be entirely wrong. In the same way that IBM kept going, AT&T kept going. What you want in tech industries is a fair fight. The problem with Google isn't that they're investing in AI or trying to build self-driving cars—that's great. The problem is that they were paying over $20 billion a year to Apple for a promise not to compete in search. Through control of the browsers and many other things, they were trying to make sure they could never be dislodged.My view of the economics is monopolists need to always be a little insecure. They need to be in a position where they can be challenged. That happens—there are companies who, like AT&T in the 70s or 60s, felt they were immune. It took the government to make space. I think it's very important for there to be opportunities to challenge the big guys and try to seize the pie.Andrew Keen: I'm curious where you are on Section 230. Google won their Supreme Court case when it came to Section 230. In this sense, I'm guessing you view Google as being on the side of the good guys.Tim Wu: Section 230 is interesting. In the early days of the Internet, it was an important infant industry protection. It was an insulation that was vital to get those little companies at the time to give them an opportunity to grow and build business models, because if you're being sued by billions of people, you can't really do too much.Section 230 was originally designed to protect people like AOL, who ran user forums and had millions of people discussing—kind of like Reddit. I think as Google and companies like Facebook became active in promoting materials and became more like media companies, the case for an absolutist Section 230 became a lot weaker. The law didn't really change but the companies did.Andrew Keen: You wrote the essay "The Real Road to Serfdom" a couple of years ago. You also talked earlier about AI. There's not a lot of AI in this, but 50% of all the investment in technology over the last year was in AI, and most of that has gone into these huge platforms—OpenAI, Anthropic, Google Gemini. Is AI now the central theater, both in the Road to Serfdom and in liberating ourselves from big tech?Tim Wu: Two years ago when I was writing this, I was determined not to say anything that would look stupid about AI later. There's a lot more on what I think about AI in my new book coming in November.I see AI as a classic potential successor technology. It obviously is the most significant successor to the web and the mass Internet of 20 years ago in terms of having potential to displace things like search and change the way people do various forms of productivity. How technology plays out depends a lot on the economic structure. If you think about a technology like the cotton gin, it didn't automatically lead to broad flourishing, but reinforced plantation slavery.What I hope happens with AI is that it sets off more competition and destabilization for some of the tech platforms as opposed to reinforcing their advantage and locking them in forever. I don't know if we know what's going to happen right now. I think it's extremely important that OpenAI stays separate from the existing tech companies, because if this just becomes the same players absorbing technology, that sounds a lot like the darker chapters in US tech history.Andrew Keen: And what about the power of AI to liberate ourselves from our brain power as the next industrial revolution? When I was reading the essay, I thought it would be a very good model, both as a warning and in terms of offering potential for us to create this new architecture of parity. Because the technology in itself, in theory at least, is one of parity—one of democratizing brainpower.Tim Wu: Yes, I agree it has extraordinary potential. Things can go in two directions. The Industrial Revolution is one example where you had more of a top-down centralization of the means of production that was very bad for many people initially, though there were longer-term gains.I would hope AI would be something more like the PC revolution in the 80s and 90s, which did augment individual humanity as opposed to collective enterprise. It allowed people to do things like start their own travel agency or accounting firm with just a computer. I am interested and bullish on the potential of AI to empower smaller units, but I'm concerned it will be used to reinforce existing economic structures. The jury's out—the future will tell us. Just hoping it's going to make humanity better is not going to be the best answer.Andrew Keen: When you were writing this essay, Web3 was still in vogue then—the idea of blockchain and crypto decentralizing the economy. But I didn't see any references to Web3 and the role of technology in democratizing capitalism in terms of the architecture of corporations. Are you skeptical of the Web3 ideology?Tim Wu: The essay had its limits since I was also talking about 18th century Denmark. I have a lot more on blockchain and Web3 in the book. The challenge with crypto and Bitcoin is that it both over-promises and delivers something. I've been very interested in crypto and blockchain for a long time. The challenge it's had is constantly promising to decentralize great systems and failing, then people stealing billions of dollars and ending up in prison.It has a dubious track record, but it does have this core potential for a certain class of people to earn money. I'm always in favor of anything that is an alternative means of earning money. There are people who made money on it. I just think it's failed to execute on its promises. Blockchain in particular has failed to be a real challenge to web technologies.Andrew Keen: As you say, Hayek inspired the book and in some sense this is intellectual. The father of decentralization in ideological terms was E.F. Schumacher. I don't think you reference him, but do you think there has been much thinking since Schumacher on the value of smallness and decentralized architectures? What do people like yourself add to what Schumacher missed in his critique of bigness?Tim Wu: Schumacher is a good example. Rawls is actually under-recognized as being interested in these things. I see myself as writing in the tradition of those figures and trying to pursue a political economy that values a more balanced economy and small production.Hopefully what I add is a level of institutional experience and practicality that was missing. Rawls is slightly unfair because he's a philosopher, but his model doesn't include firms—it's just individuals. So it's all about balancing between poor people and rich people when obviously economic power is also held by corporations.I'm trying to create more flesh on the bones of the "small is beautiful" philosophy and political economy that is less starry-eyed and more realistic. I'm putting forward the point that you're not sacrificing growth and you're taking less political risk with a more balanced economy. There's an adulation of bigness in our time—exciting big companies are glamorous. But long-term prosperity does better when you have more centers, a more balanced system. I'm not an ultra-centralist suggesting we should live in mud huts, but I do think the worship of monopoly is very similar to the worship of autocracy and is dangerous.Andrew Keen: Much to discuss. Tim Wu, thank you so much. The author of "The Real Road to Serfdom," fascinating essay in this month's issue of Liberties. I know "The Age of Extraction" will be coming out on November 10th.Tim Wu: In England and US at the same time.Andrew Keen: We'll get you back on the show. Fascinating conversation, Tim. Thank you so much.Hailed as the “architect” of the Biden administration's competition and antitrust policies, Tim Wu writes and teaches about private power and related topics. First known for coining the term “net neutrality” in 2002, in recent years Wu has been a leader in the revitalization of American antitrust and has taken a particular focus on the growing power of the big tech platforms. In 2021, he was appointed to serve in the White House as special assistant to the president for technology and competition policy. A professor at Columbia Law School since 2006, Wu has also held posts in public service. He was enforcement counsel in the New York Attorney General's Office, worked on competition policy for the National Economic Council during the Barack Obama administration, and worked in antitrust enforcement at the Federal Trade Commission. In 2014, Wu was a Democratic primary candidate for lieutenant governor of New York. In his most recent book, The Curse of Bigness: Antitrust in the New Gilded Age (2018), he argues that corporate and industrial concentration can lead to the rise of populism, nationalism, and extremist politicians. His previous books include The Attention Merchants: The Epic Scramble to Get Inside Our Heads (2016), The Master Switch: The Rise and Fall of Information Empires (2010), and Who Controls the Internet?: Illusions of a Borderless World (2006), which he co-authored with Jack Goldsmith. Wu was a contributing opinion writer for The New York Times and also has written for Slate, The New Yorker, and The Washington Post. He once explained the concept of net neutrality to late-night host Stephen Colbert while he rode a rollercoaster. He has been named one of America's 100 most influential lawyers by the National Law Journal; has made Politico's list of 50 most influential figures in American politics (more than once); and has been included in the Scientific American 50 of policy leadership. Wu is a member of the American Academy of Arts and Sciences. He served as a law clerk for Justice Stephen Breyer of the U.S. Supreme Court and Judge Richard Posner of the U.S. Court of Appeals for the 7th Circuit.Named as one of the "100 most connected men" by GQ magazine, Andrew Keen is amongst the world's best known broadcasters and commentators. In addition to presenting the daily KEEN ON show, he is the host of the long-running How To Fix Democracy interview series. He is also the author of four prescient books about digital technology: CULT OF THE AMATEUR, DIGITAL VERTIGO, THE INTERNET IS NOT THE ANSWER and HOW TO FIX THE FUTURE. Andrew lives in San Francisco, is married to Cassandra Knight, Google's VP of Litigation & Discovery, and has two grown children.Keen On America is a reader-supported publication. To receive new posts and support my work, consider becoming a free or paid subscriber. This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit keenon.substack.com/subscribe

The episode you've been waiting for is here: our Top Takeaways of 2024. Listen to some of the world's smartest, most influential thinkers, business leaders, innovators, technologists, and other newsmakers — including Eric Schmidt, Mellody Hobson, Atul Gawande, Fareed Zakaria, Jill Abramson, Stephen Breyer, and others. You don't want to miss this episode.

Amarica's Constitution proudly celebrates four years of ambitious inquiry with a long-promised and very honored guest, former Associate Justice of the US Supreme Court, Stephen G. Breyer.  Justice Breyer placed no restrictions on our questioning, and we engaged him in a frank discussion on a variety of topics related to his time on the Court, and then we switched to his current book: Reading the Constitution: Why I Chose Pragmatism, not Textualism.  As you can imagine, Professor Amar has some opinions on the matter as well.  The discussion ranged far, from the French essayist Montaigne to 20th century American pragmatists, as Justice Breyer's broad range is displayed in a way few have seen.  We take our time, and the Justice generously indulged, for an in-depth look at the thinking that helped shaped the bench for decades. This podcast will be available on YouTube video as well as the usual audio feeds found here; we will provide  information on accessing the video in subsequent podcast episodes, as well as on our Instagram feed - check it out.  CLE credit is available through podcast.njsba.com.

As the Biden Administration winds down, pressure is being applied to the President, asking him to order the National Archivist to certify the Equal Rights Amendment as part of the Constitution.  Senator Gillebrand has submitted a letter, co-signed by more than 40 Senators, making arguments that harken back to the resolution that accompanied the 1972 amendment, when Congress purported to place a time limit on the amendment's ratification.  Also, some state legislatures withdrew their ratification after initially approving it, and the Senators are crying foul on this.  We take a deep dive into the arguments put forth by the amendment's implementation advocates, the history of other amendments that faced analogous issues, including the great 14th amendment, and Professor Amar's own scholarship on the matters.  Meanwhile, our 4th anniversary is approaching, and we preview the gala event - with Justice Breyer getting behind the microphone with us before you know it!  CLE credit is available from podcast.njsba.com.

Could Republicans in the House conspire with a 2025 President Trump to manufacture a forced Senate recess in an effort to bypass the advise and consent appointments process?  The much-anticipated article in The Atlantic has been published, to widespread approval.  We proudly present all three co-authors of this article in a wide-ranging, nuanced, fascinating discussion, as Professors Josh Chafetz, Tom Schmidt, and of course Akhil Amar reunite to take us from Restoration England to the chambers of the Supreme Court where Professor Schmidt clerked for Justice Breyer, the author of the principal case on recess appointments, NLRB v. Noel Canning, in 2014.  We hear how that case has lessons, and yet is distinguished, from the scenario here, and what might happen if the contemplated maneuvers, deemed grossly unconstitutional by our experts, try it anyway.  CLE credit is available from podcast.njsba.com.

C dans l'air l'invité du 7 novembre avec Stephen Breyer, ancien juge de la Cour suprême, auteur de "interpréter la constitution américaine" publié aux éditions Odile Jacob. Donald Trump a remporté l'élection présidentielle américaine mercredi 6 novembre, en s'imposant largement face à Kamala Harris. Ce résultat, fruit d'une campagne brutale, soulève bien des questions sur l'évolution de la démocratie américaine.Décryptage de notre invité Stephen Breyer, ancien juge de la Cour suprême, ce soir à 17.25 sur France 5 !

In this episode of Passing Judgment, we engage in a thought-provoking discussion with retired Justice Stephen Breyer. Host Jessica Levinson delves into Breyer's critique of textualism, focusing on whether "costs" in legal contexts should include educational experts. The episode also touches on public trust in the judiciary, the role of the First Amendment, and the complexities of precedent. Breyer's engaging stories and reflections provide a comprehensive perspective on modern judicial challenges.Here are three key takeaways you don't want to miss:Critique of Textualism and Originalism: Breyer critiques the methodologies of textualism and originalism, which focus strictly on the text and original meaning of the law. He highlights the limitations of these approaches, given the evolving societal and political contexts since the laws were written.Pragmatism in Constitutional Interpretation: Advocating for a pragmatic approach, Breyer emphasizes the importance of interpreting the Constitution by considering historical context, consequences, and inherent values such as democracy and human rights. Supreme Court's Political Perception: Addressing public concerns about the Supreme Court's political influence, especially with the conservative supermajority appointed by Republican presidents, Breyer contends that legal analysis should be distinct from political thought. Follow Our Host: @LevinsonJessica

Rarely does a former Supreme Court justice reveal what's on their mind like Stephen Breyer. Listen to what this wise man says about the tug of war between constitutional originalism and contextualism, political partisanship on the court, structural reforms such as term limits, the invaluable lesson he learned from Senator Ted Kennedy, and more.

The first Monday of October marks the start of a new term in the Supreme Court. As the Justices prepare to hear cases throughout the term, Shannon revisits conversations with Justice Neil Gorsuch and retired Justice Stephen Breyer to hear how Justices prepare for hearings and the invaluable need to communicate across the aisle for the betterment of the people.   Later, Justices Breyer and Gorsuch discuss how crucial the role of Supreme Court justices is to the stability of the nation. Learn more about your ad choices. Visit megaphone.fm/adchoices

durée : 00:38:25 - France Culture va plus loin (l'Invité(e) des Matins) - par : Guillaume Erner, Isabelle de Gaulmyn - Ancien juge de la Cour Suprême pendant près de 30 ans, Stephen Breyer revient sur l'évolution sur la démocratie américaine et les derniers arrêts de la Court Suprême. - réalisation : Félicie Faugère - invités : Stephen Breyer Juriste américain, ancien membre de la Cour Suprême des États-Unis

durée : 02:29:39 - Les Matins - par : Guillaume Erner, Isabelle de Gaulmyn - . - réalisation : Félicie Faugère

Ketanji Brown Jackson was confirmed as the 116th Associate Justice of the United States Supreme Court in 2022. She earned both her undergraduate and law degrees with honors from Harvard University, before serving as a clerk for three federal judges, including Justice Stephen Breyer, whose seat on the Supreme Court she would ultimately go on to take. Jackson's career spans both the private and public sectors, including serving as Vice Chair and Commissioner of the U.S. Sentencing Commission, and as an assistant federal public defender.  On September 10, 2024, Jackson came to the Sydney Goldstein Theater in San Francisco to talk to University of California, Berkeley Professor john a. powell on the occasion of her just-published memoir, Lovely One. The book traces her family's ascent from segregation to her confirmation as the first Black woman ever to sit on the Supreme Court.

Supreme Court Associate Justice Ketanji Brown Jackson remembers her first brush with the national spotlight as "white hot." When President Biden nominated her in 2022 to replace retiring Justice Stephen Breyer, it kicked off an intense confirmation process for Jackson, the first Black woman ever appointed to the Supreme Court. In her new book, Lovely One: A Memoir, Jackson charts her path from the segregated South to the country's highest court. In today's episode, Justice Jackson sits down with NPR's Juana Summers to discuss whether the Supreme Court should adopt a more binding ethics code, the court's ability to deliver a credible opinion on this year's election and her family life, including her daughter's autism diagnosis.To listen to Book of the Day sponsor-free and support NPR's book coverage, sign up for Book of the Day+ at plus.npr.org/bookofthedayLearn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

We contiune our second ammendment discussion in light of the recent attempt on the life of the former president. We also talk about the dismissal of the documents case.  New York State Rifle and Pistol Association, Inc. v. Bruen, 142 S.Ct.2111 (2022):  https://www.supremecourt.gov/opinions/21pdf/20-843_new_m648.pdf   To review Justice Breyer's list of scholars who have documented the historical errors within the Heller decision, see Bruen  at pp.  2177-2179.   McDonald v. City of Chicago, 561 U.S. 742 https://supreme.justia.com/cases/federal/us/561/742/   For more information on the decision by Judge Aileen Cannon, see Joyce Vance, "A Bad Decision" at: https://joycevance.substack.com/p/a-bad-decision?utm_campaign=email-half-post&r=3en6fu&utm_source=substack&utm_medium=email https://www.npr.org/2024/07/15/g-s1-10379/trump-documents-case-dismissed  

In a special live recording from San Francisco in late May, Sarah interviewed former Supreme Court Justice Stephen Breyer about his judicial philosophy, the future of the court, and accepting dissent in America. The Agenda: — How snails explain the Supreme Court — To recuse or to not recuse? — The Court's public approval and its response to public approval — Rule of law — Unenumerated rights — Humor in the Court — Audience questions Show Notes: — Stephen Breyer's Reading the Constitution — The Education of Henry Adams — Edith Wharton's The Age of Innocence — Willa Cather's The Professor's House — Mahanoy Area School District v. B.L.: The “Angry cheerleader” SCOTUS case — Brown v. Board of Education & The Little Rock School Integration Crisis — District of Columbia v. Heller — Poe v. Ullman Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch's offerings—including Sarah's Collision newsletter, weekly livestreams, and other members-only content—click here. Learn more about your ad choices. Visit megaphone.fm/adchoices

Justice Stephen G. Breyer returns to the City Arts & Lectures stage to discuss his first book since retiring from the United State Supreme Court, Reading the Constitution: Why I Chose Pragmatism, Not TextualismDuring his 28-year tenure on the United States Supreme Court, which began with his appointment by President Bill Clinton in 1994, Justice Stephen G. Breyer authored 551 opinions. As a liberal voice in the federal judiciary, he has played a key role in reforming criminal sentencing procedures, protecting the environment, and preserving abortion rights. In 2022, Justice Breyer was succeeded by Justice Ketanji Brown Jackson, his former law clerk. The Justice credits his time at Lowell High School in San Francisco for helping to instill in him a commitment to civic engagement. Reading the Constitution: Why I Chose Pragmatism, Not Textualism is his first book since retiring from the Supreme Court.Sarah Isgur is a legal analyst at ABC News and a staff writer for The Dispatch. She was a leader in political campaigns for Carly Fiorina, Ted Cruz, and Mitt Romney, and was the spokeswoman for The Department of Justice under former President Donald Trump. Isgur now hosts the legal podcast Advisory Opinions and is the “R” panelist for KCRW's Left, Right, & Center.

Sarah gives us a taste of her interview with retired Supreme Court Justice Stephen Breyer before she and David dive into the latest SCOTUS ruling on racial gerrymandering. The Agenda: —Justice Breyer and the Major Questions Doctrine —Alexander v. South Carolina State Conference of the NAACP —Conduct vs. speech and Morgan Wallen's Nashville bar —Random swipes at text, history, and tradition from David —Approving a SCOTUS nominee from opposing parties? —Amending the amendment process —Codifying the judicial filibuster —Justice Samuel Alito flag watch Show Notes: —Previous AO episode on voting rights in Alabama —City of Austin v. Reagan National Advertising of Austin, LLC —Equal Protection Clause —Section 2 of the Voting Rights Act Learn more about your ad choices. Visit megaphone.fm/adchoices

What is a textualist, and why does that judicial philosophy dominate the current U.S. Supreme Court? Join us for a special online event as recently retired Supreme Court Justice Stephen Breyer gives us his provocative analysis that deconstructs the textualist philosophy of the current Supreme Court's supermajority and makes his case for a better way to interpret the Constitution. Textualists claim that the right way to interpret the Constitution and statutes is to read the text carefully and examine the language as it was understood at the time the documents were written. This, however, is not Justice Breyer's philosophy, nor has it been the traditional way to interpret the Constitution since the time of Chief Justice John Marshall. Justice Breyer recalls Marshall's exhortation that the Constitution must be a workable set of principles to be interpreted by subsequent generations. Most important in interpreting law, says Breyer, is to understand the purposes of statutes as well as the consequences of deciding a case one way or another. He illustrates these principles by examining some of the most important cases in the nation's history, among them the Dobbs and Bruen decisions from 2022 that he argues were wrongly decided and have led to harmful results for our country. Learn more about your ad choices. Visit megaphone.fm/adchoices

MSNBC's Ari Melber hosts "The Beat" on Wednesday, April 1, and reports on week three of Donald Trump's criminal trial and an abortion ban in Florida that has officially taken effect. Plus, Melber reports on his recent interview with retired Supreme Court Justice Stephen Breyer. Chai Komanduri, Jed Handelsman Shugerman, Renato Mariotti and Molly Jong-Fast join.

Retired Supreme Court Justice Stephen Breyer discusses the reversal of Roe v. Wade, attacks on judges, and his views on law and a series of consequential issues with MSNBC's Ari Melber in this installment of 'The Summit Series with Ari Melber,' featuring discussions with leaders at the summit of their fields.

MSNBC's Ari Melber hosts "The Beat" on Monday, April 29, and reports on new state charges for Donald Trump's failed coup, Trump's legal battles, and the White House Correspondents dinner. Plus, retired Supreme Court Justice Stephen Breyer joins The Beat. Tony Schwartz, Neal Katyal and Manny Arora also join.

Textualism, which sees a legal system's original structure as immortal, is the dominating philosophy on the court today. But retired Supreme Court Justice Stephen Breyer argues pragmatism, which considers consequences of legal decisions, is the better mindset. About: On Point is WBUR's award-winning, daily public radio show and podcast. Every weekday, host Meghna Chakrabarti leads provocative conversations that help make sense of the world.

On Thursday March 28 at the NCC, Jeffrey Rosen sat down with Justice Stephen Breyer to discuss his new book, Reading the Constitution: Why I Chose Pragmatism, Not Textualism. Justice Breyer deconstructs the textualist philosophy of the current Supreme Court's majority and makes the case for a better way to interpret the Constitution based on pragmatism.   Resources Justice Stephen Breyer, Reading the Constitution: Why I Chose Pragmatism, Not Textualism (2024)   Questions or comments about the show? Email us at podcast@constitutioncenter.org.  Continue today's conversation on social media @ConstitutionCtr and #AmericasTownHall Sign up to receive Constitution Weekly, our email roundup of constitutional news and debate, at bit.ly/constitutionweekly.  You can find transcripts for each episode on the podcast pages in our Media Library. 

Both of the boys are in studio this week, and thank god, it's a big ol' show. Donald Trump gets bailed out of his bail-bond by a billionaire who made his bones on sub-prime car loans. Because of course he is. Then, the Right is reacting in a totally normal and not-at-all weird way to the solar eclipse, AI is here to save fast-food, retired Supreme Court Justice Stephen Breyer chimes in with an ode to going to the opera with his best friends - the Justices who want to destroy democracy. To hear the full episode and support The Muckrake Podcast, become a patron at Patreon.com/muckrakepodcast. You'll get an extra show every week, get to hang out during live shows, and get all the exclusive election shows and analysis. Learn more about your ad choices. Visit megaphone.fm/adchoices

James and Al critique coastal elitism, explore how the Israel-Gaza war ends, and welcome Justice Breyer to discuss the role of the Supreme Court and its judges.  They compare textualism and pragmatism using Justice Scalia as a foil, weigh the factors that go into reading the Constitution, debate politics' place on the bench, review the ethics governing the court, and look at why public approval of the judicial branch is plummeting.  In their conversation they also break down the language of the 2nd Amendment, explain how history is the ultimate arbiter of past decisions, and call on us to listen to one another to find compromise where we can. Email your questions to James and Al at politicswarroom@gmail.com or tweet them to @politicon.  Make sure to include your city, we love to hear where you're from! Watch James Carville Explains on YouTube Playlist James Carville & Al Hunt have launched the Politics War Room Substack Get More From This Week's Guest: Justice Stephen Breyer: SupremeCourt.gov | Oyez | Harvard | Author of “Reading The Constitution” & Other Books Please Support Our Sponsors: Miracle Made: For 40% off high quality self-cooling sheets plus an extra 20% off with 3 free towels, use promo code WARROOM when you go to trymiracle.com/warroom

Foreign aid workers feeding starving people are the latest to be killed in Israel's war on Gaza. Prime Minister Benjamin Netanyahu called the deadly airstrike a “tragic accident,” which “happens in war,” and vowed to investigate. The seven who lost their lives worked for famed chef Jose Andres' organization World Central Kitchen, they came from all over the world to help – Poland, Canada, Australia, the UK. One was Palestinian. As United Nations Humanitarian Chief Martin Griffiths has been a key figure in pressing for vital aid to Gaza. After three years in the role, advocating and acting all over the world's conflict zones, he is stepping down in June due to ill health. His career with the UN, the British diplomatic service and many humanitarian organizations spanned decades. Martin Griffiths joined the program from Geneva, in his first interview since announcing his retirement from the UN.  Also on today's show: Evgenia Kara-Murza, Wife of jailed Russian Opposition Figure Vladimir Kara-Murza; Stephen Breyer, Retired Supreme Court Justice  Learn more about your ad choices. Visit podcastchoices.com/adchoices

This week on the show, Fareed speaks with former State Department director of policy planning Richard Haass about the widening rift between the U.S. and Israel over the war in Gaza and settlements in the West Bank.   Then, The Atlantic's Graeme Wood joins to sift through the many theories about who was behind the recent terror attack in Moscow. Next, former Supreme Court Justice Stephen Breyer talks to Fareed about his new book, “Reading the Constitution: Why I Chose Pragmatism not Textualism,” and his views on the current court's conservative majority and its approach to lawmaking.  Finally, Bloomberg News' Saleha Mohsin discusses the role of sanctions in U.S. foreign policy, and the supremacy of the dollar in the global economy.  GUESTS: Richard Haass (@RichardHaass), Graeme Wood (@gcaw), Stephen Breyer, Saleha Mohsin (@SalehaMohsin) Learn more about your ad choices. Visit podcastchoices.com/adchoices

On Thursday March 28 at the NCC, Jeffrey Rosen sat down with Justice Stephen Breyer to discuss his new book, Reading the Constitution: Why I Chose Pragmatism, Not Textualism. Justice Breyer deconstructs the textualist philosophy of the current Supreme Court's majority and makes the case for a better way to interpret the Constitution based on pragmatism.   Resources Justice Stephen Breyer, Reading the Constitution: Why I Chose Pragmatism, Not Textualism (2024)    Questions or comments about the show? Email us at podcast@constitutioncenter.org.   Continue today's conversation on social media @ConstitutionCtr and #WeThePeoplePodcast. Sign up to receive Constitution Weekly, our email roundup of constitutional news and debate, at bit.ly/constitutionweekly.  You can find transcripts for each episode on the podcast pages in our Media Library. 

In part 2 of Red Eye Radio with Gary McNamara and Eric Harley, former Justice Breyer is promoting an authoritarian Supreme Court as moral. California fast food chains laying off workers ahead of the upcoming wage mandate.  For more talk on the issues that matter to you, listen on radio stations across America Monday-Friday 12am-5am CT (1am-6am ET and 10pm-3am PT), download the RED EYE RADIO SHOW app, asking your smart speaker, or listening at RedEyeRadioShow.com Learn more about your ad choices. Visit podcastchoices.com/adchoices

We round up our analysis of the opinion in Trump v. Anderson with Justice Barrett's concurrence.  All of this has raised many questions, particularly in light of the Court's errant reasoning and other shenanigans.  And it turns out that many of the best questions come from you, our audience!  So we turn to those as well, both about Section 3, and other matters as well.  We also look at the news media's latest interesting directions, including takes on Justice Breyer's new book and seeds planted by Professor Amar bearing fruit.  CLE credit is available from podcast.njsba.com

When interpreting the Constitution, the dangers of relying solely on the words and what they meant at the time, without taking into account the purpose and values expressed in those words.

An appeals court threw Donald Trump a lifeline by cutting the bond for his New York fraud conviction, Rep. Marjorie Taylor Greene moved to remove Speaker Mike Johnson over keeping the government open, and Boeing is replacing its top leadership after a series of mishaps. Meanwhile… The makers of Duvel beer in Belgium suffered a cyberattack, Italy apparently enforces its traffic laws, and scientists are urging people not to vape because of serious effects on mental health. Retired Supreme Court Justice Stephen Breyer tells Stephen that one reason he wrote his new book, “Reading The Constitution,” is to convey information about how the Supreme Court justices approach their legal decision-making. Learn more about your ad choices. Visit megaphone.fm/adchoices

For as long as America has had a constitution, there's been debate over how to interpret it. That's particularly true when it comes to hot-button Supreme Court cases. For nearly 30 years, Stephen Breyer served on the nation's highest court, deciding on cases with ramifications still being felt across the country today. Amna Nawaz spoke with Breyer about his new book, "Reading the Constitution." PBS NewsHour is supported by - https://www.pbs.org/newshour/about/funders

Former Republican National Committee Chair Ronna McDaniel exclusively joins Meet the Press to discuss her time leading the RNC. Former Supreme Court Justice Stephen Breyer reflects on the state of U.S. democracy and the decision to overturn Roe v. Wade. Stephen Hayes, Kimberly Atkins Stohr and Chuck Todd join the Meet the Press roundtable.

Sarah and David discuss Justice Amy Coney Barrett's opinion in Lindke v. Freed—released last week by the Supreme Court—and the test for state action on social media. Is there a constitutional right to commenting on state officials' accounts? The Agenda: -Predicting SCOTUS votes for Net Choice -Slime in the ice machine -Justice Elena Kagan's compelling reasoning for saying “and” means “or” -Terrorism distortion and special needs exceptions to the Fourth Amendment -The 5th U.S. Circuit Court of Appeals is overwhelmed -An emergency petition on the Texas A&M drag show case -Don't say 'Don't Say Gay' when referring to this lawsuit -Justice Stephen Breyer and choosing pragmatism and not textualism Learn more about your ad choices. Visit megaphone.fm/adchoices

In this week's episode, we are sharing audio from a program hosted live from Arizona State University's Sandra Day O'Connor College of Law and presented in partnership with ASU's Center for Constitution Design. The program centered around a discussion of the National Constitution Center's landmark Constitution Drafting Project, and featured members from each project team— Georgetown Law's Caroline Fredrickson of Team Progressive, the Goldwater Institute's Timothy Sandefur of Team Libertarian, and ASU's Ilan Wurman of Team Conservative. They discuss their approaches to constitution drafting, review points of consensus and disagreement, and reflect on the importance of cross-partisan dialogue in today's constitutional environment. Jeffrey Rosen, president and CEO of the National Constitution Center, moderates. This program was presented live on February 1, 2024.  Resources:  National Constitution Center, Constitution Drafting Project  National Constitution Center, Constitution Drafting Project, “The Proposed Amendments” (PDF)  Center for Constitutional Design at Arizona State University's Sandra Day O'Connor College of Law, 2024 Model Constitutional Convention  NCC America's Town Hall program, Justice Stephen Breyer on the Importance of Civics Education (Oct. 6, 2022)  Jeffrey Rosen, The Pursuit of Happiness: How Classical Writers on Virtue Inspired the Lives of the Founders and Defined America (2024)  Erwin Chemerinsky, We the People: A Progressive Reading of the Constitution for the Twenty-First Century (2018)  The Preamble to the Constitution  The Declaration of Independence  Citizens United v. Federal Election Commission (2010)    Questions or comments about the show? Email us at podcast@constitutioncenter.org.  Continue today's conversation on Facebook and Twitter using @ConstitutionCtr.  Sign up to receive Constitution Weekly, our email roundup of constitutional news and debate, at bit.ly/constitutionweekly.   You can find transcripts for each episode on the podcast pages in our Media Library.