Harvard Law Faculty Share Why I Changed My Mind

Well, good afternoon everybody and thanks for coming out for what is the fifth installment of why I changed my mind. We have with us today three people that I think could be said at least at times to share the label of iconoclast. Um, feel free to fight that, but you’ll just be proving my statement. And uh Suggesting you’re an iconoclast.

[laughter]

But seeing then where folks have changed their mind and for that we’re thinking about a view earnestly possibly quite a while evidence-backed or argument-backed or instinct- and visceral-backed and what might have an occasioned a change in that view. So, today we’re going to hear from um Ambassador Samantha Power Professor Nicholas Buoy and Professor Yochai Benkler, all of whom teach here as you may be familiar at Harvard Law School. So Sam, great to start with you. Something on which you changed your mind and why.

Okay, thank you so much, Z. Um, Jonathan and I went to college together. We had a radio show together. Known him since he was this tall. Um, and I’m uh super pleased to do anything that he invites me to do and and really honored to be with my my co-panelists and can’t wait to hear uh what they have to say.

This of course was way harder than it should have been. Um, I think if I were a more open-minded, open-hearted person, I would have had dozens of um possibilities to choose from. I asked my husband, Professor Cass Sunstein, what did he think I had changed my mind on. And there were there was a very long pause. [laughter] Very, very might still be that pause. Was he thinking about what not to say as much as he was thinking about what to say? But he said, “Well, you were against a long-term relationship once. You changed your mind.”

[laughter]

So, that was good. And then he said, and this is really true, he said, “You used to hate Bob Dylan and now you go crazy for Bob Dylan.” So, that is very true and that is the force of repetition of having someone play Bob Dylan around you for your entire marriage and then you have a son and then your son from the age of five is playing Bob Dylan and quoting Bob Dylan lyrics to you. There was just no I had no option other than to to fall for Bob Dylan. But what I thought about a lot about in sort of politics and public policy is the belief I have had and that others have shared and others that I’ve been influenced by and I’m very interested in what my fellow panelists think about this, but uh the idea that you should not give oxygen to a lie. That is if something is said about you or about something you believe in if you quote elevate it by rebutting it you end up giving it more prominence. You repeat something uh and that just uh creates social social scientists talk about the illusory truth effect through repetition. Uh you’re just repeating it sometimes with a bigger platform even than the person who has told the lie in the first place.

And I’ve lived this personally in you know, really challenging times after the first well, first as part of the Obama campaign I watched Senator Obama, candidate Obama grapple with the birther lies and the view entirely at the beginning was don’t give oxygen to the birther lies. It’s just it’s it’s too ridiculous. Like um but you might some of you might remember that eventually the birth certificate was actually produced, but it was very late. Um, I don’t know that producing it sooner or again we’ll never be able to do the counterfactual um and I’m sure studies have been done about that specifically.

I lived it after uh the first this the two Obama terms that I served in in Trump one where this lie was uh recyclable was propagated and then recycled and amplified about me doing something called unmasking which was a it just a practice within the intelligence community that I had never heard of and had no idea even what it was and when I first saw it I said, “What what is that?” And I I Googled to even understand what it was and it went completely viral. And on no occasion really did I other than when I under uh under oath when challenged by members of Congress about my alleged sinfulness around this practice that I’d never heard of or never done um was I able to actually respond and but by then uh as Mark Twain says um the lie had traveled halfway around the world before the truth had the chance to put its boots on.

So, um and when I was USAID administrator the first time I really encountered a lie going viral was in Ethiopia where we were providing massive amounts of humanitarian assistance in the context of a conflict um uh in Tigray. Uh this is the first year or two uh specifically when the conflict was raging and USAID was accused of pretending to provide aid but actually providing weapons to fighters. And again I sat down with my communications team, don’t give oxygen, you know, we can’t but bottom line is I have changed my mind. We uh have to risk uh there and I’m sure there circumstances one has to be very clinical about what the right circumstances are and it I suppose it depends on the the potential for something to to pick up speed and steam.

But luckily being married to Professor Sunstein, of course people say there’s an app for everything. Um if you’re married to Cass, there’s a empirical study for absolutely everything that can be uh quoted uh at will and you would think this would have influenced me before. Um but uh there is something called the elusive backfire effect which is a a little bit of a correction. It’s a it’s a modif- it’s a cabined correction for this idea that repeating something as part of a rebuttal necessarily sort of strengthens the falsehood rather than effectively rebutting the lie. Um and the uh the the the the first idea was the backfire effect which is this idea of giving something oxygen is that when you repeat it it just makes people believe it more strongly. And there were studies that look like they showed that, but those studies and even the authors of those studies have come forward and acknowledged uh that it is very case-specific uh but that in fact it is possible to get out in front of something to correct uh something.

Obviously people’s cognitive and emotional investment is going to have a lot to do with whether or not you are effective. The sourcing is going to matter a great deal. Cognitive dissonance is something motivated reason. We’re all familiar with it. We all probably practice it at times. Um but I like, and this is the last thing I’ll say Jonathan, which is George Loewenstein has tried to be who’s wonderful in every way but has tried to be very constructive about how to rebut a lie and he talks about as one idea the truth sandwich. Where you start with the truth you reference the falsehood and then you always make a practice as you speak about something to repeat the truth much more often than the lie. Um but I think my little arc such as it is is one that so many politicians and public figures and and others I’m sure even being doxxed uh in their own sort of social media are grappling with. So, I feel like this this question of where these lines belong and which categories of lie one should come out proactively and seek to rebut whether in your truth sandwich or some other way. Um it feels like this is a going to be a burgeoning sadly a burgeoning area of social science and public policy research.

Thank you, Sam. One quick question. Um kind of has to do with condiments on the truth sandwich. Which is you gave an example of something that’s just the birther stuff, an outright lie. Oftentimes there’s some nugget underneath that has been put into a funhouse mirror and distorted etc. etc. for which you were rebutting it on a panel in an academic environment you would say something like, “Well, to be sure but but that’s kind of out of context because but but And in the public eye in the public sphere right now is it possible to put those kinds of condiments on? Or I remember a phrase probably of the same vintage as don’t give oxygen to the lie, which is if you’re explaining you’re losing. And I’m wondering how you might reconcile the it’s complicated, but I assure you the takeaway that you’re hearing is probably wrong versus absolutely not, never, everybody is a scoundrel, the kind of rebutting that we see by some folks in the

Yeah, well, I mean, the first time I even thought about my own journey was preparing today for this. So, I have no sophisticated account of sort of the boundaries and when and where and so forth and how fulsome to be and all of that. I but I I mean, what I I really believe that this is going to be an incredibly important field of study. So, it’s but a couple associations with what you’ve asked. I’d say first, in an era of deep fakes, that concern might be quaint in so far as like no matter what they could just have you say whatever they wish you to say. Um and maybe some of the answer in a world where things will be taken out of context, they will take the clip um uh of you saying what it isn’t and and leave out the part where you correct it. So, I think number one, if you’re in public, you have to be very careful about your wording.

Um I I’m again, I’m old enough to remember, you know, standing with a sign that said bring back our girls about the uh apprehension of girls in Nigeria from Boko Haram. And then I don’t know how many of you remember this, maybe you have to be have been felled by it yourself, but uh in the Twitter age, people just put on the sign whatever they wanted to ascribe to you. So, it became a thing like never hold the sign again because they’ll just write, you know, um Don’t wear a t-shirt. you know, or or or something like that. Exactly. Don’t wear a t-shirt and which is crazy again cuz they can put a sign in your hand and they can do all kinds of things.

But I was my other association what you said is that the full context also uh is warranted but requires, you know, door-to-door myth-busting. And we do this is a very efficient venue to come out in public and I could call a press conference when I was UN Ambassador at USAID and I could bring bring journalists in and I could um and if there were TV cameras or or clips, they could be manipulated again, they could be manipulated without me saying certain things, but but I do think we in in a rush, in haste, undervalue the simple act of calling, you know, chairs, Republican chairs in particular, those who might be most prone if I’m serving a Democratic administration to see the lies and to believe the lies and or their constituents might and but bandwidth is the scarcest commodity in public life and so the temptation is to just go and do it and issue it and hope that I mean, the temptation to do nothing at all and not give it oxygen, but to the degree that you’re going to be proactive, one tends to want to do it at a macro level, but actually going door-to-door may actually protect against what you’re describing better than just trying to do it in one fell swoop and actually have people uh being ambassadors for your truth behind the scenes, which will be easier for them anyway than any public um rebuttal of something that has gone viral in their world. Which is nicely, I think, presuming a level of good faith within the public sphere and its leaders, even if the leaders are disagreeing or or politically very much aligned against one another.

Um that if in fact it’s not true whatever the it is, all right, they’re not going to pump the bellows on it. Well, and I would say my own experience, including recently with all of the lies about USAID, which are just so ludicrous that um and so fringe and then just did pick up that speed, but my experience is that it really depends on the overall political climate. Uh in the context of USAID, people who knew so well what USAID did and certainly what we didn’t do, um did not feel in the immediate wake of Trump’s second election any courage of their convictions to stand up in the herd and say those things. And whereas I think even a couple months after the demolition occurred, the climate began to change, you saw a little more pluralism within the So, again, I think these questions are hard to settle in the abstract. There is a pluralism in people’s hearts and in their minds, but that second step of people stepping forward and voicing what they know to be true or what they can be convinced is true if they trust the messenger. Uh um you you know, it’s it’s very context-specific, but many fan the bellows and wish to fan the bellows and that’s time impervious, but to use the USAID example, we were an agency that was 90% earmarked by Congress. Congress the House and the Senate were both controlled by Republicans, that means 90% of our the the earmarks, all 90% of the funding we spent was at the direction of Republicans and yet those same Republicans just a few months later, you know, kind of ducked and covered in that climate fearing that they too would be doxxed by Elon Musk or whoever. So, so again, it’s a complicated anthropology. Got it.

All right, thank you, Sam. Depressing one. Indeed.

Um well, Professor Bouie is going to give us an optimistic take, question mark? I’m full of optimistic takes, as you know.

[laughter]

Um so, thank you all for for being here. Thanks for my co-panelists and for hosting this event and for all of you in the audience. I’m very curious of why you are in the room and what you were hoping to get out of this conversation. Um but one thing that I I do see is a a ton of current and former students, which I’m always proud to see and to see you develop and I think one thing that I have certainly changed my mind on that will not come as a surprise to any of you is my theory of change. Um and I don’t think it will come as a surprise to my students because I just talk about theories of change all the time. Um it it it reflects this kind of core to my being that I have struggled with uh throughout my entire career. And just to give an illustration, um when I was in college, I spent a lot of time with uh union that represented um technical workers at the college as well as the graduate students who at the time were unionizing. Uh it was Unite Here and Unite Here mainly represents um hotel and uh other technical workers.

And for a summer, I um went with Unite Here organizers in Northern Virginia as they organized uh hotel workers. And Northern Virginia is right across the river from DC and most of the hotels in DC are unionized, but most of the hotels in like Crystal City are not. And it was really striking to see the difference in just quality of life between uh someone who cleans rooms in a DC hotel versus in a Crystal City hotel. It is just night and day, just the number of rooms per day, what kind of shoes people could wear, the pay, the sense of dignity and feeling like they belong, just every aspect of life appeared to be better for people in a unionized hotel.

And at the time, Virginia is this right-to-work state whose laws made it very easy for employers to fire people who were suspected of unionizing. So, all of the organizing took place in secret. The kind of uh conversations we were having were at people’s homes or kind of behind the scenes rather than um on the shop floor on like, you know, the third floor of a Marriott.

And I came to law school in part to try to figure out like what can we do to make the situation better? Like I can see the difference that unionization can have for a hotel worker. I can see that Virginia laws are a real problem. I think law school is a place in which I will learn how to change those laws. And the theory of change that I came to law school anticipating to learn about was litigation. Um my mom was a former civil rights litigator. She spent a lot of her career at the NAACP Legal Defense Fund in the 1980s and um she described that as her favorite job she’d ever had.

This is Professor Lani Guinier. Yeah, she she ended up teaching here and still said that was a much better job.

[laughter]

Um in part because she thought in there we were on a team or like working together, we’re solving problems together and here is just a bunch of people with big egos. I don’t really like that. Um but, you know, coming into here, the kind of um portraits on the walls were people like Thurgood Marshall or Constance Baker Motley. Motley was my mom’s hero. Um she was one of the lawyers who litigated Brown v. Board of Education. She went on and had an extremely successful career arguing before the Supreme Court uh as did Marshall, obviously. Um Ruth Bader Ginsburg, even people like Antonin Scalia and had huge effects changing the world around them through courts, through writing briefs and arguing before a judge.

And when I got here, I found that I was actually pretty good at that. I I did Ames, we we won, and I was like, oh good, this is really, you know, like the career I can envision for myself. Um, and all of my classes conveniently mainly taught law from the perspective of judges. We basically read judicial opinions. And so, I feel like the skill that I developed was how to write like a judge, argue before a judge. I ended up clerking for judges.

And so, there there’s a lot baked into the law school experience in which the theory of change that is most promoted is litigation. How to draft a argument about how to interpret the law to a judge with the goal being that the judge will agree with your deft, you know, presentation and the law will be better. So, I came out of law school basically with well equipped to change the Virginia law by arguing that the law violated the 14th Amendment. That was my, you know, theory of change applied.

And at the same time I had doubts. So, so one of the doubts is I obviously would not prevail in an argument that a right to work law violates the 14th Amendment. Why? Well, for one thing, the current judiciary is not about to interpret the 14th Amendment that way. The the theory of change that I was really embodying and learning the skill set behind was it’s built around having a favorable judiciary. It’s just really hard to pursue litigation as a way of changing law if judges hate you. You you kind of have to have as an assumption that you have like these good faith people on the bench who are amenable to the kind of arguments you are making. And if they are not, then it’s the equivalent of banging your head on a wall, which might be, you know, fun for some people, but that’s not the kind of thing I wanted to spend my career doing.

Um, the other thing is you you need good laws on the books. Absent those sorts of things to interpret, then it can be also pretty challenging to convince a judge to agree with you. And I had also while in law school encountered a few kind of threads of alternative theories of change. One came from a couple of articles that I read by Derrick Bell, who also was an NAACP Legal Defense Fund lawyer.

Um, and one of his articles was called Serving Two Masters. And he was describing his experience as an LDF lawyer in the 1970s and noting that um, any anyone who is trying to use litigation to change the law and not simply represent their clients ultimately has two masters. One is the sort of goal I would like the law to be better, and the other is your client who wants something more material and immediate. And he noted that he was representing a lot of parents whose kids were going to these really badly funded schools. And LDF’s ideological vision was the solution is integration. But these sorts of integration lawsuits might take a decade or longer. These kids are growing up and graduating. And a lot of the parents were saying, I would be fine with my kid going to this school if it were better resourced. I don’t actually need integration. What you’re pursuing is different from what I care about.

And so, there’s this tension between using litigation as a vehicle for achieving certain goals about changing the law as while representing clients who may have different interests. He also wrote another article called the interest convergence dilemma in which he was asking, why does the Supreme Court that decided Brown in 1954 not seem to be the same court that is deciding cases in the 1970s and ’80s? Before, it seemed to be really into this idea of desegregation, and now it seems really opposed to it. So, what has changed as far as the court is concerned? And his answer was roughly, well, I think that if you think of like who is on the court, who is a judge, they have interests based on their identity and who they hang out with and the sorts of things they care about. And if there is a convergence of their interests with the interests of the clients making arguments before them, they’ll likely side with them. But if there is a divergence in those interests, then they won’t.

And as an illustration, he argued that when it came to Brown, a lot of the people on the Supreme Court were really embarrassed by segregation. The United States issued a amicus brief in that case saying that the Soviet Union was making fun of the US for claiming to represent liberty while at the same time treating half of its citizens like they were not citizens at all. By contrast, by the time the LDF was arguing in the ’70s and ’80s, the kinds of claims they were making was, we need bussing, we need forced integration. And for someone even like Joe Biden as a senator at the time who would complain about that is not what the 14th Amendment demanded, the interest convergence was no longer there.

And what I got from that sort of article was the sense of litigation as a theory of change is just really contingent. It’s contingent on just the world existing in a particular way in which lawyers can fit in and serve an important role, but absent any of these sorts of assumption, it kind of you you end up learning how to communicate and and it could end up end up being something of a dead language, like learning Latin, where if you want to become a Catholic priest, it’s really important to learn. But if you want to communicate with people in your neighborhood, like maybe not totally relevant.

And so, I I clerked on the Supreme Court in 2016, and I was there when Justice Scalia died. And afterward, it was a 4-4 court, four liberal justices, four conservative justices for the first time basically since the moon landing. Um, and there was a sense of sadness that Justice Scalia died and also a sense of, wow, the Constitution is about to be reinterpreted very differently. This is a moment in which being an appellate litigator is like perfect, you know, you can go in and argue and take this list of cases the court had previously decided and change it. And, you know, 9 months later after Donald Trump won, what one thing that I realized was, oh, I’m actually probably never going to see a liberal Supreme Court in my lifetime. You know, absent any kind of really like change from without, I don’t think that these kind of assumptions behind me are that, you know, you’re going to either going to have an allied court or the law on your side. I don’t think that that is going to describe my future. And at the same time, I don’t want to spend my career banging my head against a wall writing for dissenting justices. That does not seem fun. What what kind of country is this where, you know, my ability to see the sorts of world I would like to see in a democracy depends on someone dying? That’s crazy.

And so, the last thing that I read that I’ll I’ll just mention is um, uh, when I was a law student, I was a research assistant for Dick Fallon. And one of the things he asked me to do was do a research project about the Civil Rights Act of 1866. Um, and I had never heard of the law before, but he had written about it for his Fed Courts book, and so I looked it up. And it was basically this law in which Congress wrote down this list of rights that it thought states shouldn’t be able to violate. And looking at this list, I thought, this looks unconstitutional. Like based on what I have learned in con law, the Supreme Court would not stand for Congress stepping in trying to define what sorts of rights a state is allowed to violate. The court would say, that’s our job, that’s not Congress’s job. And yet, after writing this law, Congress proposed the same Congress, the exact same Congress proposed the 14th Amendment to basically constitutionalize what it had done. And I thought, is this so interesting that Congress defined all of these rights, was a little worried about what might happen to it, and so therefore wrote a constitutional provision that the Supreme Court today interprets in a way that would not permit that sort of law that Congress passed in the first place.

And I started writing a note for the Harvard Law Review. At the time I was clerking for Jeff Sutton who had argued one of these cases before the courts in which the court had said, Congress should not have a role. So, we had like a lot of fun conversations in which I was like, the case you argued is the worst case ever. Um, but he was very good-natured about it. But, um, uh, the the note basically argued it should not be up to Congress I mean, it should not be up to the court to define what the 14th Amendment or the rest of the Constitution means. In a democracy, it should be up to Congress to play a role.

And that ended up becoming the the seed for my current thinking about what is an appropriate theory of change, which is not one that is just tied to litigation, but is instead tied to more democratic participation. Like I don’t want to live in a country in which when a justice dies, like that is the end of my ability to think of what kind of society I can live in. Like that that does not strike me as a democratic type of government.

And so, what I have changed my mind to think is that, you know, when I was working with Unite Here in Virginia, I would have been better off staying with the organizers there and organizing as a theory of change, trying to work with other people, whether through Virginia politics or through the union itself, to try to get that law repealed and put all of my eggs in a basket of hoping that I could one day persuade a federal judge that the law was unconstitutional.

Got it. Um, I want to just hone what I hear, what I think I hear you saying. Are you figuring that the courts now are so no longer on a knife’s edge about a number of at least politically vagrant issues that there’s no way for litigation to kind of change the outcomes? Does that mean that for somebody coming into HLS today with the view you attributed to yourself coming into HLS if they agree if they if they think what you say is true irrespective of their own as we like to say normative commitments their own politics they probably shouldn’t be doing litigation because it’s just performative and it won’t push the needle or are you saying if they happen to have the normative commitments you do the judiciary is not going to be receptive if a student identifies as conservative and has a bunch of those commitments is it like all right I could see why you’d want to litigate because now we can see whether Kavanaugh or Amy Coney Barrett have the better of something.

I think the the conclusion that I’ve changed my mind to is um not that litigation is unimportant but I agree with what you’re saying that to the extent that you would like to spend your career convincing Neil Gorsuch that you have the correct view of the law now is a great time to litigate in front of the Supreme Court like you’ll be great at it. Um you know he’s a one of the swing votes on the court you can spend your career trying to persuade him and that’s that’s good for you. Um but I think that you know litigation what I have changed my mind to accept is that um it it is one theory of change and it is a theory of change that requires a like it requires certain things outside of your control to be true especially having a judiciary that is willing to accept your argument. It also requires a lot of other things it requires that you have the kind of training and elite background which anyone who has come to this school likely has uh to credibly stand before a court and make the argument in the first place litigation is not or open to just anybody to come forth and make an argument. Um and it requires the sense of this is a a theory that it it’s an elite theory of change it’s a theory about Harvard graduates talking to other Harvard graduates trying to persuade them to interpret this Constitution that long time ago was written primarily by a Princeton graduate you know it’s like a a a theory of change that that requires a handful of people to set rules.

And there are other theories of change that I think law schools really should teach. Um so one of the things that I have been experimenting with um hopefully somewhat successfully is is trying to teach legislation. So you know I would think that a law school in addition to teaching how to make an argument before a judge would also teach how to write a law. Um I have learned that that’s not very common um and that learning how to draft legislation is something that law schools in general don’t emphasize. I worked for a congressional committee many years ago and um at some point was asked if I could help draft a law and I was like yeah I’m down with that and you know it’s going to be like a couple lines in an appropriations bill and I’m like so now what like how do I do that? And they’re like just write what you want to have happen and I’m like I can do that. And I did that and then they sent it I think at the time through pneumatic tube to some office somewhere which were like the parliamentarians and then a day later it came back totally unrecognizable with whereas and modifying you know six stat 101 and I didn’t understand it but it was like yep that’s that’s my law and uh I don’t know where they got the training in that office but probably not through a class here. Yeah not not not from Harvard Law School and it’s got the funny thing cuz kind of like civil procedure doesn’t tell you where to file the paperwork for a case. Yeah well I mean I think it’s a little different though in the sense of how much trust you have in other people versus your own training like one would just think that a law school would teach how to write law like that doesn’t seem controversial. Um in addition I would expect a law school to teach how to you know get that law across the finish line it would teach organizing it would teach how to use the power that you have and the relationships that you have with other people to uh you know basically force people in positions of authority to listen and respect your just in the same vein as the original question I asked you could you imagine that being taught completely separated from the content of what somebody wanting to affect change what they are wanting to do?

Of course. Yep. Of course you know the the I I mean so my politics and Neil Gorsuch’s politics are just not they’re they’re far away from each other in on most things. Um I don’t expect that I will be able to persuade him to view the Constitution the way that I would like to interpret it. But I do think that even someone who is like Neil Gorsuch’s nephew or something who like is like on the same page would still benefit from learning other theories of change beyond how to argue before your uncle like I think that you know learning how to

I love the kind of nepotism going on [laughter] there but yeah it’s all hypothetical. Yeah all hypothetical but the sense that of course you know conservative and progressive students should learn how to write legislation conservative and progressive students should learn how to organize.

A teacher you would be thrilled if you taught such a class that maybe there was an instance of it in which the vast majority of the students were going to go out there and really nail Heller down that much more and uh you know have some Second Amendment outcome that you might personally disagree with that’s totally fine. Question mark.

Yes and it is really important to me and this is another thing that I’ve learned to emphasize in my classes it is important to me that people that come through a law school don’t just come out of it being able to predict what the Supreme Court will say about the law but will have a vision for what the law should be. And whether that view is consistent with my own is less important than that people understand that what the law represents is a series of normative commitments. It is not dissimilar from the kinds of commitments people make in terms of identifying their values or their own relationships or what kind of society they think is just. And so I would be thrilled if the graduates from this school feel equipped to pursue justice as they understand it even if that understanding is different from my own and I would feel really uncomfortable with a law school that teaches people how only to argue before judges such that their power and reputation and overall legacy basically turns on whether the court happened to agree with the arguments they were making at the time.

Got it. Thank you. Yochai.

Uh give myself a bit of a sense of how long I’m talking.

Take the mic please.

So uh thank you for coming um it is lovely to see some of my current and former students here. Um and it is nice to be with somebody with whom I I uh I was a one L uh although as you can tell I was probably an older student than um well that that Jonathan was.

We took an exam they had something called the typing room and most people hand wrote their exams in blue books um but there was also a typing room if you wanted to literally B Y O T you had to bring your own typewriter to the room and Yochai and I both did that and we were handed out the exam this is like fall one L year and I’m like still reading page two of this incredibly Byzantine hypothetical and from Yochai’s corner I hear click clack clack [laughter] click clack clack and I’m just like I am totally screwed. [laughter] Anyway good times.

Thankfully it was only a time constraint so there was no page constraint or [laughter] word constraint I could just keep going for three hours. Um it won’t surprise those of you who do know me uh that the change I want to talk about is a change in ideas and with it a change in focus uh in relations in mobilization uh and it’s really a change in how I understand how life goes how how society uh operates and transforms.

I spent the first this is the end of my 30th year of teaching uh I spent the first 17 of those years uh researching um writing amicus briefs advising legislatures advising regulators uh talking to activists based in an idea that was fundamentally skeptical of the state and in particular the capitalist state and its ability to and willingness to serve what was in the interests of most people. Um and a deep skepticism about markets. This is the height of neoliberalism. Everything everyone and his cousin uh uh believes in in uh privatization and deregulation and there’s no difference in that regard in the US between Democrats and Republicans uh on this set of questions of deregulation and privatization.

Um and so my emphasis was on how society can be changed by individuals under given material conditions. So I started writing about uh open-source software and hanging out with open-source software developers. Uh I started out a couple of months after three or four months after it started looking at Wikipedia and its structure and developed a sense of political economy whose fundamental structure was you what you can call left libertarianism or anarchism, a notion of voluntaristic and cooperative action by individuals bringing their own will and and mobilization and and values to building the system primarily the technological system in such a way that it will improve everyone’s life, that it will increase democracy, that it will provide for autonomy, that it will create a more egalitarian economic production system particularly in relation to information, knowledge, and cultural production. And I used to repeatedly intone for the first time since the Industrial Revolution, the most important inputs into the most advanced economic activities throughout most of the world are widely distributed in the population. It was a materialist conception that there were things out there in the material base structured how life could go and that voluntarism was there and the state and the market were both susceptible to being circumvented by voluntaristic collective activity when it was done cooperatively.

And so what did that mean in terms of actually organizing my own life? It was that was what I was writing about academically. That was writing amicus briefs to try to restrict um um uh copyright expansion that would prevent uh voluntaristic activity. The state was primarily an ally of capital constraining um um free cooperative production. Uh it meant um uh hanging out with with technologists trying to define what were the standards for wireless, for software, for network connections that would allow us to actually build a system that didn’t have control points. That wasn’t pervaded by toll booths. That wasn’t pervaded by points where a small number of firms could control um what we all saw and understood as true, what we all were able to communicate, how we were able to tell stories to each other.

And I did that from about 1996 to 2011-ish. Uh and sometimes it meant doing things that were unpopular like saying that WikiLeaks was in fact a a a a newspaper and and journalism and you couldn’t suppress it and that the Department of State under Hillary Clinton was vastly overreacted to the embassy cables. Uh that was not particularly popular. And it was things that were popular because a lot of people love fan fiction and etc. So I was hanging out with some really cool people and some uh people who were not happy with me.

In 2012 um um Erik Olin Wright, one of the great Marxist historians who in the latter part of his life was building real utopias, trying to see what is in the real world utopian structures, invited me and many other people uh to write little components of what a real utopia looks like. And it was 2012 and I looked back and I said, “Okay, so what are the new examples?” It’s still Wikipedia. It’s still Linux. It’s still Apache. Okay, now there’s also Signal.

Um and it was the sense of how on the other hand all of I imagined that the primary pushback would be from incumbents and the primary dimension of pushback would be law, intellectual property law, telecommunications law, antitrust. It turned out Facebook found a way to wrap things around. Apple found a way to wrap things around. Um Amazon found a way to build things into the cloud. Um it wasn’t the old incumbents. It was new creative structures that created new structures of control and concentration through new business models and technical interventions above and below the commons that we had all worked out to build.

And to me the past 14, 15 years has been to try to understand why we lost. And I think why we lost is because we didn’t have the right theory of capitalism and and social life in capitalism. We didn’t have the right theory of the state. We didn’t have the right theory of how even a fallible state can nonetheless indeed must be a major source of countervailing power for us because we were running on a mistaken theory of what structures society. We were running on a mistaken theory of how much room there is for individual small-scale network voluntarism to change structures without going after the instruments of the state, law and and organizational structures to break up and and and transform the dynamics of capitalism itself. And that’s really what I’ve been doing in the past decade, which is why also now um um I’m much more focused on the program for law and political economy uh why the work is much more on capitalism than necessarily on technology uh even as I continue in the conversations on AI.

I think fundamentally fundamentally the set of institutions we need to understand are the institutions that reinforce market dependence for subsistence, that reinforce this incessant pursuit of making money just to keep body and soul together which means that even if AI is the issue, freedom from want is the heart of the answer. Even if um uh agentic AI is really what’s new, a socialized form of credit that allows us to embed socially the directions of productive investment is the answer. Even if the question is we imagine a future where there won’t be any job, that’s still not relevant cuz what’s relevant is to understand that labor markets for the overwhelming majority of people are like clicking I agree. There is no choice. It’s not a contract. It’s always and only socially determined in social relations of production as they apply to labor. And the only question is to allow capitalists to unilaterally decide or do we leverage some democratic power to the extent with all of its limitations to push back?

What does that mean as a practice in practice? It means I spent 17 years with students and fellows and mentees, with colleagues and and with learning. It’s a lot of learning and building relationships that need to go in to be able to be an effective agent in the world as an academic. Couldn’t bring them all along. There’s a real cost. There’s a real loss to suddenly trying to learn new things, create new relations, build new interventions with new institutions that don’t know who you are.

But as a lesson from where I sit to where you sit the fundamental drive for me is one where what your best understanding of how the world works needs to drive what you focus on and what you do, not only your conception of how the world ought to work. It’s not enough that we have a normative ambition to say this is right and this is wrong and therefore I will work for the right. You need to have and be serious and honest with yourself about what is feasible, what is not feasible, what are the forces that are operating on you, and who are your potential allies. Because individual choice to do the right thing alone can’t change the world. It has to operate within and about systems. It has to operate within and around coalitions, sometimes with people who align with you sometimes not. But the investment from my perspective needs to be it can’t be doubling down on what I think is right and good without understanding that what I thought was right and good is actually uh just cycling without being connected to any gears that move the world. And you have to understand what gears move the world, what moves actually move society, and then pursue the goals that you want to pursue. And that’s irrelevant whether your desire is conservative or or liberal, lefty, or right-wing. It’s more of a question of what the relationship between your best understanding of the actual forces that operate in the world, which component you can intervene in and with whom, and then, as a as you get a better description of how the world actually works, as you assess what you think is desirable or not, redirecting your attention to what can actually change the world, even if it’s not the ideal arrangement.

So, for me, I moved from, as I said, from being what some at the time called left libertarians or anarchists to being someone who’s much more focused on what it would take to build a social democratic America, which seems like it’s an insane the idea that I just said, be realistic, seems insane. Uh and yet, we are in this moment of collapse. A global transformation of the United States will produce deep shock as we lose our global hegemony and become a nation like other nations, but with vastly transformed conditions. There will be a lot of misery, and in a lot of misery, there is also a lot of opportunity. And in that opportunity, let’s make sure we mobilize towards something that, if it succeeds, will lock in a transformed society, rather than not. And for that, we need to actually understand and be influenced and willing to shift based on our best understanding of how society works and what changes could structurally change it going forward.

In the words of the AI movie that was just released a couple weeks ago, it sounds like you might be an apocalyptimist. Um and I’m kind of struck by with no prior coordination that I know of, but it might have happened in a private home, um the three panelists are really kind of harmonizing with one another.

Yochai, I just want to ask you if you could draft and print out and roll up and put it in a bottle a tweet thread to yourself and send it back to 1996, is what you would be telling yourself very similar to what Professor Bouie was saying, which is ultimately, you have to be really in tune with a theory of change that relates to the world, and maybe that has to do with organizing and boots on the ground stuff, or maybe these aren’t mutually exclusive, but or are you saying, “No, no, I had thought that the state was probably largely the enemy, but actually I now see I should have been going all the more to try to bring the state to bear to help bring about the kind of world I wanted, which does sound maybe like Harvard graduates talking to other Harvard graduates.”

Um so, uh first of all, I completely see the resonance. I do think another way of saying, or at least strong overlap, is is theory of change. Um uh certainly, um when I made the shift to looking at the net from looking at 19th century land reform, um uh and history of property, it was because now is where this new frontier is changing and now setting the basic property rules uh will produce the structure to enable this third mode of production. Uh so, so if I were sending to myself then as now, I knew there would be a struggle. It was a political economy project from the start. It was about the institutional foundations of how material production worked, and it was the sense that this technological moment opened up an opportunity. The mistake the mistake was to imagine that there was a solution that was purely voluntaristic that could work around the state. And now it’s an understanding or and and could essentially obsolete the incumbent structures of industrial society. And what I am what I see today is the incredibly generative, creative force of capitalism to always push and create new models around new obstacles. So, it’s not so much that the internet um interprets uh censorship as damage and routes around it as much as capitalism interprets um anarchic, voluntaristic self-production as damage and routes around it, in fact, using it now as a resource to mine. Hello, Wikipedia. Hello, Wikipedia. Uh-huh. Exactly.

Well, um thank you all for this. We only have a couple minutes left, so instead of just like taking one traditional question that then there’s not time to really answer, I just wanted to ask a question of this group and see how many shortish, tweet-length answers we could get, um about your takeaway from this discussion so far.

Hi, I’m Anne Ekin. I would say my takeaway is think beyond individual right and wrong, think system and allies. Mhm. Got it. Thank you.

Thank you very much. Very appreciate. I just want to take away I try to make a bottom up movement or like with AI, top down, which focus on Asia’s bottom up movement. Thank you. Bottom up movement. Way to go.

If you want um to drive a change, speak to everyone about it. Um so, whether it’s the truth style sandwich with the media, whether it’s the legislatures, whether it’s the people, whether it’s your bodies, whoever, talk and get their ideas on board as well. Our democracy needs more oxygen. Oxygen masks dropping down.

Um thank you so much for your time. I think it was interesting how um a lot of you changed your mind from experience instead of just like hearing other people’s opinion. Um the way that experience like really made a bigger impact on you personally.

Yeah, I confess, in five years of doing this, I don’t know if I’ll say never, but it had been extremely rare to have anybody presenting here say, “I believed X, and then I read the empirical study.” Maybe Cass would say that, but most people are like, “Not. I read the empirical study and I was like, Eureka!” Instead, it it does seem to be lived experience that changes people’s minds, which makes you wonder how should we be tweaking our teaching, if at all, in light of that, or the exercise of scholarship. Somebody save me from that being the last word of this session.

I was just going to say an overarching thing that I I noticed between all three was sort of the tension between idealism and pragmatism. Yeah. Yeah. Absolutely.

Any final thoughts from our crew here? Um well, I actually love the comment I love all the comments, but I I love the comment about experience. And that’s really probably the credo core that all of us would I I don’t want to project, but um one of my favorite um expressions, uh which I learned, is also used by Bryan Stevenson, the great lawyer in Alabama who does a lot of death penalty work, is get close. You know, get close to the challenges that you really care about. Uh I’ve recently come across a uh very famous business book um about the overhaul of Toyota in the 1980s, and the CEO of Toyota who was responsible came up with this great phrase, go to the gemba, go to the actual place, and he would go down to the assembly line, he would go to the uh car floor where they’re selling the cars, he would talk to customers, he would sort of marinate in all of the bits of the Toyota soup-to-nuts experience, and that’s what informed his overhaul strategy, and I it’s a lot like Bryan’s get close, but I think that’s how your theory of change evolves, because you’re bumping up against realities that are a little hard to get wrap your arms around from from an academic institution.

Let me just tie the the experience and idealism pragmatism point, because I think it’s important that we not understand pragmatism as compromise. We understand pragmatism as concrete, reality-based learning and comprehension. So, if it is meant I will be driven by my best understanding given the best available tools, quantitative, qualitative, experiential, to drive my choices and my behavior, and I will be open despite the existence of pre-commitments, despite the fact that it may be costly to me, despite the fact that we’re all psychologically um uh more more [laughter] more of Cass’s work. Uh that we’re all psychologically biased to to reinforce what we already believe. To follow the best acceptable methods to understand what is going on in the world, that is pragmatist epistemology, not compromise. It’s not about ideals versus compromise, it’s about concrete knowledge of how the world works, knowing that our tools are imperfect and yet knowing that there are better tools than others and using those.

Got it. So, what I’m hearing is embrace the confusion and uh vertigo that you might feel if the world is not behaving the way you expected it would. Use it as a learning moment and touch grass. That’s the thing.

Last word, Professor Bouie. I think just as a final word of defending ideas, you know, the first time I read Derrick Bell’s articles, I wasn’t like, “Oh, now I’m convinced.” But I think with experience as I reflected on those articles, it was more like, “Oh, he had a point that I didn’t really embrace at the time, and now I see more applications for it. So, I do think that ideas may not convince anybody right away, but I think that making new ideas and new interventions is crucial so that as people experience the world around them, they can see it in a different way than they would otherwise.

You might not be able to plant a tree, but you can plant a seed. Thank you all so much. Thank our panel for a wonderful session. Thank you.