What does it mean to uphold disability rights, or the right to economic liberty? What framework should be used when rights appear to conflict? Constitutional law expert Jamal Greene contends that the way Americans view rights — as fundamental, inflexible, and universal — is at odds with how the rest of the world conceives of them, and even with how our own founders envisaged them. In his new book, How Rights Went Wrong, he lays out his vision for reimagining rights as the products of political negotiation. The goal of judges, he says, should be to manage disagreement in a way that leads to social harmony and social cohesion — and by doing so, foster the ultimate goal of peaceful pluralism.
Jamal and Tyler discuss what he’d change about America’s legal education system, the utility of having non-judges or even non-lawyers on the Supreme Court, how America’s racial history influences our conception of rights, the potential unintended consequences of implementing his vision of rights for America, how the law should view economic liberty, the ideal moral framework for adjudicating conflicts, whether social media companies should consider interdependencies when moderating content on their platforms, how growing up in different parts of New York City shaped his views on pluralism, the qualities that make some law students stand out, and more.
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Recorded April 5th, 2022
You can also watch a video of the conversation here.
Read the full transcript
TYLER COWEN: Hello, everyone, and welcome back to Conversations with Tyler. Today I’m here with Jamal Greene, who is a professor of law at Columbia University. He recently has published a very interesting book called How Rights Went Wrong: Why Our Obsession with Rights Is Tearing America Apart. Jamal, welcome.
JAMAL GREENE: Thank you. Good to be here.
COWEN: We will get to rights, but first I have some questions about baseball.
COWEN: Using law and economics reasoning, how would you improve the current organization or laws surrounding baseball?
GREENE: Well, I wish I could answer that question better than I can, and part of it is I don’t pay much attention to baseball anymore. I do think that sometimes — and I’m also not the best law and economics reasoner, but I can try — I think sometimes baseball’s incentives are misaligned, as far as I can tell, at least. I used to be a baseball reporter, and I worked for a magazine that was doing exactly what major league baseball is doing, which is having its audience get older and older.
There are a couple of strategies one can employ in response to that. You can change the product so that you try to attract younger people and different people, or you can cling to your old subscriber base in some sense.
The structure of baseball is not really well suited to the modern age, and they should hold on as long as they can to the people who really care about it. I don’t think you’re going to move second base a little bit or put in some robot umps, and then you’ll get 18-year-olds getting into baseball. You have to see the writing on the wall.
COWEN: Does that mean it’s a bigger problem than it used to be that baseball has its historic exemption from antitrust law?
GREENE: Well, I don’t think baseball should have an exemption from antitrust law. I suppose if it’s less popular than it once was, then whatever justification there is is diminished. That sounds right to me.
COWEN: What do you think is the biggest general problem with law and economics style of reasoning?
GREENE: I think as long as its limits are understood, it’s not a problem, just as any other form of reasoning has its limits. Sometimes we confuse internal debates about interpretation, internal debates about the right answer to legal problems with the external question of what’s the right answer in this case?
What I mean by that is that it’s perfectly sensible to say that the right answer to a legal question should be specified through law and economics, so long as you understand that other methods are also legitimate, and you’re actually trying to stake a claim within a conversation about the method. So long as people understand those limits, it’s all fair game.
COWEN: What’s the best way to improve America’s legal education system? We put you in charge. What do you change?
GREENE: I think there’s a small thing I would change — and this sounds really small, but it seems so straightforward to me. Law students shouldn’t be buying their own textbooks separate from the ordinary expenses. You pay a tuition fee, and the price of textbooks should just be diffused through tuition costs, and the ways in which people pay for those should also pay for their textbooks, but that’s a small thing.
The bigger thing I would change is the calendar for professional hiring in law. This is a little bit esoteric, but it matters a lot to our students. If you want to go into a job at a major law firm, and you go to a good law school, those jobs get offered to you at a time when you have no other alternatives. And so, regardless of one’s individual preferences, it makes no sense to turn down those jobs when you actually have no alternative.
I think that creates a lot of distortions, where you end up with people who are at these firms who don’t want to be there. And it biases the market so that people who want to go into public interest, for example, are the ones who are able to take that risk on, which is not a very good match between who’s genuinely interested in alternative avenues and who just can’t afford to take certain kinds of risks. At least in my world, which is the world of a certain kind of law school, that’s a major problem.
COWEN: If we made textbooks free, wouldn’t either tuition go up or the quality go down in some other way? At least with textbooks, there is a built-in price discrimination, so poorer students can buy used copies or older editions. But if the quality of food in the cafeteria declines or tuition goes up, everyone bears that, and in that sense, the change would be regressive.
GREENE: That’s possible. I think it would be folded into tuition. Part of it is the students make different choices when they perceive it to be something that’s a baked-in cost versus perceiving it to be something that they have to pay for separately. If some students are buying used books or some students are buying only digital copies just because of their perception of the cost, that seems to me to have some real unfairness to it.
Now, it’s possible that there’s not that big of a difference; it’s not a significant enough difference that we should care about the distributional consequences. But I tend to think that, just as other law school costs are not à la carte, textbooks shouldn’t be either. You could say the same thing about courses, right?
COWEN: Sure. How would you improve the LSAT system?
GREENE: I think I would just use it less. I don’t know that I would eliminate it entirely, but the idea that people should be admitted to law school, 50 percent or 60 percent or something based on LSAT scores, seems to me likely to be problematic. There are problems on either end if you get rid of tests like that.
People who are very good at succeeding at things are going to succeed in other ways, and so there is a certain transparency about the LSAT that I think is maybe not something you’d want to fully eliminate. But it does bother me that your performance on a three-hour test has such a profound influence on which schools one is able to go to. It would surprise me if there are not better ways of doing it, but I’m not deep enough in admissions offices to launch a strong criticism.
COWEN: Do you have a sense there’s a better predictor of success as a lawyer?
GREENE: Well, schools are trying to optimize for different things. I don’t know that there’s any reason schools need to pick students on the basis of who they think will be good lawyers as such. Schools have a lot of different goals that they might have in mind. They might want to have a certain community on campus. They might want to produce certain kinds of lawyers, which isn’t just about an abstract view of lawyerly quality, so it just depends on what the output is.
That’s going to vary both across schools and within schools, right? You’re looking for a certain professional diversity in addition to a Tom Cruise at the firm — top-notch lawyer. I do think that the LSAT predicts for a certain lawyerly skill. I don’t doubt that, but what I do doubt — and I think this is true to the internal policy choices of law schools — is that’s not the only thing they’re trying to produce.
GREENE: Yes. I don’t —
COWEN: Got to be good at it, right? What do the students know? They probably couldn’t publish in those law reviews themselves.
GREENE: Well, I think that there’s something to be said for peer review of which articles actually get selected. And that’s a different function of law reviews — selecting articles — than the editing process, where I actually think students, on balance — they’re not always good at it, of course, but on balance, I think they add a lot of value to the editing process. They fact check, for example. We resist it because we think we know it all, but it’s actually very valuable.
When you see some institution that seems to be inefficient, you have to think about what it’s actually trying to produce. Part of what law reviews are doing is giving a certain kind of experience to law students. They’re not just about producing scholarship.
The second thing I’d say is, there’s always going to be a tradeoff. You could have highly professionalized, highly elite gatekeepers. Then you keep out a lot of good stuff because it doesn’t go through the right gate. Then on the other end, you have not very efficient gatekeepers. You have lots and lots of law reviews, and it’s hard to do quality control, but you get a lot more stuff out there.
Given that law always has one foot in practice and one foot in the academy, I think there’s really a lot of value in getting a lot of stuff out there within our particular field.
COWEN: Should there be blind review of the articles? That is, the editors don’t know who wrote them.
GREENE: I think, generally, that’s a good practice. Given the volume of law review submissions, it maybe can be a little bit hard to actually operationalize that, but it’s a good aspiration.
COWEN: Just make people send it in without the name on the cover. You could have the system set up. Some assistant handles the initial submission. Then it’s handed to the editors who, this way, can’t look and see, “Oh, this is a famous person. This is Richard Posner. Of course, we have to take it.” They judge it more on its merits.
GREENE: Yes. You could do a version of that. Given the citation practices in law, it’s hard to fully anonymize, but I think that’s the right aspiration. When I was a law review editor, we mostly did that at Yale. A number of law reviews try to do that. Sometimes, again, it’s hard to avoid, but I think that’s the right goal.
COWEN: What is the question we should be asking Supreme Court nominees that we’re not asking them now?
GREENE: Well, “should” is a funny word. In an ideal world because the confirmation process . . . Maybe we should be asking them nothing because the confirmation process doesn’t actually serve that much of an informational value. It’s political posturing and so forth. But if one were actually to try to design a confirmation process that was useful, I think you would just ask them their views about cases that have been decided. Ask them if those cases were correct.
They say that biases them in some way, or conveys bias. I just don’t buy that. One can have a view about something decided in the past and change one’s view based on new information. There’s no necessary bias. The idea that they haven’t thought about these things or have no formed views, or that we shouldn’t be aware of what their views are, seems to me to be profoundly undemocratic. If I were God and could control the process, I would have a conversation about the Supreme Court’s docket.
COWEN: But the court itself is undemocratic by design, so it’s funny for me to hear you say some practice in the confirmation process is undemocratic. Isn’t that the whole point?
GREENE: Well, the confirmation process is not undemocratic. The way in which they are chosen is not undemocratic. Yes, their decisions are not democratic in the same way in which elections are democratic, although they do vote. In that sense they’re democratic, but they’re political appointees. They are political appointees for a reason because they make law for society. People who do that should be chosen through democratic means, and they are chosen in that way.
As long as we’re talking about the selection process, yes, we should know who they are. We should know what their views are. We should debate them, and we should make decisions on the basis of the conclusions we reach.
COWEN: On average, how many non-judges should be on the Supreme Court at any point in time? Basically, we’re picking from former judges, right? Why do that?
GREENE: Yes, I thought you were asking something slightly different, which is whether they should be lawyers or not —
COWEN: Oh, that too, of course.
GREENE: — which is another question. I don’t have an a priori answer to that. I do think there’s value in having people who are lawyers. I think I’m okay with mostly lawyers or maybe even all lawyers, but they don’t have to come from judging. Elena Kagan didn’t come from judging, and she’s a terrific Supreme Court justice. Hugo Black didn’t come from judging. He was a terrific Supreme Court justice.
People who come from politics, people who come from academia, people who come from other forms of lawyering but not straight from the judiciary — it’s a different kind of judicial role at the Supreme Court. The cases are closer. They’re not strictly bound by precedent. They are often deciding serious political, moral questions, so I think having some exposure to other forms of decision-making is perfectly sensible.
COWEN: It happens so rarely. When was the last time a non-lawyer was on the Supreme Court?
GREENE: Oh, a non-lawyer? There haven’t been any non-lawyers on the Supreme Court.
GREENE: There have been people who didn’t complete law school, but back then you could become a lawyer in other ways, so no one in the US Supreme Court who’s not understood to be a lawyer at the time. I don’t think it would be disastrous to have a non-lawyer on the court. There are non-lawyers on the Judiciary Committee, some of whom ask good questions, who are smart people, who could figure it out.
But a lot of the court’s docket is quite technical. I happen to think that the court should have panels. Not everyone should hear every case. If you did something like that, maybe you could have a non-lawyer panel or something. Outside of the big ticket — your affirmative action cases, your abortion cases, these big controversial things — I don’t think you need lawyers to decide those questions. But I do think it’s pretty hard to be a non-lawyer and decide a technical statutory interpretation case.
COWEN: Isn’t that a main way in which the court is especially undemocratic? That is, most people in America are not lawyers. Just a general sense, whether correct or not, that the law plays too strong a role in society. Many people will say there are too many lawyers. There are lawyer jokes. Especially if we’re going to expand the numbers on the Supreme Court, as you’ve argued for, wouldn’t that be a great time to introduce, say, three to five non-lawyers? Have a philosopher. Have an economist.
GREENE: I wouldn’t be opposed to that, necessarily. I’d have to think about it more, but I wouldn’t necessarily be opposed to that. Again, I do think there are a number of kinds of cases the court hears that are not well suited to people who are not lawyers. There are also cases the court hears that are not well suited to people who are lawyers, or at least not uniquely suited or especially suited to people who are lawyers. I would not be totally opposed to that idea.
I resist a little bit the idea that the reason for that is grounded in democracy in some serious sense, or representation in some sense, insofar as I do think that the court plays a role that’s different from other democratic institutions. Again, I don’t think it has to be played by lawyers. I think that’s a fair criticism.
COWEN: I’m not just saying it doesn’t have to be, but why, clearly, shouldn’t it always be played by lawyers? If I look at antitrust cases, it seems to me a pretty high percentage of justices, historically, don’t understand antitrust very well because they’re not economists, which is fine, not to be held against them. Again, it’s an argument for having people with, say, business experience on the court, people who work with children.
GREENE: I think that’s fair. I wouldn’t want to get too specialized, but there’s a good argument that we’re already too specialized in a technical legal sense. I believe — and I’ve said before in writing — that the court should take what we call social facts or legislative facts into consideration more in their decision-making. They should be more empirical than they are. It makes sense to accompany that kind of call with serious consideration of whether some of them should have other competencies. I think that’s perfectly fair.
COWEN: To turn to your book, How Rights Went Wrong by Jamal Greene. The same arguments can be found in your articles. You argue that the American conception of rights is quite different from that, say, found in Western Europe or, indeed, other parts of the world.
What is it, in your opinion, that is upstream of that American difference? Is it that we’re a more ideological nation, and thus, we put a lot more emphasis on a smaller number of rights? What’s the cultural determinant of the difference that you’re pinpointing?
GREENE: Well, there are multiple cultural determinants. I think our experience with racists maybe — if I had to point to a single one, it would be that insofar as we associate rights with a particular history of race-based pathology, that people have rights in the same way that African Americans have rights to not be forced to go to a segregated school. That association of rights with pathological governance, I think, leads to a certain kind of binary understanding of what rights can do.
In my view, rights, in a constitutional sense, can arise in lots of situations, whether the government’s acting well or not acting well, because rights, I think, are just a byproduct of pluralism. Other countries don’t have the same historical baggage that we do when it comes to race. On the one hand, we think that rights should be understood in really strong terms. And on the other hand, there are a bunch of economic rights that, within our legal culture, are understood as being very, very weak.
You have this kind of binary, where you’re choosing whether you’re talking about something very weak or something very strong, instead of talking about rights much more contextually.
COWEN: There seems to be plenty of American exceptionalism that extends far beyond race or doesn’t boil down to race, or it pops up in issues that are quite non-racial or appear to be non-racial. Race might be one factor, but doesn’t it stem from something very fundamental in the nature of American society? We’re more literal. We hold ideas more strongly. We’re more suspicious of state power.
All those other non-racial upstream factors — is it that you want to change and reform those? Or you want to change our notion of rights but keep all the upstream factors in place?
GREENE: Well, I think the upstream factors are maybe a bit more contingent than you’re suggesting. The way in which Americans understood rights before the middle of the 20th century was quite different from how we understand rights today. We often tie our rights arrangements to the founders, or to the Bill of Rights or something in our ancient constitutional arrangements. But that’s certainly not how the founders thought about rights, not in the quasi-absolute sense that we do.
I do think suspicion of state power is accurate. As to Americans, I think we’re more classically liberal-minded than Europeans, say, but I don’t think that that’s an obstacle to saying . . .
Part of what I’m urging is a recognition that rights pluralism is inseparable from pluralism, full stop. Part of it is being accepting of pluralism in a way that — I think it’s right — that there’s partly a culture of resistance of that, but I think that’s destructive. Pluralism is something we need to embrace, and embracing it requires us to understand that we’re different from each other in important ways, and we have to reconcile those differences.
COWEN: At least as you state the argument in that paragraph, it would seem you’d be sympathetic to a lot more federalism, which could allow for the creation of a lot more rights of intermediate strength, a lot of diversity, pluralistic approaches across different states as, say, we’ve seen with the treatment of COVID. But you don’t seem to go in that direction. Why not?
GREENE: Well, I am sympathetic to federalism. Part of the reason it may be perceived that I don’t go in that direction is because, historically, federalism has been used in large part to defend white supremacy. It doesn’t need to be used in that way, and if we’re not identifying, not recognizing that kind of pathology, I think federalism is entirely compatible with and makes sense in the context of rights.
In fact, we sometimes say that rights have to be universal in some sense. I’m not sure why that’s true. I think rights are constantly a subject of contestation, just as governance is constantly a subject of contestation. There might be lessons to be learned from having some flexibility in how we think about those in different institutional contexts and across geographic space.
COWEN: What do you think of the critique made by many supply-side progressives, such as Ezra Klein, that there’s an accretion of too many veto points in our legal system? No one would say that snail darters have absolute rights, but they have some claim to a level of review before you can build something that pushes them out. If you have a lot more — let’s call it non-racist federalism — a lot more intermediate layers of rights, you just accrete more and more reviews, more delays. Things don’t get built. Things don’t happen.
We can’t fix global warming as a problem because it takes seven years to get your wind farm approved. Isn’t having a proliferation of the number of rights in the middle actually the problem we face?
GREENE: Well, no, I don’t think so. When I talk about rights federalism, I don’t mean creating more rights in the sense in which we associate rights with a certain kind of absolutism, and that’s not what I mean. What I mean is, rights are not just about things that courts say. Rights are grounded in political negotiation, and the number of sites where that political negotiation is possible should be greater.
I think that that gives people leverage in political negotiation in ways that they don’t have when you say, okay, you’ve got a kind of absolute free speech right that applies the same way everywhere, and anyone who wants to stop something speech-grounded, let’s say, can invoke this absolute, universal speech right. I think that’s as destructive, more destructive of government effectiveness. Government effectiveness is itself something that can and should be understood in rights terms, but we have a right to democratic participation and to the fruits of that participation to bear fruit.
COWEN: How long does the median political negotiation take in terms of months or years?
GREENE: Well, I don’t mean political negotiation at a congressional level. I mean in our day-to-day interactions with each other. There are a lot of different sites for politics, not just in some legislature or some such. What the call is, is a call for there to be less trumps, in that sense, less veto points because nothing’s ever quite a trump. And people knowing that they’re not going to win in court are less likely to go to court — or not be sure they’re going to win.
COWEN: As someone who lives in New York, surely you’re familiar with how hard it is to get new subway lines built, right?
COWEN: It can take many decades. It costs far too much. Maybe it doesn’t ultimately get stopped, like the Second Avenue line has opened, even though it was first planned in the 1970s. It’s not Congress at fault. It does seem there are just too many interaction points, too many rights-relevant claims that can be made to slow things down. Isn’t that the problem we need to solve if we want actual democratic accountability, that the things you choose from your democracy can then actually happen?
GREENE: Well, if we’re talking subway infrastructure . . . It depends on what you’re talking about. Different cities are good at different things. New York is very bad at subway infrastructure, for sure. I don’t have a story to tell that connects that to veto points. The costs of construction are much higher in New York than other places. I don’t have a good story for exactly why that’s the case, but other places that think about rights in much more flexible ways have perfectly good public infrastructure — Canada, much of Western Europe, for example.
I’m not sure how much of the story one can tell in that sense. I think generally, again, we should constantly be concerned about the ability of government to be effective. And if some particular rights regime, whether the one I’m describing or the one I’m criticizing, is standing in the way, that’s a problem.
I’m not suggesting any kind of essentialism about this, but what I observe is that people use the putative absolutism of rights to prevent government from being effective on quite a regular basis.
COWEN: What do you think is the most worrisome unintended consequence of implementing your vision of rights for America?
GREENE: Well, I think the biggest potential problem is an inability of courts and political actors further down in the system to know what their rights and obligations are. The US Supreme Court is an apex court. It sits on the top of a pyramid, a hierarchy of other courts. All of those courts have constitutional jurisdiction, so you have a potential for chaos that is not present in many other jurisdictions, although some — Canada, for example — have the same basic structure. A kind of deep legal uncertainty is something that one should be concerned about and should watch out for. I think it’s overstated.
As I’ve said, some flexibility and some inconsistency in the law is not as bad as sometimes we say it is, but I do think that that can upset expectations. It can make it hard to plan, so I think that’s the thing to watch out for.
COWEN: There is a crude view in popular American society — even possibly correct — that, simply, American society is too legalistic. There’s that book, Three Felonies a Day. If you have expired prescription medicine in your cabinet, you’re committing a felony. People who are very smart will just tell me, “Never talk to a cop. Never talk to an FBI agent.” I’m an upper-class White guy who’s literally never smoked marijuana once, and they’re telling me, “Don’t ever speak with the law.”
Isn’t something wrong there? Is the common intuition that we’re too legalistic correct?
GREENE: I think that we are too apt to submit political disputes to legal resolution. I think that for sure. What your friends are telling you about police officers is slightly different, insofar as one can have a deeply non-legalistic culture in which the correct advice is to not talk to police officers if those people are corrupt, if those people are abusive.
When I hear that advice — and I might be differently situated than you — that’s what people are saying is, someone might be out to trick you. And that might be a mistrust of state power, as you mentioned before. Maybe it’s a rational mistrust of state power, but I don’t know that that’s about legalism, which again, is a separate potential problem.
We tend to formulate our problems in legal terms, as if the right way to solve them is to decide how they are to be resolved by a court, or how they are to be resolved by some adjudicative official, as opposed to thinking about our problems in terms of just inherent in, again, pluralism, which has to be solved through politics, has to be solved through conversation.
COWEN: But we still have whatever is upstream of the American law, the steep historical and cultural background, so anything we do is going to be flavored by that. We’re not ever going to get to a system where the policemen are like the policemen in Germany, for instance, or that the courts are like the courts in Germany.
Given that cultural upstream, again, isn’t the intuition basically correct? Just be suspicious of the law. We should have fewer laws, rely less on the legal process, in essence, deregulate as many different things as we can. Why isn’t that the correct conclusion, rather than building in more rights?
GREENE: Well, I’m skeptical of the cultural premise, or at least I think it requires more specification. I do think that Americans have a history of being paranoid about various things, but this idea that state-building is somehow un-American or something — I just don’t buy it.
There was an inflection point — I think an important inflection point — in the 1960s and around the response to the Great Society that one can’t separate from race quite as cleanly as one might wish to, that associates big government with helping out racial minorities in particular, and there was a reaction to that.
I am not conceding — I won’t concede at this moment, at least, that we just have to accept that that’s an inevitable feature of the American people, the solution to which is some kind of deregulation. It’s hard for me to draw a line from what I see as the problem to that solution.
COWEN: Say we consider the notion of making disabled people either a protected class or a partially protected class, and you’ve written about this. Aren’t we, in that sense, forcing them much more into the legal system? You have to get a legally valid diagnosis to count as some particular kind of disabled — autistic, ADHD, whatever it may be.
Doesn’t that legalistic requirement itself infringe on the rights of many disabled people who may not even think of themselves as disabled or may not wish to be labeled, or they don’t want to get a diagnosis because it will work against them when their divorce case comes up, or for some other reason in the workplace? Isn’t it the case that making it more legalistic is going to infringe on a lot of people’s rights and lead to great harm?
GREENE: No, I don’t think so. I don’t think that providing more openness in the law to disability claims requires people to be in some kind of registry of disabilities that’s stigmatizing or something. Rights are for those who wish to exercise them, not for those who don’t.
COWEN: As a matter of actual evidence, you have to show you have the disability, right?
GREENE: Well, it depends on what we’re talking about. I’m not someone who believes that one’s rights should necessarily turn on one’s individual claim to an exemption from some scheme. When I talk about disability rights, a couple of things to say. One is that we should respect political processes that protect disability rights, and right now, we don’t fully. That’s not necessarily a matter of presenting oneself as disabled. A business having to make a reasonable accommodation helps anyone, regardless of who needs the accommodation, regardless of what their particular legal designation might be.
There’s also another point, which is that when we’re talking about disability rights, there’s genuine injustice that I think many of us recognize as injustice, that people who are less able are less able to thrive. It’s not just a matter of a legal technicality that we think that these people should have rights. It’s that we think they should have rights, so there shouldn’t be legal formalisms that get in the way of that. And that’s my objection.
COWEN: Say an autistic person says, “Well, I hate fluorescent lighting. You need to change the lighting in the workplace.” The employer comes back and says, “Well, at least I need to know you’re autistic. Where is your diagnosis?” That seems like a pattern we might expect, whether we like it or not. It’s not some accommodation that simply helps everyone. The lighting is one way or another. Could that be a right that has partial recognition?
GREENE: It is the case that if you make more claims legally available, people may argue about whether those claims should be recognized. In the particular context of disability, the problem that I see is that there are genuine claims of right, genuine claims of justice that are unrecognized. The fact that someone who has a disability is not being accommodated is something that counts as a cost for me. The fact that it also means that legal claims will be involved is something that I think is overcome by the connection between the actual accommodation and what we think justice requires.
The flip side of that is, there are lots of rights that we have in our culture that are not actually connected to any deep conception of justice. I have a right to watch pornography in my home. If the state said that I don’t have that right, that’s costly to me, but the connection between that and, I think, many of our conceptions of justice is much weaker than the connection when it comes to disability rights. It’s not that I’m saying we don’t have many rights now and we should have many more. It’s that there’s a misalignment between the rights that we think are worth it and the rights that we don’t think are worth it.
COWEN: I’m a fan of Robert Nozick, though not in the absolutist sense. Nonetheless, I believe there’s some right to economic liberty. So if a state set up, say, occupational licensing for interior designers, I would want at least a state court to strike that down and say that’s a violation of the right of economic liberty, and that there’s no other overriding concern. What would be an example where you would want a policy struck down for violating economic liberty?
GREENE: I also would say, as a tentative matter, that occupational licensing for interior designers would be a policy that I would think should be struck down, as you do. Our current system doesn’t allow that claim to be struck down. In some ways, this is analogous to the disability situation, where if you’ve got no good reason for a particular law — although it’s not fully analogous — if you have no good reason for a particular law, that law shouldn’t be in place.
I say “tentatively” because I think that all of these kinds of cases shouldn’t turn on some major premise about economic regulation, or some such. It should depend on the facts. I don’t know enough about interior design to know whether there’s some good reason to have occupational licensing. It doesn’t seem like there’s a good reason, but I’d want to know factually. The empirical record matters.
COWEN: Sure. You might think there could be some particular kinds of frauds that would proliferate in the less regulated regime. But you still, at the same time, might hold the opinion there’s a right to economic liberty, and you can contract for your interior design with the persons you want.
It’s not creating any overriding danger to the polity, or it’s not eliminating all licensing for all doctors. It’s just something one can live with. If you want to make your living that way, that’s your right to do so. Why isn’t that just prima facie correct?
GREENE: I wouldn’t deny that that’s prima facie correct. I would phrase it slightly differently, or frame it slightly differently, which is to say that people do have a basic right to the government justifying when it regulates them. I don’t feel a need to label that as a right. Labeling it as a right carries some baggage, and maybe makes people have greater expectations of how far they can go than I think is healthy. But yes, absolutely, if there’s no good reason to regulate, then the government shouldn’t regulate.
There are some issues with a regime of that sort. As a US lawyer, people will throw Lochner v. New York at that kind of system. But to my mind, the problem in the Lochner case — which is this famous legal case from 1905 about maximum hours law which the court struck down — is not that the court should never strike down maximum hours laws. It’s that that particular law was well justified. The battle over these things should be a battle over justification, not a battle over whether people have rights. I think people do have rights to contract and economic rights and so forth.
COWEN: As you probably know, for minor league baseball, a lot of labor law just doesn’t apply. People can work — if work’s even the right word — all crazy hours at very low pay, and nothing from the state intervenes. It’s considered partly an apprenticeship for many people.
GREENE: Yes, there may well be context in which we are willing to tolerate that as a society, but I think it has to be contextual. This is partly a political conversation. I might have my own views about this, and others have their views. It’s okay for those views to be worked out through politics, through forms of dialogue. Maybe you strike down something at the margins, and you see how the state responds. You see how people respond. I think courts should be part of a broader political conversation about these balances of values that we all disagree about.
COWEN: Now, you yourself emphasize that these partial rights — they often conflict with each other, sometimes by their very nature. If I put on my Henry Sidgwick philosopher hat, and I ask, “What’s the ultimate moral standard you use as a moralist when rights conflict, to arrive at a decision?” How do we solve the problem of pluralism is another way to put it, morally. What would your answer be?
GREENE: Well, I think the most important value for an adjudicator of a case involving competing rights is humility and the recognition that the adjudicator doesn’t have superior knowledge, superior moral knowledge, about the way of resolving these conflicts. These conflicts are political conflicts.
Now, at some level, if we think the politics are acting in a perfectly sensible way, then maybe there’s not much of a role for the adjudicator. Maybe you just let politics work itself out in the way it should if we think that there’s something that politics is missing.
When I say “we,” again, I think people are going to have different views about this. If you think something’s missing, if you think that someone’s not fully taking account of the full dignity of someone, if you think the government is acting grossly disproportionately, then that’s when you step in.
COWEN: Those words you’re using — “sensible” and “grossly” — they’re in a sense parasitic on some independent moral standard. I’m not suggesting you should be utilitarian, but if you said, “Well, I’m a utilitarian, as Bentham was,” that would answer the question of how you reconcile the claims. So, if it’s not utilitarianism, then what is it exactly?
GREENE: I hesitate to label it. It is, I would say proportionality, which means, in this sense, that one is constantly concerned with . . . and proportionality as to a set of values that are embedded within the existing legal tradition. Within our legal tradition, we value freedom of speech, we value racial equality, we value a certain degree of independence and autonomy, and those are differently affected by different kinds of laws. Laws also protect some of those values. So, it’s a constant negotiation.
Of course, democracy is also a value. There are multiple competing values. I don’t have a key, because the key presupposes some hierarchy between the values that I reject. I think that in each individual case, those values are going to be affected to different degrees, and that’s part of what the judge’s job is — to figure out whether there is some disproportionality in the way in which values that we all share are being respected.
COWEN: But then, how do you ever know if you’re right? I’m not sure if, at the margins, there are values we all share. There’s disagreement. Proportionality is just saying there’s some weighting scheme behind this all, that we judge by some standard of whether we’re offended. But then, that’s getting back to what lies behind all that. I don’t see what the answer is.
GREENE: Well, I don’t think there is an answer because I don’t think the question is whether we’re right. I think the question is whether we’re managing disagreement in a way that leads to social harmony and social cohesion. The problem, again, is not a problem that some of us are getting rights wrong. You want abortion rights, I don’t, or vice versa. You want labor rights, I don’t, or vice versa. One of us is right, and one of us is wrong. The problem is that we disagree, and we don’t agree on the way of resolving our disagreement either.
The job of the judge, under those circumstances, is to manage disagreement, to manage pluralism. That’s not something that lends itself to being right or wrong.
COWEN: You’re one of the leaders on the Facebook Oversight Board. What is the optimal correlation between the content moderation policies of different social networks? Some people worry. It’s okay if Facebook takes someone off the platform — not the company Meta, but the Facebook page — but if Twitter and YouTube do the same thing at the same time, then people start getting worried. So, should individual social media companies consider the interdependencies here, or just each act separately?
GREENE: Well, I think it depends on the content. Generally speaking, yes — I won’t speak for the oversight board; I’ll just speak for myself — generally speaking, yes. I do think that one should generally be concerned with whether the market for users is a competitive market or not.
If Facebook is the only game in town, as it is in many countries, I think one is right to be more concerned about its content moderation practices under those circumstances than under circumstances of genuine competition. It would then follow that if all the companies are doing the same thing, whether or not they’re coordinating their behavior, one should be more worried about that.
It’s hard to be abstract about that because some content comes down because there’s good reason to take it down.
COWEN: Facebook is a big player in the market. You don’t have to think it’s either collusion or that Facebook is a monopoly, but it’s just like, if one employer fires you, a lot of others will be reluctant to hire you. They’ll think, “Oh, something went wrong.” If Facebook takes down a content poster, then Twitter and YouTube must think, “Well, Facebook looked into this. Facebook even has this oversight board, a lot of smart people on it, a lot of diverse points of view.” Shouldn’t that make you much more reluctant to argue for something not being on Facebook?
GREENE: Well, I’m skeptical that that’s, in fact, how YouTube and Twitter behave, that they take things down because Facebook takes something down. I’d also say, look, it’s complicated. There are things that come down because there are good reasons to take them down.
Yes, as I said, I think one should be concerned with market concentration and market power. One should be concerned if there is speech that should be proliferating but isn’t. One should be concerned that the decision-makers are private actors. One should also be concerned with the harms of certain kinds of speech and the ways in which those harms can be amplified in the social media context.
One should be concerned about the particular rights of the platform. These are private companies, but also have their own views about what their speech environment should be. There are a number of other factors that count in addition to whether some particular piece of content should get spread.
COWEN: Now, you’ve argued in the past that there’s no constitutional right to privacy, and I think I agree with everything you have written on the topic. But if I introduce a new angle, I’m wondering if I agree with you.
Right now, facial and gait surveillance are much more prominent than when you wrote your original articles. If someone said, “Well, I’m worried about facial and gait surveillance.” These are genuinely infringing upon a right to privacy, in the literal sense of that term, that’s much more literal than the other context where the right to privacy has been invoked. Would you still say there’s no right to privacy?
GREENE: Well, I don’t think there’s no right to privacy. I think that the Supreme Court no longer grounds the sorts of things that we associate with the constitutional right to privacy in a right to privacy. We think of that in terms of birth control and abortion rights, and that is no longer the language and hasn’t been for many, many decades — hasn’t been the language that the court uses. There’s no right to privacy in a descriptive sense.
I do think privacy is an important value to people. When it’s being infringed by private actors, there are other important values that are also relevant, namely, the economic rights of the private actors.
If we’re talking about government surveillance, I’d want to know, why is the government surveilling? What is the value that it’s serving? Is it ham-handed? What are the possibilities of abuse? Could it achieve these objectives in some way that doesn’t involve the privacy infringement? I think privacy is a right and should be treated in the same way as other rights.
COWEN: Our final segment: the Jamal Greene production function. What did you learn collecting insects with your dad in the backyard?
GREENE: Gosh, I don’t know where that came from. It’s true. Maybe nothing, other than that I like my dad. He’s a good guy. I think it showed something about my interest in taxonomy, which is probably not unconnected to later becoming a baseball reporter, as I became a stathead in high school and in college. So there is probably a story to tell there.
COWEN: Intellectually, the different parts of New York you lived in growing up — how did that shape your views intellectually? You moved from Queens to Park Slope, right?
GREENE: I was in Brooklyn for all my childhood, in Park Slope for part of it and a place called Flatlands for the rest of it. Since adulthood, I’ve basically lived in Manhattan.
One thing I’d say is just an appreciation for pluralism that is still a part of my work, I think comes from going to school on the Upper East Side and laying my head an hour and a half away from that, across lots of different communities, lots of different neighborhoods, and learning to appreciate human diversity, learning to get used to it.
The ways in which my high school community was very different from my family and seeing the value in each of those communities, I think was a very important part of formulating my values, so that I could never labor under the fiction that there is any one value that we all pursue.
COWEN: Your brother aside, who is the best rapper of all time?
GREENE: [laughs] The best rapper of all time. Well, it depends on if we’re talking about lyrics or something else. But I’ll go with Black Thought, who my brother would say as well, who’s the lead rapper for the Roots.
COWEN: What makes him especially interesting?
GREENE: He’s prolific. He’s extremely productive. He’s very smart. He’s not lazy in the way in which he constructs his lyrics, and he manages to be both musical and a poet. This is something that my brother has struggled with early in his career. He’s a poet. He’s not a musician, and he had to learn to be a musician. Trying to combine those things is a rare gift.
COWEN: What was your favorite music from your father’s extensive music collection growing up? It was a bit earlier, so there’s less rap in it, proportionally.
GREENE: My father’s not a rap fan, but he was a big jazz fan. Coltrane, Miles Davis were people he grew up loving. He also was into classic rock of his generation: your Bob Dylan, your Jimi Hendrix, the Beatles. Nothing exotic, but good music.
COWEN: What is your oddest or most unusual effective work habit?
GREENE: Well, I don’t know that it’s so unusual, but certainly my most effective work habit is to use the entire day to work. I get a lot of work done late at night. Most of my time during the day is spent teaching classes or meeting with students, and all writing and reading and preparation and everything is much later. That means I don’t watch television shows. It’s a really extended workday.
I work during soccer practices. I work sitting in the car while my kids are doing something or other. I don’t segregate times of the day where I can’t work.
COWEN: When you teach a law class, what is it you feel that you do differently from most of your colleagues? What is special about taking a class with you?
GREENE: Well, I teach constitutional law. That’s not the only thing I teach, but it’s one of the main things I teach. One thing that I try to communicate to students is that it’s okay if they go into the class and then come out of it really jaded about constitutional law and its relationship to politics. We’re very open about the challenge of trying to understand law as an autonomous discipline. Sort of, what are we doing here if we all know that there’s a realist core to what courts are doing?
I don’t know that that’s so unique to me, but it is a very self-conscious journey that we all take together, to say, is there a place you can arrive at where you’re comfortable with what your role as a lawyer is, and what your role as a constitutional lawyer is? What you have to do is to learn a certain language that, self-consciously, you know is not just shallow fiction but a really deep fiction about how change is made. You’re playing a certain role, and you have to justify that and figure out for yourself why that role is valuable to you.
COWEN: Last question. You meet plenty of students, and surely, you wonder, will they someday become important producers of legal ideas as professors or as judges or in some other capacity. Other than the usual — hard work, intelligence, open-minded — what is it you look for as a marker of their talent for the future?
GREENE: Well, other than the usual —
COWEN: There’re plenty of people who have the usual who don’t do something important. There’s some extra spark of something.
GREENE: Well, I think it’s a combination of two things, and they’re not unusual in the sense that it’s some esoteric thing. It’s a combination of being genuinely a self-starter and also being genuinely curious. And curiosity goes hand in hand with a certain degree of humility — not knowing that you’re right about things and wanting to know more and more and more at all times, but also being someone who seeks out ideas on their own, who doesn’t need someone to tell them something, who sees, who hears something and says, “Oh, that’s interesting to me intrinsically. I’d like to know more about that.” As opposed to wanting to know how it’s instrumental to them getting to some other step.
COWEN: Jamal Greene, thank you very much. Again, everyone, here’s Jamal’s book, How Rights Went Wrong: Why Our Obsession with Rights Is Tearing America Apart.
GREENE: Thank you.