Cass Sunstein on Liberalism and Rights in the Age of AI

Cass Sunstein is one of the most widely cited legal scholars of all time and among the most prolific writers working today. This year alone he has five books out, including Imperfect Oracle on the strengths and limits of AI and On Liberalism: In Defense of Freedom. In his second appearance on the show, he brings his characteristic intellectual range to exploring liberalism's present precariousness and AI's implications for law and speech. Tyler and Cass discuss whether liberalism is self-undermining or simply vulnerable to illiberal forces, the tensions in how a liberal immigration regime would work, whether new generations of liberal thinkers are emerging, if Derek Parfit counts as a liberal, Mill's liberal wokeism, the allure of Mises' "cranky enthusiasm for freedom," whether the central claim of The Road to Serfdom holds up, how to blend indigenous rights with liberal thought, whether AIs should have First Amendment protections, the argument for establishing a right not to be manipulated, better remedies for low-grade libel, whether we should have trials run by AI, how Bob Dylan embodies liberal freedom, Cass' next book about animal rights, and more. Read a full transcript https://conversationswithtyler.com/episodes/cass-sunstein-2/ enhanced with helpful links, or watch the full video https://youtu.be/-tZfQaEOrDQ on the new dedicated Conversations with Tyler channel. Recorded October 10th, 2025. This episode was made possible through the support of the John Templeton Foundation. Other ways to connect Follow us on X https://twitter.com/cowenconvos and Instagram https://www.instagram.com/cowenconvos/?hl=en Follow Tyler https://twitter.com/tylercowen on X Follow Cass https://x.com/CassSunstein on X Sign up for our newsletter https://mercatus.tfaforms.net/5060931 Join our Discord https://discord.gg/JAVWP7vTxt Email us: [email protected] mailto:[email protected] Learn more about Conversations with Tyler and other Mercatus Center podcasts here https://www.mercatus.org/podcasts.

Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.

• 0:04Tyler Cowen?

  Conversations with Tyler is produced by the Mercatus Center at George Mason University, bridging the gap between academic ideas and real-world problems. Learn more at mercatus.org. For a full transcript of every conversation, enhanced with helpful links, visit conversationswithtyler.com.

• 0:26Tyler Cowen?

  Hello, everyone, and welcome back to Conversations with Tyler. Today, I'm sitting at Harvard Law School, talking with Cass Sunstein. Cass is the most widely cited legal scholar of all time, among his other achievements. Congratulations for that. This year, he has, I believe, five, maybe more, books out. Some of them, he's been working on for a long time, so it's a little misleading. But he has On Liberalism and Defense of Freedom, which, if anything, will be our focus, a new book on manipulation, a book called Imperfect Oracle, on the strengths and limits of AI, a co-authored book, Algorithmic Harm, and also Climate Justice. Have I left anything out?

• 1:05Speaker 01

  I really hope that's the entire list.

• 1:07Tyler Cowen?

  And in February, there's one coming on Separation of Powers. Cass Sunstein, welcome.

• 1:12Speaker 01

  A pleasure and an honor to be here.

• 1:15Tyler Cowen?

  Now, your new book on liberalism is primarily a defense of the liberal concept, but if someone asks you, what's the most likely scenario for liberalism being self-undermining? What's your worry?

• 1:27Speaker 01

  Low probability. The likelihood is that we'll be undermined by anti-liberal and illiberal forces, not self-undermining. I think it's fair to say, or to worry, that liberalism doesn't create the conditions for its own self-perpetuation. So it's not as if it's self-undermining, but it doesn't necessarily maintain itself. And the reason is that a society that is flourishing needs a lot of stuff in it, including norms of cooperation, norms of charity, norms of mutual support. And liberalism, in my view, doesn't undermine those things, but other forces can undermine them. And it's not clear liberalism has the resources to respond.

• 2:12Tyler Cowen?

  And when you say other forces, do you mean hostile foreign powers? Or there's something illiberal in societies that is not sufficiently driven out by liberalism?

• 2:20Speaker 01

  I think there's something illiberal in the human heart. So I recently reread Orwell's 1984. And what kind of staggered me about it is that Orwell's of two minds. And that's the power of the book. So reading it the first three times I did, I thought this is a liberal book about the horrors of illiberal tyranny. But Orwell is into illiberal tyranny. He almost has an erotic connection to it. And that comes through the book. That's part of the power of the book. And so in the human soul, the idea of cruelty or suppression, or maybe in gentler form, an insistence on order, that's just there. And it occasionally triumphs.

• 3:04Speaker 01

  And liberalism is struggling. You know, you can say the better angels of our nature. That's probably a little too simple. But certainly the forces of freedom are combating other forces, which sometimes involve fear, sometimes involve security, and these can override liberal commitments.

• 3:22Tyler Cowen?

  Is there anything in your view to the Freudian critique of liberalism? That repression is inevitable and it comes out in illiberal ways. And it's just hard to avoid and keep civilization.

• 3:32Speaker 01

  I have on my door a quotation from Danny Kahneman, who in an interview kept saying, I don't know. And the interviewer started getting frustrated and said, well, what do you say? I don't know. What do you think? And Kahneman finally said, it's an empirical question and I don't have the evidence. It's not a matter of thinking. And so on the Freudian, I think Freud was a great kind of novelist. He had a great literary sensibility. Whether this is an empirical truth about repression, let's say the three beautiful words, I don't know.

• 4:06Tyler Cowen?

  You may say those words again, but do you worry about the fertility crisis within the context of liberalism? What if we just all disappear?

• 4:13Speaker 01

  Yeah, I do worry about that. That's a problem for things other than liberalism. But one of the things that's a problem for is liberalism. So I do worry about fertility.

• 4:22Tyler Cowen?

  Maybe it just means everything is self undermining, right?

• 4:25Speaker 01

  Might be. I do feel optimistic about long term. That's a character trait. So fertility, I think it's going to be okay. But that's more an article of faith than an empirical certainty.

• 4:38Tyler Cowen?

  Some of my friends on the right think that Islamic immigration is a major threat to European freedoms, and that is the result of a fairly liberal immigration policy. Do you agree, disagree?

• 4:48Speaker 01

  I don't agree. I do think that whether immigration is broadly speaking an excellent thing or a risk is something that there it's reasonable to have divergent views about, and some liberals are very open to immigration, that tends to be kind of the liberal tendency. But some people who believe in freedom and in the rule of law and in pluralism worry that excessive immigration can start undermining those things, partly because it might make pluralism not self-sustaining, some liberals worry, partly because it might mean there are illiberal forces in society, partly it might mean that people are just really mad at each other, and that's ultimately going to undermine freedom.

• 5:33Speaker 01

  I think the risk of being concerned about certain kinds of immigration is that it's inflected by, let's say, forces of hostility and stereotyping, and that liberals aren't excited about those forces.

• 5:47Tyler Cowen?

  But say some of the stereotypes are true. So there is a lot of cousin marriage in England, for instance. Sharia law can mean different things, but there to some extent that's in England as well. There's anecdotes about rape, which seems to be somewhat widespread within Pakistani, Muslim, Bangladeshi communities. Those individuals seem to exercise some power through the vote, influencing Labour on Middle Eastern policy. Aren't those real worries?

• 6:14Speaker 01

  They could be. Now, there are cultures in which horrible things are happening, whether those are rightly attributed to anything other than current, an assortment of current forces, and whether they're rightly attributed to something intrinsic to the culture. The liberal suspicion is the former, not the latter. To allow people in who are producing terrible things is not a good idea, and so screens on immigration, those are a good idea, whether the- The screen should be defined in terms of individual characteristics or of nation or religion. I would favor individual characteristics. But it can't be the case

• 6:59Speaker 01

  that the widespread concerns currently in Europe and the United States about immigration are rightly dismissed as a product of hostility or bad nationalism. There's clearly something that's fair in those concerns.

• 7:17Tyler Cowen?

  So if I think about how immigration restrictions are enforced, I sometimes worry liberal societies ultimately at some margin have to use illiberal means to keep out or deport immigrants. So I'm for more immigration, high skilled, low skilled. I'm very pro immigration, but I'm not for open borders altogether. So it seems there's always some margin where really a lot of people want to come to the US, the UK, a lot of other countries, and you're keeping them out ultimately using violence, or you're pushing them back out again in ways where you're dealing with actual human bodies. You know, it's not just regulatory. You're physically doing something to real people. It can be children. It can be babies.

• 8:01Tyler Cowen?

  Typically, a lot will be vulnerable people. What does that look like under liberalism?

• 8:05Speaker 01

  Okay, so there's Kantian liberalism, which says people should be treated as ends, not as means, and that everyone has dignity. That's bedrock. What it specifically entails for immigration policy is to be determined, but that's a central liberal foundation. Then there's Millsmore, let's say, romanticized utilitarian form of liberalism, and that doesn't have the Kantian bedrock. But the well-being of the people who are, let's say, being deported is something that is not a matter of indifference. These abstract foundations

• 8:47Speaker 01

  for liberalism don't entail concrete policies. So maybe I'll tell a story if I may.

• 8:52Tyler Cowen?

  Tell a story, yes.

• 8:53Speaker 01

  So I worked in the Department of Homeland Security most of the time. A special government employee for a year full time under the Biden administration. And my role involved weather-related resilience and simplification processes, and also regulatory policy with an emphasis, because of my background, on making sure things were legal. I didn't have a policy lead by any means. But since I had some role in regulatory policy, I went down to the southern border and I spent significant time there. It was really hot. And I saw a line of people who wanted to come into the country. It wasn't like a chaotic, crazy line. I saw a line of people.

• 9:35Speaker 01

  And I asked the civil servants who were running the border who they were. And they pointed to two people in front of the line who were Russian. And I said, can I talk to them? And they said, no. You work in Washington. You're not allowed to talk in their line. And I said, can I kind of acknowledge that they're there and ask them, are they okay? And they said, yeah, you can do that, but keep it really short. And so I saw two Russian men in their, I think, young 40s, strong, exhausted. And I asked them how they were. It was a tiny conversation. And you could see it was an unforgettable expression in their face of gratitude

• 10:16Speaker 01

  that someone was asking them how they were, a slight smile at humanity was. And I had three words go through my, more than three words. I had a phrase go through my head that I haven't heard that in my head unbidden. There but for the grace of God go I. That was the. And that, I think, is a liberal thought, that with a little twist of fate, or maybe Rawls' veil of ignorance, any one of us could be them. And that doesn't mean that everyone gets right to a full hearing before they get deported. But it does mean that recognition of the, let's say, moral equivalence

• 10:59Speaker 01

  of everyone on the planet is something that should ground our immigration policies, even if they are very aggressive at preventing unlawful entry, and I favor that, and appropriately aggressive, let's say, in deporting people who are unlawfully here, which is a completely reasonable policy.

• 11:21Tyler Cowen?

  Well, let's say we look at relatively liberal Western Europe, which has been a great place for a long time. Almost every country I look at is a right populist party, either in power or number one in the polls. There's even a recent poll, AFD is number one in Germany, Le Pen possibly number one in France. To me, they have a lot of bad policies, not just on immigration. So if I ask myself, how brutal does immigration policy have to get? And the bulldozer kind of sense to stop that from happening? What is your answer?

• 11:54Speaker 01

  I worked with Republicans a bit in Washington, and the sentence that we agreed was the right one was lawful pathways. So that has one implication, which is if people want to come in and do work, and let's start with waiters, seafood processing in Alaska, various forms of construction work. And they want to come in and there aren't American workers there who will do the jobs. This is a fantastic thing. It's a fantastic thing for America and it's a fantastic thing for those people. We actually have a program called H2B, which both the right and the left have been enthusiastic about, maybe more the right than the left.

• 12:39Speaker 01

  But the Biden administration went big on H2B. It's not perfect. It's a good program. It's a lawful pathway. And there are ones that I think you were particularly interested in, could be getting skilled people in who are completely amazing and can make our country more prosperous and ultimately lots more well being. Let them in. So that's lawful pathways. Then what you're focusing on is brutality with respect to unlawful pathways. When I was down at the southern border, I saw a Trump wall, I saw a Biden wall, and I saw Obama wall. Now, I know some things I had no idea that there were three walls.

• 13:20Speaker 01

  And I like the walls. I like the walls a lot. I thought President Trump was right to say, let's build a wall, just seeing it there. And I said to the people who are running the border, walls are good, right? They look great. They said, yeah, we need walls. But they said, we need three things. We need infrastructure, we need technology, and we need people. And what was meant was they can scale walls. And even if those are pretty high, the Trump one was a little higher than the Biden one. And I said, the Biden one's too short, isn't it? And they said, no. And I said, what do you mean? It looks kind of short. And they said, look over there. And over there, there was space between the walls. They said, they're not going to scale the walls. They can just go there. So they

• 14:04Speaker 01

  said they need people and technology. Now, does that need to be brutal? No. If you have a technology and a set of people and a wall that makes it very hard to people get in illegally, then there's, you know, if I can't get over a wall, there's no brutality, I'm just stuck. The idea of deporting people who don't deserve to be here, there's nothing necessarily savage about that. It's unpleasant for the people, but it has two good features. One is that it deters future illegality. And the other is that it ensures that people aren't here who don't have a lawful right to be here. Now, if you're here and you don't have a lawful right to be here, it may be for one or another reason, it's okay to

• 14:49Speaker 01

  keep you here. It might be that there are other people who were, let's say, Americans who depend on you. It might be that your kids or spouse are here. It might be that your employer needs you, and then there are things to be done, maybe. But brutality isn't intrinsic to the notion of no unlawful pathways and of punishing people who take unlawful pathways. And I think there's a way of doing it that is more in sadness than in anger, though if people are committing crimes, of course, some anger isn't a bad idea.

• 15:26Tyler Cowen?

  But if we give out visas, which we should to many, many people for all sorts of legitimate reasons, and people just overstay the visas, which they do in great numbers, as you know, to get them out, aren't we back to brutality?

• 15:39Speaker 01

  Depends on how we define brutality. So there's punching people in the nose, that's harsh. There's inflicting physical suffering on people, which could be excessive and savage. Or there could be just, you know, arresting people. And the need to define brutality, but there are-

• 16:02Tyler Cowen?

  But our prison system is pretty bad, right?

• 16:04Speaker 01

  Yeah.

• 16:04Tyler Cowen?

  And you're there for a while, the courts are overclogged, the people who work for the immigration service are not always the highest quality government employees. If it's Europe, there's maybe in the future, an electronic fence, you're in a very cheap boat, you might drown.

• 16:18Speaker 01

  Yeah.

• 16:19Tyler Cowen?

  It still seems you end up-

• 16:20Speaker 01

  Yeah.

• 16:21Tyler Cowen?

  -with a lot of unintended brutality.

• 16:23Speaker 01

  Okay, so I'm writing a book now about animal welfare. And there are trade-offs to be made between the well-being of non-human animals and human beings. Those trade-offs are less searing, the better our innovation. So as we innovate, so as to be able to house, let's say, chickens in less cruel ways, the trade-off gets better. As we innovate to have impossible burgers, which I like, or other meat-free alternatives, then the option

• 17:03Speaker 01

  of overcoming the trade-off grows. And I'm hopeful that in the area of immigration, where walls and technology are just one example, and the wall isn't especially Silicon Valley, it's old-style technology, I'm hopeful that technology will make these trade-offs less difficult. It is, of course, you're right, that there are forms of unpleasantness and worse that are essential for deterring and responding to unlawful entry. I think the liberal view is-

• 17:40Speaker 01

  This is something that some liberal thinkers, including Martha Nussbaum, have written about. There's tragedy. And to recognize that tragedy is inevitable is a way of keeping an incentive to reduce the number and ferocity.

• 17:57Tyler Cowen?

  There was a tweet you had today or yesterday where you mentioned some liberal thinkers, where you're going to be talking about them at some other event. I think it was Joseph Roth, Ullman Margalit, John Rawls, Ronald Dworkin, Jeremy Waldron, right? Great people. They're passed away, or they're much older. If you look at people, say, below the age of 50, 45, you pick the number, is liberal thought replenishing itself, where there's a new generation that will be comparable to them, to you, to many others? Or is it like an over 60 kind of thing?

• 18:29Speaker 01

  It's a great question. So if you look at Philosophy and Public Affairs, which is a journal which for a while was kind of setting the standard for philosophical work on liberalism, it was full of Rawls and Rawls criticism, and some of the work was fantastically good. Thomas Nagel was a frequent contributor. I think the great liberal thinkers now, who are younger, may be in the social sciences. So Ed Glaser isn't particularly young. I consider him a great-

• 19:07Tyler Cowen?

  He's great. I had dinner with him last night, but he's not that young.

• 19:11Speaker 01

  He is young at heart.

• 19:13Tyler Cowen?

  We're young at heart.

• 19:15Speaker 01

  He's a liberal thinker. John List is a liberal thinker.

• 19:19Tyler Cowen?

  Younger.

• 19:20Speaker 01

  And a great liberal thinker. The Esther De Flo is a great liberal thinker. She just moved to Zurich, I think, from MIT. So there is a set of economists who are insistent on freedom of choice and are liberal thinkers. Mark Pennington in the UK likes Foucault and likes Hayek. He's younger, and he's not an economist. So we're not seeing a flowering of engagement with liberal thought. That's for sure true. We are seeing a lot of work on agency and its limits.

• 20:02Speaker 01

  Sendhil Mullainathan, who is one of my favorite current thinkers. He's not philosophically focused, but he is just writing a paper now on behavioral economics where agency is moving to the fore. And it's behavioral economics and AI. And the idea is that this is going to empower human agency, which is central for him. I think he's a great liberal thinker. The book, Scarcity by Mullainathan and Shafir, Neither of the Mold, is, I think, a pathbreaking liberal book. I mean, it takes a while for people to write things that have a certain magnitude and they're

• 20:41Speaker 01

  25 something and 30 somethings who are gonna be on in the pantheon in a little while.

• 20:48Tyler Cowen?

  But why do you think it is that it's we economists who are holding the line, at least for the time being?

• 20:53Speaker 01

  It's a great question. I'm thinking, are the philosophers now at a stage when they're thinking about things other than liberalism? Is liberalism kind of a previous generation's focus? That might be the truth of the matter. Robert Goodden is a great liberal thinker who's not young, though he's doing fantastic work. He has a new journal called Political Philosophy. And I think if it's challenging for you and me to come to a long list of philosophers rather than economists, it might be just that their early career and what they're

• 21:35Speaker 01

  gonna look like when they're mid-career is obscure. Rawls did some work on utilitarianism when he was young, and would one have thought he's gonna be Rawls? Probably not. It was good work on utilitarianism. But a theory of justice came not when he was terribly young, and political liberalism came a lot later.

• 21:56Tyler Cowen?

  But we knew about you when you were young. Not just young at heart.

• 22:02Speaker 01

  That's because, I guess, I scribbled so much, people thought whether or not it's good, there's a lot of it.

• 22:09Tyler Cowen?

  Jeremy Waldron was pretty well-known as a liberal when he was reasonably young.

• 22:14Speaker 01

  I'm thinking that philosophers rise to prominence less regularly than economists, I think. And I'm not sure why that is. It may be that economists often have an empirical finding or an insight that's a little startling. It might be that the Harvard's philosophy department, like the Oxford philosophy department, just had something like what some cities have had, which have had just a flowering of people who are engaging with one another, a little like the Chicago School. So when there was, you know, Parfit and Sen and Dworkin were all together,

• 22:54Speaker 01

  that was, and Raz was in the vicinity, that was all a powder keg of thinking. And that's hard to assemble. And whether we would have had the flowering of liberalism, Bernard Williams, not a liberal, was there, but he was very much engaged with them, that's a little bit serendipity that we get a collection.

• 23:15Tyler Cowen?

  Do you think if Parfit is a liberal, because I think I don't, much as I liked him.

• 23:19Speaker 01

  I do, because what matters argument about contractarianism and utilitarianism and Kantianism, all coming to the same sets of conclusions. I think this is a profoundly liberal view, both in his embrace of contractarianism, so Scanlon is a hero of his work, and in his search for multiple foundations for the same set of commitments, which is a liberal inclination. It's like Rawls's idea of the overlapping consensus. And I have enthusiasm for incompletely theorized agreements where people can say, I like free speech because I'm a Kantian, or I like it because it's the best way of discovering truth,

• 24:02Speaker 01

  or I like it because I'm a utilitarian and it's going to maximize utility. So lots of stools for freedom of speech. And Parfit was, I think, a very enthusiastic and committed searcher for the commonalities among three very different sets of philosophical commitments.

• 24:22Tyler Cowen?

  But I think of him as weak on individualism and autonomy and the notion of the self, and that he ended up in a fairly extreme version of effective altruism that Bernard Williams was always pushing back against. And he thought the notion of dessert had no meaning, and it was important to convince people of that. And those are not exactly liberal views. They can, he was pro-free speech, but they can lead you in a lot of different places, some of which concern me.

• 24:49Speaker 01

  That's fair. I think Parfit's later work on the three foundations and their commonalities is extremely interesting and quite liberal and not really convincing, though amazing. The work that you're concerned about is a form of philosophical thinking that isn't my favorite. It involves designing exotic cases and then seeing what our intuitions are about those cases and giving them authority. And our intuitions about exotic cases, we know with respect to multiple things, are unreliable with respect to predictive judgments

• 25:33Speaker 01

  or factual judgments. And in the moral domain, I think it's the same. So Parfit, some of the anti-individualist and anti-identity and self stuff, the stuff that looks illiberal and also looks brilliant but peculiar, I think he's replicating the early research agenda of Kahneman and Tversky, coming up with very exotic cases and then asking himself what he and others think about them, and then giving those things authority. And we know from Kahneman and Tversky's work, then the domain of predictive judgments or factual judgments, that's not very sensible, because the intuitions people have about exotic cases

• 26:14Speaker 01

  are self-contradictory or violate elementary logic. And that's not a bad thing about people, or it's that our automatic judgments or our intuitions aren't suited for exotic or unfamiliar cases. Why should they be? And Parfit seems to me, in his, let's say, ambiguously liberal or illiberal conclusions, pursuing that less than fully promising research agenda.

• 26:41Tyler Cowen?

  Now, one of the most interesting features of your liberalism book is you have a fair man of sympathy for Ludwig Mises, which is unusual these days. Even a lot of people on the right don't. What do you find most interesting in Mises?

• 26:53Speaker 01

  His kind of cranky, ill-tempered elbows-out enthusiasm for freedom. So, he doesn't have the measured, I think, systematic quality of Hayek, but he has some of the central insights, and he had them earlier. And when he talks about why people don't like capitalism, he has some later in his career essays on that. There's something, it has a little of the not-wonderful flavor of Ayn Rand, a little, but it's not as brutal, and it has curiosity as well as fervor, and there's truth in it. And his excitement about capitalism

• 27:38Speaker 01

  and what it generates for people, it has a humanistic quality, notwithstanding the elbows.

• 27:46Tyler Cowen?

  And if we take Hayek, other than the fact that on economics, he would be more laissez-faire than you probably would be, but at a more conceptual level, what's your greatest reservation about the thought of Hayek?

• 27:57Speaker 01

  I think the fundamental argument of The Road to Serfdom isn't true. So, I think it's one of the greatest books in the last 200 years, but the thesis that if the government starts regulating economic matters, à la Roosevelt, then we're on the road to something like Stalin or Hitler, that's not true.

• 28:17Tyler Cowen?

  It doesn't have to be Stalin or Hitler, but if we look at Trump, he's taking shares in the lithium companies and Intel, rare earths companies. It's not going to be Stalin or Hitler, but won't it be uncomfortably state-capitalist and corrupt, and if not fascist, just a place we don't want to go? And some milder version of Hayek, maybe with like a 70-year lag or 90-year lag is in fact correct?

• 28:41Speaker 01

  Okay, so, "A Road to Someplace We Don't Want to Go" is a less riveting title than "The Road to Serfdom." But I agree with that, and I agree with what you said about the Trump initiatives, the control of private companies. This is not a good thing, except maybe very temporary and emergency circumstances. So I agree with that, but the individual claims of the road to serfdom are convincing, most of them, and beautifully put. The idea that if you do something like what, let's say, the United States has been doing since Roosevelt, or what the UK has been doing

• 29:22Speaker 01

  for a long, long time, that we're going to end up in a place that is not merely risky to economic growth and freedom, but horrifying, which I think Hayek thought, that's not true.

• 29:37Tyler Cowen?

  Now, feel free to challenge the premise of this question, but how did some aspects of our liberalism, mostly on the left, evolve into a kind of anti-liberal woke-ism and intolerance? What conceptually went on there?

• 29:51Speaker 01

  That's great. Okay, so I think that the form of liberalism that is the origin of woke is Mill's book on the subjection of women, which is one of the great liberal texts.

• 30:06Tyler Cowen?

  Very best books of all time, on anything, right?

• 30:08Speaker 01

  It is phenomenal. It has a picture, which I think is an accurate picture, of the subordination of one group to another. It has clarity on what that does for the preferences and values of both groups. It has the notion of adaptive preferences in it, which is potentially a liberal idea, because it ceases to give authority to preferences. In Mill's hands, I think it is a profoundly liberal idea. The idea of the subjection of, and then fill in the blank, permeates woke, and it is a legitimate liberal insight and

• 30:48Speaker 01

  kind of precept that this is a problem that needs to be fixed. Even to describe in that terms is probably inadequate. But it can lead to illiberalism in the form of failure to listen to people, dismissiveness, both of the views of the people who are allegedly or in fact subordinated, and of the views of the people who are allegedly or in fact subordinating. It can lead to a kind of arrogance of the social engineer, which is worse than that of the technocratic social engineer, in the

• 31:30Speaker 01

  sense that it's finger wagging at people. The word finger wagging is too gentle. It's shaming people all the time. And so one thing that I think I haven't gotten this clear enough in my own mind, but one thing the woke left, let's say, has gone wrong with, both in terms of strategy, but also in terms of how to be in the world, is a kind of arrogant, the word shaming is kind of right, shaming of people who are deserving respect. And that is ultimately going to undermine liberal commitments, because you're not showing respect for people.

• 32:15Tyler Cowen?

  Is this why Hayek turned against Mill, or you think there's some other reason? He was too grumpy, too Viennese, too something?

• 32:24Speaker 01

  So I think Hayek didn't get Mill. So I love Hayek's book on Mill, and I think it's enduringly mysterious. There's a book to be written about Hayek's book on Mill. Hayek's book on Mill, I expected to be a book on Mill. What does he think of On Liberty? And I've learned from Hayek scholars that Hayek was very ambivalent about On Liberty. He thought the harm to others was a license to regulate. That's interesting. But he didn't write that in his book on Mill. Instead, he basically reported, after obsessive work, I think, two years of work, on the correspondence between Mill and

• 33:06Speaker 01

  Taylor. And the correspondence is one of the closest things we have to the correspondence, the fictional correspondence in my favorite book, which is By Its Possession, where the letters are ones of surpassing beauty, and the ones Mill wrote Taylor, and particularly Taylor wrote Mill, were You know, out of this world in their grace and connection and delicacy. And they make delicacy into something that is not at all a beautiful piece of silverware, something much more bloody than that. And Hayek did that. Hayek did that. But in the end, he says, you know, Taylor wasn't that great.

• 33:50Speaker 01

  And Mill was kind of feminine and wanted to subordinate himself to a strong woman. And I think, Hayek, you don't understand anything about Mill. The book on liberty is not about, you know, rationalism in the sense that Hayek didn't like. It's about liberty in the sense that Hayek should like. And it's not about free markets, but it's about finding a path. And the path might be a love affair, or the path might be a passionate commitment to, and then fill it out. And there is something romantic about that.

• 34:33Speaker 01

  And Hayek didn't get it. And I find this super interesting because Hayek himself, around the time he did this book, was in the midst of an illicit romance of his own.

• 34:45Tyler Cowen?

  That's right.

• 34:46Speaker 01

  That had some overlap with Mill's. And it can't be that that's irrelevant. So how could Hayek not get it? I want to say to the revered Professor Hayek, you aren't a cold fish, are you?

• 34:58Tyler Cowen?

  If we look at second-term Trump world, America, do you sometimes think, especially when you're on Twitter, well, the woke were right after all. There were all these excesses. They were bad. We shouldn't cancel people. But when you see what things look like when they're not so active, and maybe it's a bit like some parts of Jewish law, that to stay kosher, you have to overreach and have these impossibly strict standards, which maybe don't make sense, but if you don't have those, no one follows anything at all. Do you ever have that thought, like, the woke are now quite underrated?

• 35:36Speaker 01

  Okay, so the woke are taking such a beating now that piling on seems not a very nice idea and also seems stupid. On the other hand, it is true that those of us, and you're probably among them, who receive woke stuff in the email, maybe from an institution, maybe from people who are colleagues, it seems a little like lazy cliches. So, a story that a student came into my office a few years ago and said she wanted to write a paper on how the law constructs the body. And she was obviously very smart, and I said,

• 36:17Speaker 01

  "What does that mean?" And she looked at me very puzzled, and I said, "What do you mean by that sentence?" And she said, as if it was an amazing puzzle that I would ask, she said, "You mean the law doesn't construct the body?" And I said, "I don't have a view on that yet. How would we know whether the law constructs the body?" And the idea that the law constructs the body had become like a thrilling thing. And she was very smart, so she could have-

• 36:51Tyler Cowen?

  I don't even know what that means.

• 36:52Speaker 01

  I had no idea. That was the problem with the proposed paper, the proposed thesis, the proposed book, that neither she nor I knew what it meant. But there are things like that all over, let's call it the land of woke. But I want to be really careful here, because if what the land of woke is, we use that word, and it seems not very warm about what's being said, if it's things like the work of Catherine McKinnon, which I greatly admire, she wrote Sexual Harassment of Working Women, which is an amazingly important book, and she's written material on pornography and on prostitution that is

• 37:33Speaker 01

  a very large step forward. And to say that McKinnon's stuff is woke would be extremely foolish.

• 37:41Tyler Cowen?

  I'm going to name some liberal thinkers, and you tell me what you find a value in them. But if you don't like them at all, that's fine, just say. So Karl Popper.

• 37:48Speaker 01

  Oh, he's very good on what's, how to figure out what's true and what's not true. He's also pretty good on freedom of inquiry.

• 37:56Tyler Cowen?

  Any reservations about Popper?

• 37:58Speaker 01

  Didn't have much of a sense of humor.

• 38:01Tyler Cowen?

  Wilhelm von Humboldt, the German thinker.

• 38:04Speaker 01

  I think I want to say I've read some, but I have no particular thing to say, except that some of his, the breadth of his understanding of the human spirit is a nice addition to the liberal canon.

• 38:20Tyler Cowen?

  John Dewey.

• 38:21Speaker 01

  Great, great, great, great, great, great, great. He didn't write like a dream, but he wrote a beautiful sentence, which is, be the evils what they may, the experiment is not played out, speaking about the United States.

• 38:36Tyler Cowen?

  Edna Ullman Margulit. You knew her well, right?

• 38:39Speaker 01

  I did. She was my co-author. I think she's one of the great philosophers of the last decades, underappreciated, and that's because she did the best work there is on the invisible hand. She did the best work there is on norms. She did the best work there is on presumptions, which is very important to life and to law. She did the best work there is on considerateness, which is what she did shortly before she died, and the fundamental nature of considerateness to social life is something that had been unexplored. And she did the best work there is on big decisions, when calculation of the costs and benefits is super hard, because our values are going to change.

• 39:24Speaker 01

  So, everything she wrote was like a diamond.

• 39:28Tyler Cowen?

  The New Zealander Jeremy Waldron on judicial review. Do you buy any of it?

• 39:32Speaker 01

  I don't like it at all, but it pains me to say that, because I really admire Waldron. I think he's one of the greats. The reason I don't like what he says about judicial review is, there's a contingent argument against judicial review, which depends on our judgments about the institutional capacities of judges, of the executive, of the legislature. It could be if the judges are stinky and the legislatures are amazing and the executive is reliable, what's the point of judicial review? But it seems to me, the argument against judicial review can't be a priori, that there aren't- Large sounding claims about self-government that can make that claim work.

• 40:16Speaker 01

  If the judges are exercising judicial review to make self-government better by protecting, let's say, freedom of speech in the franchise, then hooray for judicial review on democratic grounds. So Waldron has done such great work on so many things, including homelessness in a very much underappreciated essay. This material is, sorry, Professor Waldron, it's not my favorite of your great work.

• 40:42Tyler Cowen?

  How do you think it's gone in New Zealand, which now has more judicial review, but historically has hardly had any? It seems fine. They have big problems, mostly related to their size and distance. But it's a free country, right? It's highly liberal.

• 40:56Speaker 01

  Completely. So I'd want to know more about New Zealand before making a final judgment, or even a almost final judgment. But the idea that judicial review is in tension with self-governance is a little like an argument by adjectives and nouns, that if you have a judiciary that's protecting certain rights that are essential to democracy itself, then judicial review is a friend of democracy. If you have a judiciary that's protecting, let's say, rights of person against intrusion or rights of, or the rule of law, those things may not be part of democracy, they might be antithetical to it.

• 41:39Speaker 01

  But the form of democracy we want, I say, is a liberal democracy. And of course, you're protecting the liberal part bolded in the face of the democracy part, in this case in small font. That's okay.

• 41:54Tyler Cowen?

  Is there a great thinker of indigenous rights and liberalism? In the US, it's so complicated. There's tribal nations, they're sovereign. But it's all a mess, right? Who should we read to understand that conceptually?

• 42:07Speaker 01

  It's complicated.

• 42:08Tyler Cowen?

  There's Maori in New Zealand, right? Canada, the whole world.

• 42:12Speaker 01

  There's a new book out called The Arrogant Ape by Christine Webb, which I greatly admire. And it's about non-human animals and about human exceptionalism. And it's an extremely powerful book. She's not a philosopher, she knows a lot of philosophy. There are closing chapters on indigenous people and their attitude toward non-human animals. I've learned from it and I find it an opening into thinking of, let's say, an expansive form of liberalism. I worry that in some hands, the words indigenous peoples are surrounded by celestial music

• 42:56Speaker 01

  and there's a sentimentalizing. But in this book at least, there's a conception of the relationship between nature and persons that is interesting, and nature meaning the whole thing, including living creatures. Will Kimlikah has done some interesting work on this. And speaking of liberals who aren't always in the canon, I think Kimlikah is very good.

• 43:21Tyler Cowen?

  Why is it so hard to blend those two topics? And certainly on the political right, you see almost nothing, right? Maybe there's some amount of scorn for the issue, but not much that's serious on the left. You mentioned some things, but you're a bit halting as well. What if, you know, why is that?

• 43:38Speaker 01

  Well, I think first you have to know things and then you have to specify how what you know bears on the right conception of liberalism or vulnerabilities in liberalism. If it's the case that indigenous persons X, Y, and Z are treating each other with respect and creating an economy that allows everyone to flourish, that may or may not turn out to be particularly interesting. So it might be hugely important and something to celebrate, but it might not be particularly interesting in thinking about what a liberal society looks like.

• 44:20Speaker 01

  So what would we have to learn from some society which isn't familiar, such that we know something new about liberalism? I mean, there may be something there. We might learn that there's some interest in norms and how they fulfill the function of law and how people internalize norms in indigenous societies that make things stable and basically good. But I'm halting partly because of my own extremely limited knowledge of this material.

• 44:52Tyler Cowen?

  But that's indigenous too, right? That is itself interesting. I know much less about it as well.

• 44:57Speaker 01

  Yeah. Well, it would be interesting to learn more. Next project.

• 45:01Tyler Cowen?

  I have some questions about AI and liberalism. Now, as you well know, under US law, there's a general right to be informed and told things. Does this mean that AIs should, in essence, have First Amendment freedom of speech rights?

• 45:15Speaker 01

  Let's take it in the following ways. A toaster doesn't have free speech rights. A vacuum cleaner lacks free speech rights. I'm looking at a glass of water now, and though it's very attractive and a little bit alluring, it lacks free speech rights.

• 45:30Tyler Cowen?

  But it's not telling you anything. If it could tell you things.

• 45:33Speaker 01

  If a toaster, a toaster tells you things, toast is ready. A vacuum cleaner could certainly tell you things, almost done, or why is your rug so messy? And it wouldn't have free speech rights. So let's say ChatGPT or Grok is a communicator, but they lack free speech rights.

• 45:55Tyler Cowen?

  But you have the right to buy an alarm clock, correct?

• 45:57Speaker 01

  Not a constitutional right, probably.

• 46:00Tyler Cowen?

  Really?

• 46:01Speaker 01

  Yeah.

• 46:01Tyler Cowen?

  It'll tell you things, time to get up, right?

• 46:04Speaker 01

  If the government banned alarm clocks, it might be irrational, so struck down as such, but it wouldn't be like a free speech right. But I'm going to get in the direction of a yes in a moment. So you're right that there's a right to receive information. So there was a case where communist was forbidden from coming into the United States. The Supreme Court says, said the foreign communist doesn't have free speech rights, but the people are trying to invite him to come here, they do have free speech rights. So if you're engaging with Grok and the government tells you, you can't ask Grok any question about Israel, that's a violation of your free speech rights.

• 46:48Speaker 01

  Now, partly because you have a right to receive information, and partly because you can't receive information about Israel, that would be a content-based restriction, which would be forbidden so long as there's a human interacting with it. And content-based restrictions are presumptively invalid under the First Amendment. So, keep in mind, what I'm saying now is not that AI has First Amendment rights. It's that people have First Amendment rights. People have First Amendment rights, particularly in the face of viewpoint-based or content-based restrictions. If the government said you can't engage with Grok between the hours of 1:00 a.m. and 5:00 a.m., that would be a content-neutral restriction.

• 47:33Speaker 01

  And it's possible that there'd be a question to be raised whether that could be defended. But it's going to be hard to defend that one, because a content-neutral restriction needs a justification. And what's the justification of that? If it said that people can't... I tried, by the way, to get a large language model to libel someone. It refused. If... not to send it to all the world, just to send it to me. So, this is self-protection.

• 48:01Tyler Cowen?

  But they'll do it if you try hard enough.

• 48:03Speaker 01

  I didn't try hard enough, I guess, but it wouldn't libel people. I didn't say to libel any particular person. I said, "Libel... do a libel." They said, "I won't do that." But then I asked it to do an advertisement suggesting that aspirin could prevent cancer, and it produced a really good advertisement. So, yes, that's false advertising. False advertising isn't protected by the First Amendment. Certain forms of libel aren't either. So, now we're building up a framework of where AI has First Amendment rights in the sense that government regulation of AI is subject to First Amendment restrictions. So, I think we should say that AI is like a vacuum cleaner or toaster. Let's say a speaking one. It lacks those rights.

• 48:46Speaker 01

  But there are people in the situation who have rights. And the producers of AI have rights, just like the producers of movies have rights. So, a technology that projects the movie doesn't have rights. But if you suppress the movie, some human beings behind it have rights. And the fact that AI, let's say, is generating on its own stuff wouldn't be justification for ignoring the rights of the people who are behind the AI.

• 49:14Tyler Cowen?

  As you know, there's more and more co-authored outputs, human plus AI. Is that covered by the First Amendment?

• 49:21Speaker 01

  It depends. So Imperfect Oracle, my book, and Manipulation also have some quotations from AI. If the government said these are censored, that would clearly raise a First Amendment problem, which the government couldn't overcome. If the government said we're going to ban the components of Imperfect Oracle that consist of text from AI, that would be unacceptable also because it's part of my own production. If the government, let's say in the face of the University of California system, said that students can't do papers that are co-authored in whole or in part by AI, that's acceptable, not because there

• 50:04Speaker 01

  isn't a human speaker behind it, but because the government here, university system, which is a public one, the government has an adequate reason to say that we're not going to allow that kind of plagiarism.

• 50:17Tyler Cowen?

  Yeah, but it's not a free speech issue. Just as a matter of speech, I would think co-authored outputs would be fully protected.

• 50:23Speaker 01

  I want to be careful here. The reason that I'm giving the university example because if the university system said students and professors can't speak unfavorably about Israel in their papers, that would violate the First Amendment.

• 50:37Tyler Cowen?

  Right.

• 50:37Speaker 01

  If they said you can't use AI, that almost certainly wouldn't be, though maybe in the fullness of time it'll leave real question. And the reason is, speech is sometimes regulable if it falls in categories where there's sufficient justification or a wholesale exclusion. If it's said that deep fakes can't be used to sell food, where the deep fakes are a collaborative effort of AI and people. It's not clear that regulation is forbidden by the First Amendment. It might be, because it's hard to see why they're doing that. But this is just a way of saying that the collaborative effort might be regulable

• 51:19Speaker 01

  because, let's say, the collaborative effort consists of commercial fraud. Collaborative effort might be criminal conspiracy. Those are just wholesale exclusions, but they're hard-won exclusions. That is, they're argued for, and the argument won. If there's a collaborative effort that isn't within the domain of the currently regulable, we can probably imagine somewhere it would be hard to know whether it's protected by the First Amendment. But basically, a collaborative effort by, let's say, a presidential candidate and an AI to produce a speech, completely protected by the First Amendment. A collaborative effort by you and AI, let's say, to produce a book on the greatest psychologist

• 52:02Speaker 01

  of all time, that's going to be protected by the First Amendment.

• 52:05Tyler Cowen?

  But can't you imagine an AI company that generates AI answers, but, you know, a second before they're released to the human interlocutor, they just have some other human who works for them modify the answer a bit, not materially, and maybe we don't know how much, but they can truthfully say this is co-authored output. And then they say it's all protected by the First Amendment, because it's AI and humans. And de facto, you end up with complete AI First Amendment protection.

• 52:30Speaker 01

  I think the way in is to get concrete on what the speech is and what the reason for regulating it is. So if I am working with AI, let's suppose I'm working for a political candidate, and it's mostly AI, but like a little bit me, and it ends up being the words of a presidential candidate, that can't be regulated. The idea that you can regulate a politician's speech because AI played a significant role, or maybe the entire role, that's very hard to defend. Now, we would have a frontiers issue, I guess, if there's a law. It seems kind of crazy, but a law saying that no politician may give a speech which is entirely produced by AI, that would be a new question.

• 53:15Speaker 01

  Probably come out unfavorably to the law. If, on the other hand, deep fakes are restricted on the ground that and when they give a misleading picture of some person in a way that is either libelous or libel adjacent, then it might well be reguable.

• 53:36Tyler Cowen?

  If writing code is First Amendment protected, and again, you can push back on that, but is open source AI then just gets off scot-free?

• 53:45Speaker 01

  It isn't First Amendment protected, did you mean?

• 53:47Tyler Cowen?

  Well, I'm asking. In some ways it is, right? It's a form of speech.

• 53:50Speaker 01

  Okay, this is what's cool about First Amendment law, I think. It's one reason it's lovable, is that we need to know what the speech is and what the ground for regulation of it is. So if there's open source stuff that is regulated by the government, it's communication among persons. So why was the ground for the regulation? If it's an open source activity is producing a massive national security threat, then it's probably okay to regulate it if there's no other way to reduce the national security threat. If it's the government is trying to help the economic interests of competitors, that's not an adequate justification.

• 54:35Tyler Cowen?

  Circa 2025, which are the manipulations that pose the greatest danger to America?

• 54:41Speaker 01

  Probably political information that makes it hard for people to have a clear sense of what the world is actually like.

• 54:51Tyler Cowen?

  So just outright false reports?

• 54:53Speaker 01

  Well, I want to distinguish between falsehood and manipulation just for the sake of tidiness. So if you say that climate change isn't real, in my view, that's false. If you have no false statement, but you induce people not to use their reflective capacities, you trick them into thinking that climate change isn't real, that would be an act of manipulation.

• 55:18Tyler Cowen?

  Legally, is there anything we should change?

• 55:20Speaker 01

  I think so. I think we need a right not to be manipulated. We don't have that. So at the turn of the 20th century, roughly, people started to get exercised about violations of the right to privacy, where the right to privacy was a pretty new idea, at least the umbrella, and then it started to get specified in various ways. And that was a big step forward for policy and also for legal theory. And we're kind of there in the world of a right to privacy. Manipulation is like that now, so no legal system has a right not to be manipulated. In Europe and the United States, there are incipient movements toward that. I think the government, our government, said publicly, there should

• 56:02Speaker 01

  be a right not to be manipulated about a year or two ago. How would it be specified? I think we should start with egregious cases where people are losing money or time without getting adequate clarity on that's what's happening to them. It might be, for example, through hidden term, which isn't technically invisible. It's just hard to find. And the user is, or the seller, is getting you to buy something, subject to terms and conditions which aren't readily visible to you.

• 56:33Tyler Cowen?

  That's almost like fraud, right? There's another way of taking care of that.

• 56:37Speaker 01

  Well put. It's almost like fraud.

• 56:38Tyler Cowen?

  Yeah, maybe it is fraud.

• 56:40Speaker 01

  But no, it's almost like fraud. It might be fraud. But if the term is there, no fraud, just manipulation. And so that's...

• 56:48Tyler Cowen?

  What's a tweet I should be able to sue someone for that I cannot sue them for today?

• 56:53Speaker 01

  Don't buy imperfect oracle. Okay, that's not an example. I think we want to have a lot of room for free tweeting. And I wouldn't want to go far beyond our current categories of libel, fraud, criminal solicitation. If there's a commercial actor who is manipulating you to buy something, where manipulation is a form of trickery that makes it very hard for people to exercise their deliberative capacities, that would be a big problem. If you enter into a transaction, let's say, and you were told, but it's not easy to see,

• 57:35Speaker 01

  that you are forming a long-term economic relationship in which you're giving money every month, that should be something that you should be able to extricate yourself from, that related, commercial relationship.

• 57:46Tyler Cowen?

  Do you agree that whether we like it or not, laws against libel have become much weaker? Anonymous posting is easier. Postings are more international. The Streisand effect is stronger. So the incentive to complain, you say, oh, let it pass if I complain, it will just be a big thing on social media. And if laws against libel de facto are much, much weaker than they used to be, is there some change we should make to adjust for that? Or we simply have to let it happen?

• 58:12Speaker 01

  Okay, so I'll take a risk here and tell a story. So there's a book coming out on nudging, which is not a very upbeat book about nudging.

• 58:25Tyler Cowen?

  Not by you?

• 58:26Speaker 01

  Not by me. I'm very upbeat.

• 58:28Tyler Cowen?

  So there are books not by you?

• 58:29Speaker 01

  This one is very critical, which is completely fine. But the description on Amazon is so full of inaccuracies. You know, I'm very welcoming to the criticisms in the book, but I'm not welcoming to the inaccuracies that I was staggered by it. I hope by the time this appears, they've been taken down. But I actually thought this is not libelous, probably, but in the extended universe. And that made me think about your question. So to invoke libel law is extremely expensive and a very hazardous enterprise.

• 59:13Speaker 01

  On the one hand, that's good, because as the Supreme Court said in New York Times against Sullivan, if you punish actual libel, you deter people from saying things that might be true or might be extremely productive to have in the conversation, even if they're not really true. So to allow lots of descriptions on Amazon, even if they describe the work of people we know in ways that are extremely tendentious, that's good. We should allow all that. On the other hand, I do think that the fact that you can't get, let's say, an acknowledgement of error and a penny.

• 59:51Speaker 01

  A Trump penny, let's say, plus an adage, an error, is regrettable. So let's say someone says, knowing that it's false, that some public figure is a drug addict or a communist. And if you know it's, if the person knows it's false, then under your times against Sullivan, you can win. Let's say it was negligent. It wasn't knowingly false and there wasn't reckless indifference to the matter, but it was really negligent. They said the person was a communist. They should have known it wasn't true. And then the person sues and says, I want a penny and I want a correction. Why is that bad?

• 1:00:31Speaker 01

  So what I would do to the regime is to allow people to sue for a very small monetary sum and a correction slash retraction in the event of damaging falsehood, even if the speaker was merely negligent. And maybe if the speaker wasn't even negligent, but just got it wrong.

• 1:00:53Tyler Cowen?

  So five years from now, should we have such trials run by AIs? It would be much cheaper, right?

• 1:00:59Speaker 01

  I think the idea of AI trials looks very thinkable today. And what role for the human overseer is TBD? We're not there yet, but with respect to certain things, it would be very disagreeable to many, and maybe that's a reason not to do it. Maybe it would be decreasingly disagreeable to many as people see well-functioning AI as in airlines and increasingly motor vehicles. So this is at least something to be discussed. I work a lot on the topic of algorithm aversion. We have some research on that and also on AI aversion, where we have less research.

• 1:01:43Speaker 01

  Some of algorithm aversion, a cousin of AI aversion, is based on just mistakes, but some of it is based either on a belief that in some contexts, human beings will know things that algorithms and AI don't. Maybe that's decreasingly true, but it's true in some contexts. And it's also based on a belief that a human, let's say, judge or participant is deeply sought, even if accuracy isn't increased by virtue of human engagement.

• 1:02:15Tyler Cowen?

  The ostensible right to a jury by one's peers, does that matter here?

• 1:02:19Speaker 01

  Well, it is a formal legal matter, yes. So the jury trial right until the Constitution is amended, which is unlikely, would trump AI advances? And then we'd ask, should we be excited about that or ambivalent? We might be excited about it on the ground that the jury isn't supposed to only figure out what's accurate. It's also supposed to bring the conscience of the community to bear. And I was on, I served on a jury, by the way.

• 1:02:50Tyler Cowen?

  They let you?

• 1:02:51Speaker 01

  They let me. I tried to get off. I said I was a law professor who works on jury behavior. And I thought that would certainly get me off. And I was included. And then after the trial, the lawyer for the prosecution actually wanted to talk to me to ask what I thought of his performance, which was very generous of him. He lost, the prosecutor. He did a pretty good job. But he talked to me and the judge was there. And I said after our discussion, how come I was allowed on the jury? And the lawyers, all the lawyers were there, saying, we wanted you off, but the judge wanted you on. And I said, why did the judge want me on? And then the judge said, I thought you studied jury behavior, you should be a juror. Now, it's not completely appropriate for a judge to insist over the objections of

• 1:03:34Speaker 01

  the lawyers, but this was Chicago and we're all informal here. But one thing I learned being on a jury, I learned close up, of course, this is part of the common wisdom about juries, is that juries bring to bear some assessments that are accuracy independent, moral, moral views. Now, if you had a AI that would track jury moral assessments, and you're way ahead of me on this, that you would be able to embed the thing you got from a jury in AI. People wouldn't like that very much. And so there'd be a strong presumption against it in terms of actual practice. And in any case, the Sixth Amendment wouldn't allow it.

• 1:04:14Tyler Cowen?

  Why is "By Its Possession" your favorite novel?

• 1:04:16Speaker 01

  Well. It captures the intensity and specificity of romance and the unknowability to outside observers of what exactly happened. In a way, no other work in any language, I will say, does. And I'm smiling because, of course, I have only one language, really. But that's how much I like it. The letters between the main characters are searing in their specificity of and they're showing not telling about emotions.

• 1:05:00Speaker 01

  The ending, which I'm not going to spoil, has a twist in it, which is both heartbreaking and impossibly joyful about what, forgive the word, love can do. The twist on the tale of the Garden of Eden in the closing pages of the next to last chapter is, you know, t equal Genesis. And that's really hard. I think Byatt kind of did. And not only equal it, but she turned it around.

• 1:05:36Tyler Cowen?

  Have you ever lived a tale like that?

• 1:05:38Speaker 01

  Maybe.

• 1:05:39Tyler Cowen?

  Maybe. What's a good movie that has shaped how you think about the law?

• 1:05:44Speaker 01

  I have to say that partly because I spend so much time on them, the first thing that comes to mind is, drum roll, please, Star Wars. And they are profound about the law, but they're unforgettable about the law, about liberty and tyranny and freedom. And so they both connect with themes of liberalism about you always have freedom of choice in small settings and large settings. And that, you know, that says something about law. I find most law movies not so good.

• 1:06:24Speaker 01

  It's a little like most sports movies, not all, but are a little, they have a gee whiz quality. So I'm sticking with Star Wars.

• 1:06:36Tyler Cowen?

  In the television show Bewitched, who's the best secondary character? Is it Uncle Arthur, Serena, Andora, Larry Tate?

• 1:06:43Speaker 01

  Serena, who didn't fall for Serena? Elizabeth Montgomery was my first crush and Serena was kind of more, what's the right word, less of a, less committed to Darren.

• 1:06:57Tyler Cowen?

  Who was better as Darren or Derwood, Dick York or Dick Sargent?

• 1:07:01Speaker 01

  Dick York was better, but I saw recently an interview with Elizabeth Montgomery. I think either she or someone who's involved in the show who said Dick York liked her a little more than was comfortable. So Dick Sargent has, I think, maybe a more congenial character, the person to whom I'm loyal, which is Ms. Montgomery.

• 1:07:25Tyler Cowen?

  And why is that an interesting TV show?

• 1:07:28Speaker 01

  Well, I think for all of us, the idea that someone can do magic, if it's done right, it's very cool. And Harry Potter, of course, benefited from that. The idea that there's a person who seems like normal and a neighbor who has magical properties, that's very fun. And Elizabeth Montgomery carries the show. She both portrays a normal person who goes to dinner parties and is a great spouse and mother, but also someone who can basically do anything. And then she's funny.

• 1:08:08Tyler Cowen?

  And there's a sense of law on the show, right? Maybe it's Holman-Margalit law, but you can't just do anything to the other witches and warlocks, so you'll get in a lot of trouble.

• 1:08:17Speaker 01

  Completely, so there are rules.

• 1:08:19Tyler Cowen?

  That's right.

• 1:08:19Speaker 01

  If there were rules, it would seem random.

• 1:08:22Tyler Cowen?

  But they're broken all the time as well.

• 1:08:24Speaker 01

  They're broken, and that's funny.

• 1:08:25Tyler Cowen?

  And that's where episodes come from.

• 1:08:27Speaker 01

  Yeah.

• 1:08:27Tyler Cowen?

  When you visited the Bob Dylan Museum in Tulsa, what did you learn about Dylan?

• 1:08:33Speaker 01

  A lot. I think the principal thing I learned is how he took standard songs that were classics and twisted them in directions that made them new, not only by, you know, doing things to the, to the music, but also by taking words that had a certain meaning back then and giving it them a different kind of meaning. So Chimes of Freedom, which was an Irish song originally, and you could see the evolution of Chimes led to Chimes.

• 1:09:07Tyler Cowen?

  Wasn't that a Scott song, Chimes of Freedom?

• 1:09:09Speaker 01

  Well, I'm married to an Irish woman, so when I hear Scott, I think Irish. I think it was Irish, but maybe it was Scott.

• 1:09:15Tyler Cowen?

  Yeah. Anyway, sorry, go on.

• 1:09:17Speaker 01

  So the way he built on, I think this is how all geniuses work, actually, but you can see it vividly at the museum, how he took things and made them his own and made them new.

• 1:09:31Tyler Cowen?

  What did you learn about Tulsa going there?

• 1:09:33Speaker 01

  It's amazing. So I learned that there's a guy there whose name either I've forgotten or protecting by not giving his name. He's not concerned about himself. He's not a self-publicist, who's very wealthy, who both created the Dylan Museum. He bought it. He did the same thing to Woody Guthrie's holdings, so to speak, which are there. And he created memorials and places you can go where it's hot. And he basically made Tulsa both more livable and more culturally central. And it's a person who has a lot of resources, but is completely

• 1:10:15Speaker 01

  public spirited, not political. I didn't get any sense of his political convictions, just wants to help the people of Tulsa.

• 1:10:24Tyler Cowen?

  Now, we started with the topic of liberalism. How is it you think about or characterize the liberalism of Bob Dylan?

• 1:10:31Speaker 01

  Bob Dylan is a liberal, and his liberalism is captured in the line, "He not busy being born, is busy dying." If anything was, I hope he's immortal, but if anything is on his epigraph, that would be a good candidate. And the notion of self-invention of freedom is central to basically everything. His refusal to keep singing the same song is, you can hear him talking about it in some of the interviews, he said, "I could do that. I could just do that forever. I knew how they'd react." And he said, "What's that about?" I said, "I needed to do something else."

• 1:11:15Speaker 01

  But of course, the line, "I needed to do something else," that's my line. How he would put it would be much more vivid and surprising than that. His "Like a Rolling Stone" is an anthem of freedom, and I heard it actually in concert a few years ago. And it was a great performance. It wasn't young, but it was a great performance. And the audience went wild when he did "Like a Rolling Stone." That was the final song, it was the encore. And it wasn't just because it was the greatest rock song ever written, it was because of how he did it. And I thought, "What's going on in this song? Why is everyone exhilarated?" And the song which he described when he wrote it as vomit, hatred directed at somewhere

• 1:12:00Speaker 01

  that was real, it wasn't that, or it was a little bit that, but it was a song of liberty. So, "How does it feel to be on your own with no direction home, like a complete unknown, like a rolling stone?" That was, everyone felt, you know, like they were flying. And he makes that "Like a Rolling Stone" be a song of freedom. And if you look at his angry songs, positively Fourth Street, there's a freedom in being

• 1:12:28Speaker 01

  Of course, uninhibited able to say things, but also in not being in freedom of disconnection. And when he's asked, why did he change his name? You know, I have an account of why he actually did. And I think he gave it exactly once. But in his more characteristic, he said, you know, this is America. You can change your name. And then he, and then he said, I was born, I didn't think I was born kind of with the right name and I could bake it up. I could say that sounds more like, like I was. And so making ruthlessness not be a curse, but instead something that is, you know, the, the word joy is too cliched for Dylan.

• 1:13:13Speaker 01

  If you look at his love songs, like If You See Her, Say Hello, which isn't one of my favorites, but it's, it's good. And, you know, there's a connection with the one he, he loved who got away, but there's a sense, you can feel a sense of freedom.

• 1:13:27Tyler Cowen?

  Visions of Joanna?

• 1:13:28Speaker 01

  Yeah, completely. Vision, he's, he's torn and that has the great opening line. And just like the night to play tricks when you're trying to be so quiet. I mean, did, did Yates write better lines than that? Probably, but he was Yates.

• 1:13:46Tyler Cowen?

  Blood on the Tracks, a liberal album?

• 1:13:47Speaker 01

  Oh, yeah.

• 1:13:48Tyler Cowen?

  How would you express that?

• 1:13:50Speaker 01

  Well, I'm thinking the Buckets of Rain is the closing song. But right before that, there's a song, You're Going to Make Me Lonesome When You Go. That's, that's it. You're, which is, I think, one of his greatest songs. That's a liberal song of, of freedom and separation that she's going, but he's going to see her everywhere. And there's smiling at impermanence. And that is a big liberal theme, smiling at impermanence, because impermanence makes things not routine and also makes for freedom.

• 1:14:29Tyler Cowen?

  And Idiot Wind is the angry song.

• 1:14:31Speaker 01

  Yeah. Yes, it's, it's, it's pretty mad. And he said about that song, he said, I don't know why the people like it. There's so much sadness and distress in it.

• 1:14:40Tyler Cowen?

  And do you see your own liberalism or just yourself in the liberalism of Bob Dylan?

• 1:14:45Speaker 01

  I think so.

• 1:14:46Tyler Cowen?

  Reinventing yourself, not quite wanting to be pinned down.

• 1:14:50Speaker 01

  Well, I think that-

• 1:14:52Tyler Cowen?

  Doing a lot of stuff.

• 1:14:53Speaker 01

  I think I have a, I don't like, he likes, I think, abandoning and going on to something that's very different. So I wish I'd gone electric or had some equivalent of that. But doing something quite different, I do share a little bit with him. I like it when I think something I thought was wrong. So I now am, you know, very enthusiastic about the Austrian economists and Hayek. And I've always admired them, of course, and, you know, but I didn't feel that they were on my team. And now I feel I've gone to their team. And

• 1:15:36Speaker 01

  I don't feel, you know, ashamed that I was wrong before. I feel excited that I'm less wrong now.

• 1:15:44Tyler Cowen?

  Final question. What are the next six things you will do?

• 1:15:48Speaker 01

  Um, there's lunch. I'm doing a book now on animal rights, which was a topic I wrote a bit on 15, 20 years ago. But then, when I tried to get my second government job, where I was confirmed by the Senate, I faced ridicule and death threats because of my pro-animal welfare views. And it got sufficiently unfun that I self-silenced about animals. And one reason was I had worked for President Obama, and then I wasn't working for him, but I was in some ways connected with them. I didn't want to do anything to cause problems for

• 1:16:32Speaker 01

  my colleagues or former colleagues. But there was also a little bit of cowardice in it. And so this book is, it's called Animals Matter. And it's a project that I am liking more than anything that I've liked since I worked on the Star Wars book, which I thought was a wild project to engage in. This one is not a wild project to engage in. I'm reading everything I can about animal welfare. And the world of learning about octopuses and about dogs and horses is incredible. And I'm proposing a bill of rights for animals.

• 1:17:13Tyler Cowen?

  No book on Dylan?

• 1:17:14Speaker 01

  I'm thinking about it. I'm thinking about it. I have an essay on Dylan, but I don't have a book planned on Dylan. I do have a kind of Gleam in the Eye book called How to Disagree. So I have an essay on this, which is, right now, focused on, and if I may say, you are a practitioner of the principles which I hope everyone would embrace, which include characterizing other people's arguments in a way that they would recognize and be grateful for, indicating what you've learned from other people, including especially things

• 1:17:52Speaker 01

  that are not known yet, and indicating what you agree with in people you're criticizing, especially, again, if those aren't things that most people agree with. And that's a start. There was a game theorist named Rappaport who-

• 1:18:08Tyler Cowen?

  How tall do you mean?

• 1:18:08Speaker 01

  Yeah, yeah, yeah. And this was formalized a little bit by Daniel Dennett in a paper on what he called the Rappaport rules. But I'm thinking about this. In the Animals book, I have a section, it was the most fun to write. It is called Scolds and Scolding. I'd recently learned the word scold as a noun. I knew it was a verb. And to be a scold is a terrible thing, and to be scolded is terrible. So the risk is that you write about animals and people feel scolded. And I hate that. I'm really trying to avoid that. The risk is writing about how to disagree, you look like you're on high horse. But to have clarity,

• 1:18:49Speaker 01

  certainly for academic life, but also for families, and maybe even for politics, on disagreement that leads to, let's say, friendship and maybe truth, and disagreement which leads to rage and something other than truth, it would be good to get clear on that.

• 1:19:09Tyler Cowen?

  Cass Sunstein, thank you very much.

• 1:19:10Speaker 01

  Thank you. Great pleasure.

• 1:19:16Tyler Cowen?

  Thanks for listening to Conversations with Tyler. You can subscribe to the show on Apple Podcasts, Spotify, or your favorite podcast app. If you like this podcast, please consider giving us a rating and leaving a review. This helps other listeners find the show. On Twitter, I'm @TylerCowan, and the show is @TylerCowanConvos. Until next time, please keep listening and learning.