For that kind of a system, or you price the cost of it into it. But if everything is at price and you are building an inefficient mechanism, there are two problems. One, that will come back in the price. And two, it is random. Because if you think of people similarly situated and similarly injured in that system, somebody thinks about going to a lawyer, another person doesnt think about going to a lawyer, you dont have social justice. It has kind of an administration, everybody is entitled and it is relatively easy. A lot of people fear the court. They dont want to waste their time. So that system is, in some way, a crapshoot. It is random. And i would say the greatest advantage of the jury system is the interim of fact. Everybody is scared of the jury and that is why you can settled more settle more cases. Having a big fear factor is not you keep messing around, you might have a nuclear holocaust. I think the jury trial, and maybe some of the myths around it, lead to that kind of behavior and maybe in their own way the cause of the fact that we dont have to trust because people do want to take that risk. Mr. Rosen now that bert has reminded us did you applied on the 9 11 commission . No. Feinberg we invite people voluntarily to come into a system, which does not affix blame, doesnt deter. It compensates. Thats all it does. It compensates individual victims. 9 11, 3 decided all it early not to come into my program. And i met with them and i said to each one, why are you coming into a program that will compensate you in 60 days within average award, taxfree, average award of 2 million . And some would say, no, i lost my wife at the world trade center, she would want me to sue to make the airlines safer. See . To make the airlines safer. I said to her, you are not going to make the airlines safer by suing to the airlines by suing. Going to be ase if without your lawsuit. But even if you believe in lawsuit will help, let the other 93 people sue. Water you come into the program . Litigate to make the airlines safer. Come in and get your money. Well, some did, some didnt. But that is how ken, without the threat of a civil jury trial, would bp or gm ever put up that kind of fund. Mr. Feinberg i doubt it. Mr. Susman so there you go. Mr. Feinberg i doubt that very, very much. And bert, tell me of the kind of case, any kind of civil case that you are aware of, or the biggest issue, the one that amounts to the most intent . S not i have never tried a case where intent is not the key issue. Just like it was the issue in the Obamacare Supreme Court case. Why didnt Congress Intent . Who better than a jury of your peers at ascertaining what people really mean and think and intent . If you are talking about intent, you should think about the patent case. Willfulness. Mr. Susman willfulness is not imperative. You have to prove it for certain additional awards, but all you have to prove is you infringe the claims of the patent. And if you infringe the claims, you are liable. Anyway. Intent is notrg the issue. Did they really intend to injure somebody . You know, if the warning was inadequate, was it inadequate because they really wanted to protect the junk sometimes . Intent is not necessary. In fact, it doesnt have to be proven. As the one exhibition are not sufficient . There is a great many places cases where intent is not element. Yes, it is often an, but we have certainly moved away from that for economic reasons. A lot of cases are absolute liability or strict liability. An intent has nothing to do with it. 9 11,se programs, like have nothing to do with liability. Nothing. They have nothing to do really, if you really think about it, they have nothing to do with justice. They have very little to do with fairness. These programs. What is just and fair if you are giving someone 2 million who lost a son in an airplane . They are all about mercy. Empathy. And they are very very rare. And you know whenever comes to me no one ever comes to me in these programs and says thank you, gratitude, appreciation, dont expect it. When i do this, brace yourself. Just brace yourself. It is debilitating. You do it, it is debilitating. But you get the money out the door and you move on and it is mercy because it really isnt. Mr. Rosen ladies and gentlemen [applause] the conversation, much like a Supreme Court argument, must end on time. And it is time for a vote. And the question on the floor is, if you were a delegate at the constitutional convention, would you vote and favor of the seventh amendment or not . Everyone who would vote in favor of the seventh amendment, please raise [indiscernible] mr. Rosen now. Who is in favor, raise your hand. And everyone who would vote against, please raise his or her hand. Please join me in thanking our panelists. [applause] [indistinct chatter] [captions Copyright National cable satellite corp. 2015] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. Visit ncicap. Org] [indistinct chatter] [indistinct chatter] tomorrow, cspan will be live from new orleans where the atlantic magazine is hosting an allday Conference Marking the 10th anniversary of hurricane katrina. Speakers include the city possibly a are and citys mayor and the fema administrator. And later in the day, we will bring you a briefing from the pentagon with the air force secretary and general mark welsh. They will discuss the current state of the air force and its future starting at 3 30 p. M. Eastern. Well have that live coverage on cspan2. Monday night on the communicators, the summer marks the 25th anniversary of digital television. The author of television areas talks about the development of the medium in the early 1990s. And then in june of 1990, almost exactly 25 years ago, cbs convinced us we should submit it to the fcc for consideration as the next generation u. S. Terrestrial broadcast ended. We were not quite sure we wanted to do that because we really satellite and cable guys i didnt have a whole lot to do with the terrestrial broadcast network business. But we ended up doing that. All of a sudden in june of 1990, our cover was blown what we were doing. At first, everybody said it was impossible what we were claiming, but sure enough, a year or so later, all of our competitors were essentially following us and it became a real race. Announcer monday night at 8 00 eastern on cspan2. Announcer next, a look at the Supreme Courts last 10 years under chief Justice Roberts. This was part of the american bar Associations Annual meeting in chicago. It runs in our andahalf. Hour and a half. Well, good morning. And good early morning. It is nice to see all of you on this beautiful morning in chicago. Welcome to this Showcase Panel on 10 years of the Roberts Court. My name is ken in china man kannon shanmugam. I was at a College Football game with my father. The first game of the season, if memory serves. And we got to my folks house after the game and turn on the tv its other breaking news alerts on cnn that William Rehnquist had a died after a very short battle with cancer. And that triggered a very fastmoving series of of ads. That culminated of events that culminated in roberts as the next chief justice of the united states. Within a month, he was sitting in the chair of the Supreme Court hearing oral arguments. For me, it is very hard to believe that that was 10 years ago. And 10 years ago almost exactly from the date that we sit here today. We are going to talk today about a number of aspects of those last 10 years. And i will just very briefly introduce the panelists and then talk a little bit about the format. To my right today is miguel estrada, a partner at gibson dunn in washington. He is one of the bestknown and indeed one of the best advocates practicing before the Supreme Court. He has argued 22 cases between the court before the court. , no commentary on the positions of the new york times, is adam liptak, the Supreme Court correspondent since 2008. He has covered most of the Roberts Court and other legal issues before that for the times. Rather it like a former baseball player who turns into a color commentator, adam is, himself, a lawyer, having practiced in new york before going inhouse at the times. He brings the perspective of someone who knows of what he speaks. And to adams left is Nicole Saharsky, the honorable Nicole Saharsky according to her name tag. May be a regular person, but she is a an extra ordinary an extraordinary lawyer. She is an assistant to the solicitor general, so she serves and the Government Office that handles all the governments litigation before the Supreme Court. I believe you have been there since 2007 and is now the longestserving assistant in the office. Ofan say that is also one the finest advocates before the Supreme Court. And i know that from personal experience, having argued against her last fall in a very interesting securities case. So, in terms of the format for this morning, we have approximately 90 minutes. We are going to chat amongst ourselves for most of that time. But at the end, we will take questions from the audience and if you are too shy to ask, feel free to send me a tweet. I will be happy to read out your question if you dont want to vocalize it yourself and indeed i have a few questions that were submitted im twitter earlier this week on twitter earlier this week. But let me start with just a very general question of the members of the panel, and i think i was stuck with adam and then to miguel and then to nicole. We are going to talk about substantive areas of law. We and not going to get too deeply into doctrinal issues today. I want to start with just some general observations about the style and the overall approach of the roberts course. Adam, i guess i will put the question this way. If you had to think of and identified a distinctive characteristic quality of the Roberts Court, what would that be . Mr. Liptak i may start with you did, with the chief justice taking the spot of chief jeff is rank list chief justice rehnquist. He was originally nominated the associate justice to replace Justice Oconnor. And i think an associate Justice Robert might be a very different figure from a chief Justice Roberts. I think they chief justice may have voted differently because he has got an institutional perspective in addition to a jurors credential. Taking the chiefs spot, it led to Justice Alito taking justice a connors Justice Oconnors spot. After 11 unbroken years of the Rehnquist Court, all of a sudden, we have oconnor briefly, then alito. But the only switch that matters ideologically is alito for oconnor. And that is the distinctive characteristic that alito, in key cases of altering abortions involving abortions, probably voted differently than Justice Oconnor would have. And that is my best shorthand way of saying what is distinctive about the Roberts Court. Mr. Shanmugam and we will talk a little bit about the central role of Justice Kennedy now with the changes in the courts membership. But to pick up where adam left off, you have the i think originally unique perspective in terms of this panel in spending much of your professional career. N front of the request court you are as wellplaced as anyone to comment on the differences in style. Mr. Estrada that makes me old. The old chief would have interrupted you in the middle if your time is up. He might the new chief might give you more time. I think adam is right that the changes since 2005 have done a lot to define what we think of as the Roberts Court. Ink there are cases [indiscernible] the addition of Justice Sotomayor or, a former prosecutor, has shifted it back in ways that are not all that happy for Justice Scalia. Think you cant really think of a Court Without thinking of dealing with a sample of people because, yes, it is a Different Court because rehnquist is no longer there, but it is different course because sotomayor are very different. Nicole, ofam course, your argument have been in front of the Roberts Court. Ms. Saharsky when i think about the court and i think about what the chief said when he was going through the conjuration confirmation hearings, he pledged to be more of an empire. And take an incremental approach. I think it is sometimes hard for the public to see if that is happening or not because you see the big cases where it is not necessarily clear that the court is taking a very measured or incremental approach. But in the my read of cases, the Court Decides cases very narrowly. Not reaching very far to decide the case. And i think the chief himself is for a measured. I think the point you made is a good one in that chief Justice Roberts is probably different than a chief assistant roberts would have been. Chief Justice Roberts is very aware of the perceptions of america. For example, he in the gay marriage case writes his defense from the bench. We had never heard him read any kind of defense from the band. He just doesnt do that. He doesnt make waves in that kind of way. He is not a Justice Scalia or a Justice Alito. Could we remember any time that he had read a defense from the bench . We couldnt. You all might remember one, but he takes a very chiefly approach. That is really the only way i can describe it. That he really does see himself as that figure had who is going to take the court where it needs to go, but not be the one who is pressing the minds. I would like to talk a little bit about the chief justices style. His personal style, the way he connects himself, and that his agenda. Of course, he famously said after he was confirmed that he wanted the case to decide more cases unanimously. Runs, we are not going to in any particular order from here on out. On a bench full of very smart lawyers, he is among the very smartest. Quite charming and exceptional legal craftsman. Very good writer. Rightld say only he and opinions wherefrom offending start, you really understand what is going on because they have labored on it to make it crystal clear. And that is an exceptional quality. Mr. Estrada the old chief was tough and sometimes nasty and dismissive in a very charming way. [laughter] mr. Estrada you know, he would say, his daughter and one of those and your new he didnt give a dark. He was justjust yanking your chain. If you didnt like to position your arguing, he would cut you off really quickly. And there was one time where there was a case and his red light went on and he meant to save a minute for rebuttal. At the old chief says, well, you didnt. [laughter] mr. Estrada and that was that. I think the old chief has him more has a more congenial matter than the old chief. It sometimes you can get on his took ae, but i think he better understanding for what it is to be on the other side of the bench because he was there so many times. And i think he is a little bit gentler with people that he is questioning, even when he does not agree with them. Mr. Liptak but not also always with the office. [laughter] mr. Estrada mr. Shanmugam is that why he is tough on you . Ms. Saharsky no. I dont think so. I think it is more that jumping ahead a little bit but there has been a few cases that he is not happy with. A lot of the things were he gives the government a hard time are not high profile or even overreaching cases. I had a case this past year that was about a judicial review. Not something that was getting a lot of people out of bed in the morning. Like this. [laughter] ms. Saharsky and he questioned me very aggressively for five minutes. Why should we trust you . Why should we trust the governments . Im thinking, i make like five dollars an hour. Why are you yelling at me . [laughter] and some of the times when he says Something Like i cant believe the government would say x, well, you work for the government. Mr. Shanmugam and just for the record, for anybody who may be watching, lawyers do get paid the minimum wage. Any doubt there to be about that. Adam, let me turn the discussion a little bit back to 2005. Obviously, the chief theliptak we didnt answer second but of your question. Does he have an agenda . I have written that he has, and im sure that he thinks he does not. Cases,re do seem to be particularly cases about race, that light up his his curiosity and his assertiveness. Im curious if other panelists have other things that they think this chief may care more about or less about than the old chief. Mr. Shanmugam lets take that for a minute because i do want to get to that and talk not only about where the court is on substantive issues, but what the court is interested in. Let me sort of ask one last question about can of personal style. We have a chief justice here who actually clerked for the last chief justice. He was one of the pallbearers at his very old. Curious to what extent he modeled himself early on on the late chief. As you pointed out, he came into this interesting situation where he was jetting a number of the members of the court who had been together for an unprecedented amount of time. Do think you started out being more like the late chief justice . Mr. Estrada i dont mr. Liptak i dont think i am the right person to answer that. I do think the fact that he clerked on the fact that he is so highly credentialed is characteristic of this court, which is all all lawyers who attended harvard and yell law school, but with the e