Hi folks, thank you for joining us. We'll be starting in about 30 seconds or a minute. Excellent, excellent. Hello everyone. Welcome, bienvenue, Guten Tag, Konichiwa, and Haitai, as we say in Okinawa. Before we begin, I would like to thank everyone who has worked to make this session possible, especially our co-host, the permanent mission of Japan to the United Nations, along with the Science Summit organizers and team members at OIST at the Japan Times and at Sustainable Japan by the Japan Times. My name is Heather Yang, and I'm the very proud Vice President of Communications and Public Relations at OIST, the Okinawa Institute of Science and Technology. And I'm also the co-chair of the Science Summit in Japan. Today, we are very, very fortunate to have with us Dr. Peter Gruess in conversation with Tomoko Otake, the topic of their discussion is the importance of investing in research excellence for the benefit of humanity.  Dr. Gruess is the president and CEO of OIST. He is an internationally renowned researcher in gene regulation and embryonic development who previously served as the president of the Max Planck Society in Germany. Otake-san is a senior writer at the Japan Times focused on health, medical and social issues. A native of Nara Prefecture, Japan's ancient capital, she has a V8 from the Osaka University of Foreign Studies, now Osaka University, and an MA in Journalism from the University of Montana. From Montana to Mallorca to Mumbai to Miyako Jima. From whatever time you're joining us, I know you will enjoy listening in on this conversation and I hope you will learn a little and be inspired too. Otake-san, the floor is yours. Thank you, Heather. Good morning to everyone participating from New York and good evening to those of you in Japan. My name is Tomoko Otake and I cover mostly health and science stories for the Japan Times, a Tokyo based English language news outlet that is in its 125th year. Over the next 15 minutes or so today, I hope to explore the importance of science in our society, why it's crucial that we invest in research for the long term, particularly in basic science and how we should reform the process of funding research here in Japan and elsewhere in the world to get the most out of investment and prove the quality of life for people on our planet. Dr. Gurus, we have a lot to cover today, but I've been looking forward to speaking with you in your capacity as a foremost biologist and science research administrator and I hope that in our time together today, we can also take up a few questions from viewers before wrapping up the session. Let's start by addressing the historic challenge we are facing at the moment, COVID-19. Over the past two and a half years, our lives have been completely appended by this pandemic and the virus is still here despite many countries adopting a policy of living with the coronavirus. According to the World Health Organization, they have been over 600 million confirmed cases COVID-19 has so far and more than 6.4 million people having confirmed have died from the disease. At the same time, however, we've been able to see how quickly scientists can rally. In just one year after the pandemic setting, several vaccines have been developed. Now, two-thirds of the world's population has received at least one dose of the vaccine and that has helped prevent an even more catastrophic outcome. Dr. Guz, is it correct to say that this outcome has not been possible without decades of basic research? Indeed, this is very correct and depending on where you put the starting point, I think the originator of the discovery of mRNA which is the molecule that encodes protein was Sydney Brenner and Sydney Brenner happens to be the scientific father of OIST. So Sydney in 1961 discovered mRNA. So it's more than 60 years of intensive research that has led to this with steps in between like in the middle of the 19s, people have tried to utilize the mRNA as a means to code for anti-cancer proteins. We needed to change the RNA to make it stable, put it into a lipid bubble and then use it. So now the interesting issue here is it was 60 years. And if I look at the generation of the vaccine, as you said, which is unheard of in the history of vaccines, it took only one year. The next best was Ebola virus, it took five years. So now when I look at what was the environment, what was the prerequisite to generate this vaccine? We come up with an interesting observation because this new route using an RNA as a stimulus to make proteins in a cell of our body has been used by two startup companies, BioNTech and Moderna. This is an interesting observation because all other companies well-known Johnson and Johnson AstraZeneca, they used a more traditional route. So we learned something from that. What we learned is that the major companies were not innovative enough, relying on young companies dynamic with the creativity. And hence, if we now call the vaccine that is sold in the world Pfizer vaccine, which this is obviously wrong because Pfizer has utilized BioNTech methods and produce it and distribute it in the world. So I think from a scientific standpoint, we have to give credit where credit is due and the credit is due to BioNTech and Moderna. And I think this demonstrates what it takes in modern research that sometimes it is 60 years until we can utilize the research over decades and do something that is of value to our society. That's very interesting. So we have like 60 years of history and two very young startups utilizing that technology. Now, keeping within the context of the pandemic, why is it do you think some countries have been more successful in mobilizing the power of scientific research than others? For example, Japan is the world's third largest economy, but we have yet to produce our own COVID-19 vaccine or single domestically developed COVID drug on the market. As a biologist, a scientist and administrator at OIST, which is a top school for science, where do you think things that might have gone wrong? Well, I think one couldn't call it gone wrong. What one should call it is what has been missing and what has not been developed. And here I'm afraid to say that the Japanese infrastructure for technology transfer that then would use IP intellectual property that is generated in universities or any research institution in order to be transferred into a product that is generated through a startup company is very poorly developed. Within Japan, we have many deficits here. There is not a proper technology transfer mechanism in most universities. There is too little venture capital, and I can give you a number, only 3% of the venture capital that is available in the United States is available for Japanese startups. So it doesn't matter that Japan is the third largest economy. What matters is the dynamics. Japan has lost the innovative capacity. Japan has to invest more in startups, more in high tech in order to generate what in this world of startups is called unicorns. That means companies like now BioNTech or Moderna that are worth more than one billion US dollar. So from this point of view, the link between university and the final production in a startup company is not working well. What it also shows that the interaction between established farmer companies, for example, and universities hasn't been working too well because otherwise they would have come up with something like this. So from my point of view, the greatest deficit is indeed the technology transfer interface. I see. That's an interesting point. Although Japan has thought about I think technology transfer and talked about it. It hasn't really had a proper mechanism. What about the funding in the research institutions that are supposed to produce the seeds of these inventions? Well, I'm awfully sorry to continue with the bad message because I'm living in Japan. I like to live in Japan. It's a wonderful country, but it does have deficits. What has happened in Japan was that the funding that is available for basic research really has stagnated for more than 15 years. So what needs to be realized, I'd say by the government in particular also by the Minister of Finance is that investment in science is not a subsidy. It's not a nice to have. I think the world agrees that investment in science is the prerequisite to prepare our minds and our societies for the challenges of the future. And again, let me go back to the RNA vaccination because it shows without a proper knowledge and know-how in this field, you couldn't do it. So in Japan, apparently, no one was working properly on mRNA and hence it couldn't be developed as a product. So having said this, one would need to understand then first how is the funding structure and what are the pros and cons of different funding structures. Now in Japan, we have mostly what I call a low trust funding. No trust funding is like competitive grant funding. And studies have shown that if you mostly fund research through competitive grant funding, it's a very inefficient way to fund research because cutting edge research, highly risky research, research that is moving into new areas, interdisciplinary research is mostly not being funded through the low trust funding or through the competitive grant funding because if you want to make money for yourself and the laboratory, you have to then apply to a funding agency. The funding agency is asking your peers and your peers will not give you the grant that is departing from the main root of science. Hence a good research funding system needs what I call the high trust funding or in other countries it's called block funding. So you need a defined period of time where you give the money to the best minds and let them roam freely in their research field. And after let's say five years, you can then look back and see what is happening and what the results have been in order to possibly adjust the funding upwards, downwards or keep it steady. This has been shown to be the most efficient way to generate breakthrough innovations, to generate breakthrough data. And let's remind ourselves everything that is new comes from fundamental research or else it wouldn't be new. So we have to remember that first you have to establish a basis and once you have this basis then you can think about technology. So science and technology if applied appropriately can have an enormous effect in order to produce solutions for our society or produce completely new directions. Let us think of what's called Tim Barners-Lee who is literally the originator of the internet and all he wanted to do is have two institutions from CERN talk to each other. And I mean he wouldn't have thought what this would do for our societies it had one of the greatest impacts in the communication of large masses in our history. So bottom line is give a good balance of high trust funding and low trust funding and specifically for Japan give more because Japan is otherwise not competitive anymore. I see. So just coming back to the definition of high trust and low trust funding this is a very basic question but just for myself you call it high trust or low trust because the government... Yes a government has of course a means to direct the research results by channeling money and this is what I call low trust because if the money is channeled say into a defined area obviously the government has to presume that this area will yield results but we know in science sometimes the actual solutions come from completely different angles so the low trust means you define a research line for five years or 10 years while the high trust means we give our scientists the money for five years and let them think about the most creative work they can deliver and out of this work usually the breakthroughs come and I have actually also a hypothesis for myself I find that the mainstream research that is funded through low trust is mostly resulting in incremental innovation while the high trust can yield what I call breakthrough innovation open completely new doors and allow then people to think of utilizing this new... this opening in order to generate a complete different line of research or products like the RNA vaccination I see when you say we need a good balance of high trust and low trust funding what is the best balance would you say and how does Japan... this is a very fair question and it's a good question and I have to say there is no absolute answer to this what we need to understand is that every science system every research system in every country has evolved with defined structures so in Japan you have players these players are not identical with players for example in Germany or the UK or United States so it's very hard to compare sometimes these systems with each other what we should also know and understand is that most Japanese universities do have an educational task so if you have to teach large numbers of students obviously you cannot focus entirely on the research side so it's a double task that you have doing education and research and I'm not talking about educational PhD students who are educated through research I'm talking about the undergrads I'm talking about teaching people for the first four years you have large numbers and you have literally you have to give each of them a basis for future studies so having said this every country however and I'm very much convinced of that needs a specific funding regime and also institutions that allow elite research because it's the elite research that has the greatest impact and if I look at the numbers that have been you know translated this research into products or patents it's very interesting they're only the highest cited papers in other words papers that are read by most also yielded an impact in patents if you analyze over a ten year period all patents in the United States you will realize that 75% of the quotations in these patents comes from publicly funded research and these papers are the papers that are in the top 10% or 5% of the highest cited work that has been published Yes I don't want to talk too much about Japan's downsides but when you talk about highly cited papers top 10% of sites papers Japan has slide it over the years and in the latest report by the Japan's National Institute of Science and Technology Policy when it comes to producing highly cited scientific papers Japan fell to 12th in the 2018 to 2020 period and that's a record low for this country down from sixth place a decade ago and from fourth to decades ago and as for the top spots China came in first followed by the US, Britain, Germany Italy, Australia, India and Canada and critics about Japan's standing have cited a number of factors like the funding cuts which is a very big factor over the years but also the lack of independence, financial and creative independence which translates to what you're talking about high trust funding but also kind of risk averse and consensus based university management that hampers a speedy decision making so think about Japan's standing and if you have a magic wand to change the institutions in Japan or elsewhere what would you do I will not start with the money I will start with the structure I think the Japan university system needs to be reformed it needs to be reformed at the governance level to have a clear separation between let's say a board of governors exclusively having a function of supervision and developing strategy with the leadership of the university the management management of the university has to have professionals in all kinds of areas not retired university professors look at Heather Heather is from Canada and she is our VP for CPR communication and PR we have people that we hired from Vienna to be our finance VP and so what needs to be realized is if you run a modern university that is supposed to be competitive you also have the entire framework that is that allows that so that's one thing the second issue is I believe Japan also has quite a problem in promoting career development for young scientists if I just look at worldwide at what age did the scientists make a discovery that has later on led to the Nobel Prize in all kinds of areas in some areas it's younger in other areas it's a little later it's been done before the age of 40 or the beginning of the 40s what that means is that the most creative times of many scientists is at a young age so what you need to give them is a complete independency and adequate funding the complete independency in a Japanese department where you have the professor, associate professors assistant professors is not common mostly it's the assistant to the professor not an assistant professor that is independent so here we really need to change the thinking so that's the second thing the next thing is if I look back at the reform of the German university system which had similar problems we have to realize that at some point in order to prevent let's say unjust promotions we had what's called a a we made it impossible if in a given university you can become full professor if you start as associate or assistant professor you had to leave why is that good because you have a horizontal movement within a country so having said this despite the fact that Japan is a reasonably large country the one thing Japan is not it's not international in science you need what Japan needs a quality control that is including foreign scientists that are top in their field very important the quality control is important so finally what you need is a system that allows within the university to also establish lighthouses in certain areas and I know that there are very good tools that the world has developed even from funding agencies like Welcome Trust or Howard Hughes or in Europe the ERC what they allow is to give the young scientists a starter grant or something equivalent and the advanced scientist and advanced grant with this you have time to develop yourself as I said 5, 10 years in order to then do this research which I call is high trust so Japan needs two things it needs to reform itself but it also needs more funding from the government Japan is just funding a little more than half of the GDP than Germany and now you cannot be surprised that Japan has about 0.5% of the GDP that comes from the government and if I can recommend to anybody a good read it's an economist from University College London Mariana Matsukato she has published a book called The Entrepreneurial State This book clearly shows that breakthrough innovations mostly start within a university with public funding so that completes the circle for the Japanese finance minister and shows that this is not a subsidy this money is investment in order to get the products that the parents are lacking in the future I see, thank you when you think about the success of OIST I think OIST is very unique in Japan and one thing that sets OIST apart from other universities apart from this structure is the diversity of its members I think I want us to talk a little bit about diversity I understand that 63% of faculty at OIST are foreign nationals, international people whereas at national university in Japan across the board the ratio of foreign faculty was about 5% in 2020 and 2021 which is not even meeting a low target set by the government to double the ratio to 6.4% over 10 years by 2020 so it's 5% now and the goal is 6.4% and also gender equality is another big concern just to cite an example at the University of Tokyo which is the nation's top university one of the top universities in Japan and one of the hardest to get into the ratio of undergraduate female students is around 20% while the ratio for graduate students is about 28.5% so what has OIST done and what lessons can others learn from OIST Well you were addressing really two questions one is the hiring of say international 63% we are having are professors that are non-Japanese and the reason why they are coming to OIST is very clear we have on the one side high trust funding and to me this is a very major attraction to most scientists that want to live their dream the dream of their research that is formed in their head and on the other hand we have 80% of our students that are non-Japanese I come to this but the bottom line is high trust funding competitive salary a structure that is transparent and that allows the people to believe that this administrative structure supports their work so now how can that be translated then how can that be done at the university level well the one thing I can guarantee is that there will not be a larger fraction of professors unless you have a grant funding system like the European Union has established where you give them five year terms for the assistant professor and maybe even longer coming from the United States, UK or Germany why should I come into a country where I am not familiar with the grant writing system with the grant system as such and write grants I see no reason why should I do this so it's not attractive simply for a scientist to come so that's my take on the internationalization of the professors but you of course went far beyond and also addressed the gender balance now the gender balance is much more complex and when I look at this is almost internationally like this and only Japan doesn't really follow that so let's let's march up the ranks of the graduate students graduate students in general worldwide you have depending on the field but let's just average it so that you have between 40 and 40 some percent of female students physics is a little less biology is a little more so bottom line is you have the notion of female graduate students across the globe now now comes the point if like in many universities in Japan the graduate students are not supported by a stipend if what happens a noise quite I would say not infrequently in the form of family you have to have a supporting system and the minimum that has to be delivered is a stipend you need much more which is for the professors equally important namely you also need if you want to build a family you need adequate child support ideally in the university there's a grad student researcher administrator or professor if you come as a woman and you know that you can your children are well taking care of by an oyster we have a child development center you feel very comfortable you feel that you can look after your kids you can even walk to the child development center in a break if it need be so what I'm saying is life is more for many people than just the research so you have to provide the adequate infrastructure now there is another issue that we need to discuss and that is if I look at the numbers so let's say 40 to 50% grad student level 40 to 50% at post-op level and then we look at OIST and we have about 18% of faculty then you have to ask yourself what is the reason for this well one reason is that worldwide the proportion of women in faculty is much too low so what happens and one has to analyze that is between the PhD and the post-op a lot of women decide to leave science it may be it may have a cultural reason but it may also be that the many roles that women feel they have to play namely mother and researcher is too much so they look for a job that is less demanding and if you look at the science as a profession it is very clear that it takes quite some time before you can feel secure and land it is the first 10-year job so the first job that is unlimited as far as your contract is concerned either says it may we need to take a greater effort to bring in the women and that's what we are currently doing by having an emphasis and if you look at some of our advertisements we say something like we prefer to hire female scientists and then we advertise we have child support system we have housing on campus we have stipends for students we have salaries and a career development path for post-ops so this as a package I hope will also allow the young professors female professors to come to Okinawa and work at OIS that's very interesting because I've seen many advertisements at university saying like we promote gender equality and we prefer to hire women we promote diversity in our hiring but if it doesn't come with a package it's not what you say it's just like on paper but not in practice so I think it's very convincing that we need to have a package with support and that just was also I think I also want to talk about regional development I think OIST has lived up this promise of conducting internationally outstanding education and research in science and technology but OIST has another mission spelled out in the university's mission statement to contribute to the sustainable development of Okinawa and Okinawa is a beautiful island and it's the same there every time but despite decades of subsidies from the central government Okinawa remains one of the poorest prefectures in the nation as a very high jobless rate low per capita income and I heard that 30% of children are living poverty so what can OIST do as a science university to address such issues and how can it give back to the community well this I think was probably one of the underlying the answer to this question was one of the underlying reasons that OIST was founded because the visionary politician Koji Omi for many years the economy in Okinawa has not improved compared to the rest of Japan hence the GDP per capita is the lowest as you pointed out rightfully of all of Japan now in order to understand this you have to be aware what are the economic contributors what are the businesses that contribute to the GDP in Okinawa well foremost it's tourism retail fishing farming construction so these are all professions where the salary level is actually fairly low and people have invested in these four or five areas over the last 50 years without actually changing the matter that would increase the income the GDP per capita for the Okinawans and hence raise the standard of living so little by little it has now transcended into the heads of the politicians that we need a revolution in Okinawa and it is from my point of view very unlikely that you can convince a major industrial company subsidiary to Okinawa my personal conviction is you have to start a high-tech culture in Okinawa these new start-ups are by definition high-tech and bring in high salaries for people that work in these companies so now let's get a little bit deeper into this matter what if you look around the world what is a driver in very general terms what is driving high-tech what is driving IP what is driving start-ups normally you have a substantial world-class scientific environment as the intellectual driver that must not be in all areas but it is a let's say it is a system that allows the start-up which they all are by necessity small to go back to the university look if they are machines if they are practices if they are procedures that they could utilize if there are people that can discuss matters at the intellectual level so this is what it takes you need an intellectual center now what you then need is you need a technology transfer that is conducive for people on one side it has to be attractive for scientists that wish to translate an intellectual property into something more substantial on the other side it has to be attractive to the venture capital world because the venture capital world they must see the value of ideas or concepts of the university or are being attracted to come in order to then invest in these projects through a start-up so now what we are having is we need a couple of say prerequisites we have a university which is not big enough but OIS has been very successful bringing in entrepreneurs from all over the world we have a total of 47 start-ups generated and I would guess probably half of these start-ups were coming with the entrepreneurs from all over the world actually one of the most successful start-ups in Japan has been realized by Indians that came to OIS in order to get this done by our financial platform now what that has led to is that OIS and particularly our tech transfer unit was successful in generating 50 million US dollar between 40 and 50 million because the yen is going down so if you translate it into dollar the 50 million are now probably worth only 50 million US dollar but be this as it may the bottom line is that this is enough money to have another 50 to 100 start-ups so OIS has the tools to finance start-ups from within OIS and finance start-ups that are coming from an intellectual environment what is missing is a proper innovation park a proper environment close to OIS where we have professional incubators where we have the housing for a number that eventually in 20 years or so could be up to 30 thousand people 3000 people that is what we have planned so we have created a master plan and that master plan is projecting in 20 25 years that we have an incubator and we have housing and we are employing about 3000 people now if we employ this number it would actually close the gap of the GDP between mainland Japan and Okinawa by one third so just one innovation park will lift the GDP up and I am very happy to note that the just re-elected governor Tamaki has said that he wants to create an innovation hub at OIS so I will remind him of that statement during the election campaign because I believe that this is the root that could help Okinawa to increase the standard of living and raise the salary level for those that are connected with the innovation park Interesting and also you believe in the idea of infusing curiosity in science among young people in Okinawa as well right? Very much so because we have two programs and these programs have two components we go out into schools grad students, postdocs and teach the children in high schools and younger but also we accept Okinawans to come to OIS in order to raise the consciousness of science as a profession what is it? If you are like 16, 17 years old you have no idea what science is like as a profession you also can use the scientific platform to form let's say your future professional perspectives and I've seen people that became a neuroscientist I have another girl from Okinawan high school that now wants to become an MD working close in research so you know what I mean it's all of a sudden these people open for themselves a different world of perspective and I think this is what OIS can deliver to Okinawa if we spread the word like what we are doing tonight Great, thank you very much it's been very interesting and very inspiring now I'd like to open the floor to some questions if anybody has them and actually I think we have received several let me read some of you and I'll go to you one by one first I have a question from a viewer asking why did you come here to OIS originally what intrigued you and what really drew you to this work in Okinawa it is a beautiful spot but I imagine it is hard work how would you respond? I mean as you said in your introduction kindly the president of Max Planck society and the Max Planck society is one of the most successful research organizations now having been having worked as a scientist at Max Planck and having been the president I have collected experience what it takes to make an institution to be competitive and world-class and when I was offered the position as a president and CEO of Okinawa of OIS I came here and it took only a few minutes to see what the atmosphere was like as you said yourself as a president and CEO of Okinawa as a president and CEO of Okinawa as a president and CEO of Okinawa so if you go into our campus and you see people from all over the world you feel the spirit you feel that this is something you can build on why can you build on because then the Japanese government provided a role OIS and I hope very much and that was what attracted me that the basic principles are very much Max Planck like except that we were a graduate university which Max Planck isn't so we can give degrees PhD degrees which is even a little better than what Max Planck can do but the bottom line is everything else let the best let them work in peace and then translate what is possible for translation I think this was quite attractive to me and that's why I came and I hope that the Japanese government will continue to increase the funding because this is necessary great thank you so I know you speak passionately on personalized medicine could you please talk to us in broad terms about the important future of precision medicine I believe that this password personalized medicine will really change the medicine of the future I believe that our insight into how an organ and how an organism works our insight of correlate genetic information into programs our insight into the programs that can direct for example organogenesis will allow us to really do precision medicine based on our individual DNA that each one of us has so I see two areas here at least and one is the predictive ability predictive ability means that by way of your DNA you also have a certain fate because you may have a mutation and one of the examples here was Angelina Jolie who had a mutation that inevitably would have led to breast cancer so she decided to have the breast removed in order to avoid getting cancer so what I'm trying to point out here is that all of us have a different type of genome and this genome also establishes to a certain extent not 100% correct some traits are multi gene multi genetic so it needs several genes that work together in concert so that's why in some cases you need several genes to for example give you a certain eye color however you will have and this is what I think will happen each child that is born will get an information for life and we can utilize this information to keep this child healthy as long as possible and then also in terms of the second domain directed repair we can already direct repair mutations for example in our blood where we can change the sequence of a mutated gene to a normal gene we can have a program that allows us to direct organogenesis in a tissue culture in a petri dish that may help us to deliver missing organs so I think the medicine of the future will be a different medicine as to what we have today primarily because we will see a shift from therapy to prediction and prevention great okay we have a comment from Stephanie I think Okinawa safe is famous for its blue zones I think we should learn from this part of Japan as in the science of longevity Okinawans are known to have less cancers for example do you think living in Okinawa has extended your life I think this is a it certainly has extended my life because it has driven me to do more sports by snorkeling and but it also may have extended my life by looking at what are the factors that contribute to a longer and healthy life and this is a question I'm actually very interested in addressing as a scientist so OIS is very much engaged in looking at what factors determine healthy aging we are looking at analytical systems that allow us to have some correlations we are looking at factors that can extend a healthy life and I hope very much that we will get also a clinic here that would allow us to then examine the blue zone old people or elderly in order to get an idea in analytical terms what makes these people feel that they are healthy and that they are healthy so there is a whole package and I think Okinawa is an ideal place to address these scientific questions great thank you we had a wonderful opportunity to talk today thank you very much Dr. Gruss for sitting down with me before I close I would like to introduce Maria Angelos Dijon who will talk briefly about sustainable Japan section of Japan times Maria Angelos thank you so much Otake-san and Dr. Gruss for this amazing talk it was very good and I learned a lot about the sustainable Japan series at the Japan times before closing the series I would like to invite you to if you want to learn more about Japan's efforts to meet the SDGs please visit sustainable.japantimes.com where you will find all sort of interviews and stories showcasing what Japan is doing towards more sustainable society by the Japan times great thank you Maria Angelos and thank you Dr. Gruss again for the wonderful session tonight and thank you everyone for tuning in tonight and please don't forget to fill in the feedback for the SAMI program thank you again and good night thank you everybody bye bye good night


Welcome, everyone, to the Thurgood Marshall Memorial Lecture, which this year is also serving as part of the President's Distinguished Lecture series and the Talking about Race, Gender, and Power series. I want to thank President Farrish for his support. He couldn't be with us this evening, but he sends his regards. I want to give special thanks to the law firm of Hinckley Allen and Snyder for their support for the Marshall Lecture. They have been with us since the beginning, in 2001, when Eric Holder gave the inaugural lecture years before he became the Attorney General of the United States. I'm also delighted to welcome back to his alma mater and to thank Adam Ramos, who is now a partner at Hinckley and has been instrumental in continuing the support of this lecture series. I also think it's appropriate just for us as a group to take a moment and think about giving thanks to Justice Marshall's widow, Cecilia Marshall, who endorsed this lecture series years ago and for many years joined us. Outside, you can see a picture of her with our 2006 speaker, Devon Carbado. On the occasion of the 50th anniversary of Brown vs. Board of Education, our Marshall speaker, David Wilkins, who clerked for the Justice, said that he had absolutely no doubt that the justice could not have done the work that he did without the support of Mrs. Marshall. Mrs. Marshall, on that occasion in this very room, said that the lesson she took 50 years after Brown vs. Board was that we need less blind optimism and more appreciation for how much hard work remains to be done. And with the support of Hinckley Allen and with the participation of many of you, we've been able to talk about that hard work here for almost two decades. So it is my great pleasure to introduce Richard Thompson Ford, who is the George Osborn Professor of Law at Stanford Law School. I first became aware of his work in 2008 when he published the race card in which he argues and I will not do this justice. He's right here. He'll correct me if I'm wrong. That spurious claims of race discrimination distract attention from the important and unaddressed problems of racial inequality that continue to plague our society. It was a very challenging argument separating the weak from the chaff, so to speak, and one reviewer from the New York Times described it as relentlessly even-handed, which is a very nice compliment. He followed that up with a book called Rights Gone Wrong, in which he argues that both the left and the right are mistaken in the way that they conceive of problematic race discrimination. This even-handedness or bipartisanship is a compelling characteristic of his work, which appears not only in his books but in law journals and in the popular press. He's been on the Colbert Report, for those of you who are interested. His writing appears in major newspapers and in what we used to call magazines. Indeed, in describing a recent article that he wrote for one of those magazines, the American Interest, about what he termed, has termed, the Trump post-white presidency, Professor Ford himself wrote that it was, quote, guaranteed to anger almost everyone left and right. He is currently at work on a book about dress codes. Some of us had the opportunity to hear him talk about that earlier today. It's a fascinating project. I commend to you his recent articles about President Trump's ties and why they really matter. He will be signing copies of Universal Rights Down to Earth. They are available just outside the room. That's his book about the global human rights movement. Please join me in welcoming Professor Richard Thompson Ford. Thanks everyone for coming to see me and thank you for inviting me here for this prestigious lecture. I'm honored and pleased to be here. I fear that I may not live up to the introduction as quite as heterodox a thinker as I was made out to be but I have done in the past a lot of work to try to make the case that some of the ways that we habitually think about racial and other social injustices in our society are at best incomplete and in some circumstances counterproductive. Now when I wrote the race card many years ago in 2005, I argued that there was a widespread consensus norm that explicit expressions of racism were unacceptable in our society. Times change and part of what I'd like to do today is kind of update some of the arguments I made in that book arguing that while just about everything I said was still right there are in the contemporary environment reasons still to be concerned about unjustified claims of racism and also reasons to be concerned about a too narrow and too formalistic view of what counts as social injustice or discriminatory bias. So in that book and in Right Gone Wrong I make these claims. I'll start by talking a little bit about something that happened back in 2005, Hurricane Katrina because that's an instance which I think brought to the fore a lot of the problems that I want to address today. On the one hand there was a norm that explicit expressions of racial bias were unacceptable and as a result when most people who were biased hid their biases and two I think it was fair to say that the amount of conscious bias in the society had declined quite significantly since the 1960s and yet at the same time racial injustices were and are everywhere and I can give you the familiar litany policing and criminal justice in fact racial profiling which was the hot topic in 2005 now seems almost quaint in the wake of Black Lives Matter and the injustices that that movement has brought to our attention employment discrimination continues to be an enormous problem segregation in public schools and in neighborhoods and Hurricane Katrina brought a lot of this to the fore because of course after the hurricane hit in the levees failed what was quite clear was that the African American community suffered the disproportionate brunt of the aftermath. Not only that but the response of the federal government which was by most accounts inadequate by some accounts inept to many seemed to be so in part because of the people who were suffering so at that time when you may remember during a fundraiser for the victims of Hurricane Katrina the musician Kanye West said George Bush doesn't like Black people kind of it's spontaneous outburst and I argued at the time and I would still argue today that that response was both understandable and unfair understandable because Katrina and the inadequate response to it did disproportionately harm Black people and that racial inequity was not an accident everyone understood that unfair because there was no evidence that George Bush was a racist instead the inequities were the result of the continuing effects of past racism in particular neighborhood segregation the isolation of poor African American communities in neighborhoods that were both more vulnerable to this type of disaster and lack the resources to avoid or get out of those circumstances they may be feared to say that the federal response was colored by politics the people in New Orleans not being among the the supporters by and large of the Republican Party and all of those features led to an understandable claim of racial injustice but was George Bush a racist if George Bush doesn't like Black people what do we just say about a man who spearheaded the birther slander against President Obama insisted that black defend criminal defendants were guilty after they had been exonerated by DNA evidence described a conflict between white supremacists and their opponents is one in which they were fine people on both sides and called African a majority Black and majority Latino nation shitholes when discussing their immigration priorities what I'd want to suggest is that it may be that in calling Bush a racist without much evidence it's made it a bit easier and I would argue all too easy to for some people to deny that Trump is one in spite of a lot of evidence after all in today's environment there's a common discourse that liberals just play the race card against anyone with whom they disagree so the problems I want to address today are that we live in a society in which there are lots of racial injustices neighborhood segregation the incarceration rate unemployment police violence but many of these problems not all but many don't fit the conventional civil rights model well we can't find a racist we can't find explicit discrimination civil rights were in the conventional sense were astoundingly successful in dealing with blatant Jim Crow style discrimination and I want to emphasize they're still doing lots of important work today as my comments just suggested overt racism is far from gone in our society and examples of explicit discriminatory policies are still there are still plenty of them but the conventional civil rights approach does too much and not enough at the same time so I'll talk about a few examples of that 50 years after brown versus board of education we still have schools where roughly one quarter of black students in the northeast and midwest attend schools that are almost entirely non white and at the same time civil rights laws in fact the same principle articulated in brown versus board of education now prohibits modern modest efforts to integrate the schools you might say well that's just a problem of conservative justices who perverted the civil rights movement and it's true to some extent but not entirely laws for instance against sex discrimination haven't done much to change the wage inequities that leave women earning 70 to 80 cents on the dollar as compared to men but those laws against sex discrimination do in many states in the United States allow men to sue and recover thousands of dollars for discrimination when nightclubs have ladies night and that at least might suggest a misplaced set of priorities that I'll argue is a consequence of a particular legalistic way of looking at the problem of inequality in our society and finally police violence is endemic in our society and yet a consistent frustration since black lives matter has been the fact that there are very few indictments of police officers responsible for that violent and even fewer convictions and I'll argue part of that is because we're looking for a specific individual to blame for the problem of police violence when we ought to be and need to be looking for institutional and cultural factors that produce an environment in which that kind of violence is almost inevitable okay like to start by talking about Brown versus Board of Education obviously one of the most if not the most important case in the civil rights canon and a case that did a great deal to advance the norm that explicit racial classifications and explicit statements of racial bias are unacceptable in our society on Brown's 50th the 50th anniversary of Brown versus Board of Education there was a lot of celebration and a lot of patting ourselves on the back about how far we come as a nation with respect to racial equality but at that same time the Harvard Civil Rights Project for instance pointed out that a substantial group of American schools are virtually all non-white and those schools educate roughly a quarter of all black and Latino kids nationwide in 2006 two of every five black and Latino public school students attended a school that was over 90% non-white and the segregation of our public schools is actually getting worse not better and has been over the past decade or so at least the situation even in 2006 was dire enough that the law professor and veteran civil rights lawyer Derrick Bell went so far as to suggest that the nation's minority children might have been better off if Brown had come out the other way and the nation instead committed itself to the breached promise of separate but equal in other words focused on the equal this was someone who dedicated his life to fighting racial injustices he wrote Brown is a magnificent mirage to which all aspire without any serious serious thought that it will ever be attained and then finally and in my view perhaps worst of all in 2007 the Supreme Court held that the legal precedent of Brown versus Board of Education prohibited policies that advanced integration so I'll talk a little bit about that so we have in one sense in a practical sense the argument in Brown being flipped on its head by 2007 after Brown versus Board of Education a few things happen and one thing to notice is that in the context of Brown a lot of disparate factors came together you had an explicit racial classification to be sure you also had explicit and undenied racial animus stereotyping psychological entry to students of color and inadequate and unequal resources all of these things came together in Brown and the court at Brown didn't feel the need to disaggregate those factors and neither did the lawyers are arguing the case and for very understandable reasons and so we got statements to the effect that the problem was that the state had classified its citizens according to race now after Brown is well known many of the southern school districts resisted in what's been come to be known as massive resistance and at the end of the era of massive resistance after federal funding was tied to making serious efforts to reverse the policies of Jim Crow we got instead a lot of policies designed to reproduce the effects of Jim Crow without making an explicit racial classification that much is quite clear and the result of all that was that the courts had to dig deeper they had to push into the effects as well as the evidence that the court the express motivations of racial injustices and the result was what we now remember as a series of more assertive efforts to desegregate the public schools to move closer to something like statistical de-concentration those efforts in the 1970s often took the form of busing against which there was a great deal of resistance in many white communities including violent resistance in some context such that in for instance South Boston whites boycotted the public schools in response to desegregation efforts and white mobs through stones at school buses carrying the children from the predominantly black rocks very neighborhood to the schools in South Boston and similar instances occurred in other contexts with the result that understandably some parents of African American children asked whether or not there may be another way forward a way that didn't involve sending their kids into a war zone and yet these compromise approaches were in some sense a betrayal of the ideal of the civil rights movement and so civil rights lawyers naturally and again understandably resisted the idea that there ought to be such compromises there were also practical impediments for instance as the desegregation cases work their way through the federal courts the composition of many of the school districts that had been responsible for Jim Crow segregation had changed so in 1952 for instance the Atlanta school district was 32% black by 1974 it was 82% black the Detroit school district was over 90% black by the time the remedies began to make their way to the federal courts and all of that made it not just difficult but in some cases impossible to achieve meaningful integration within the conventional civil rights model proposed in which we look for a villain in which we look for a responsible entity in charge it with achieving the remedy a case called Millican versus Bradley makes that quite clear because in 1971 in Millican after Detroit's public schools had become overwhelmingly African American a district court found that relief of segregation in the public schools cannot be accomplished within the corporate geographic limits of the city in other words the school district within the city is too now too heavily black for us to achieve meaningful segregation so the court defies the desegregation plan that included the suburbs of Detroit and affirming the sixth circuit noted that if we were to hold that a school district boundaries were an absolute barrier to the Detroit school desegregation plan we would be opening away to nullify Brown versus Board of Education the supreme court however in Millican versus Bradley did exactly that and held that the record contained evidence of segregated conditions only in Detroit schools and therefore only Detroit could be required to remedy the segregation not its surrounding suburbs even though it was conceded that Detroit alone could not do so so local government territorial boundaries are now doing the work of segregation in Millican and in a lot of other districts in the United States in some sense the people who are responsible for de jure segregation have de-camped the suburbs that the suburban districts as districts never engaged in de jure discrimination and so the supreme court says they can't be required to participate in the remedy so what I want us to notice here is that we have a structural feature but a legal feature boundaries between Detroit and Gris Point or law they're not features of nature or topography their laws but those laws aren't interrogated and the result is as the six circuit said that we've opened away to nullify Brown versus Board of Education subsequently in the 1990s we had courts in one sense kind of adopting a peace with honor approach to the struggle for school desegregation and declaring district after district in compliance having achieved what's called unitary status now this is despite the fact that the schools remain segregated and it was a result of all that and as a result of relaxing or abandoning the effort to desegregate the schools we're now moving in the opposite direction then we get in 2007 to the parents involved case now at this point the school districts that are engaged in desegregation plans most of them are doing so voluntarily been declared in unitary status they're no longer under court order but they're doing something in continuing some of the policies in a milder form but continuing some of the policies that the courts had imposed Seattle Washington Louisville Kentucky or among those school districts and have mild desegregation plans involving magnet schools and involving the use of race as one factor among many in breaking ties to determine who can enter a school so the idea is that if your presence will help to integrate the school that's one factor among a lot of others for school assignment and the Supreme Court strikes it down quoting Brown versus Board of Education so no state has any authority to use race as a factor in affording educational opportunities to among its citizens in the oral argument of Brown versus Board of Education Supreme Court takes that up and concludes that the way to stop discrimination on the basis of race is to stop discriminating on the basis of race sounds good the syllogistic formulation and as a result one way of looking at the doctrine is that we have a consistent application of the law across the cases another way of looking at those that development is that Brown has been turned on its head so that a legal doctrine that everyone at the time of Brown understood was designed in order to prevent the segregation of the schools is now designed applied to prevent the integration of the schools but from a sufficiently scholastic legal perspective it makes sense. Is it really so hard to tell the difference between such defensible and pernicious uses of race I'd argue at the time a Brown versus Board of Education it was quite clear that when the attorneys involved argued against allowing the state to classify their students because of race they understood that in a social context in which those classifications not only came with stigmatizing meaning but also came with profound material consequences that were quite the opposite in 2007 with respect to the plans that issue in Louisville and Seattle. Now one might say well very well and good but this is just conservatives cynically hijacking the civil rights movement and its doctrine for their own purposes that's that's all we're talking about here. And I'd say not only that it may be partially that but not only that but liberals too have adopted some surprising applications of civil rights laws for instance in 2008 a California plaintiff filed a lawsuit to stop Mother's Day sex discrimination lawsuit what happened in 2005 the California Angels baseball team held a Mother's Day celebration and they handed out goody bags to all of the mothers who attended the game but since they couldn't be sure who were mothers and who weren't the team decided to generalize mothers as females 18 years and over and give them and only them a Mother's Day gift bag the plaintiff in the case was a man didn't fit the description and didn't get a gift bag and sued for sex discrimination. Now it turns out he lost that lawsuit but this lawsuit wasn't as crazy as it sounded because plaintiffs in California had prevailed in suing for sex discrimination in the context of ladies night promotions at bars and night clubs and they prevailed in many many different cases not just in New York but in states all over the United States not all states but many based on the observation that ladies night is sex discrimination straight forward any kind of promotion that's applied to women and not to men counts as sex discrimination. We had similar lawsuits some successful against gyms that set up separate workout facilities for men and women for reasons that may be controversial but are at least understandable and I think not understandable in terms of hostility towards either men or women. Rita Haley the president for the New York City chapter of the national organization for women remarked I'm concerned that we're looking for discrimination in all the wrong places and yet it wasn't just opportunistic lawyers or conservative seeking to hijack civil rights policy but also California's famously liberal Supreme Court Justice Rose Byrd who said the legality of sex based discounts cannot depend on subjective value judgments about the types of sex based distinctions that are important or harmful.  So discrimination is discrimination I suggest that this echoes the argument made by the Supreme Court and parents involved that we can't tell the difference between policies that are benign and malignant that we can't tell the difference between policies that further and entrench historical patterns of disadvantage and those that do not do so and perhaps even reverse those patterns. And I would suggest that not only can we but we must make such value judgments that the narrow and scholastic view of our employment discrimination laws is not only inadequate to capturing much of the injustice that goes on in our society but it's actually counterproductive as we can see particularly in the case of parents involved which flips Brown versus Board of Education for practical purposes on its head. I'd like to talk a little bit about the kinds of social injustices we face now and how some of those many of those won't be addressed by looking for discreet discriminatory actions or actors. So in my stomping ground the Silicon Valley in which most people running companies express pretty liberal views on social issues women for instance are you know kind of like when you type into the web browser but the address is gone you get the 404 or not found. Well that's women in high tech. 17% at Google 3 of 36 people and worse in some context very small numbers and it's very difficult to argue that those kinds of disparities are a result either of lack of qualifications or lack of interest on the part of women for what are some of the most well paid and powerful jobs in the new economy. Instead what you seem to have in the context of high tech is a culture of a boys club. Many of these companies in fact started off in fraternities or dorms among a group of young men and as they grew they weren't thinking about how to be the most inclusive workplace they were simply thinking about how to get the next round of venture capital funding and developed a culture which was a lot like the culture of fraternity and surprise surprise that culture is not a great fit for women and now one of the main rationales expressed by companies in the Silicon Valley when they reject applicants is a lack of culture that very common justification. In some instances you'll find explicit sexist and explicit sexist commons but they don't always line up with the biggest problems in terms of the disparities they can be hard to prove or hard to prove the relationship between the sexist comment and the decision making so causation is a problem. But we know we have a problem I would argue. Again this doesn't mean that we should abandon the civil rights approach when it's working but it means we need more and we shouldn't allow it to capture our imagination as the universe in the full extent of possible approaches to dealing with social injustice. I could talk a little bit about race in the context of there are a few more statistics that demonstrate both with respect to race and with respect to sex the disparity in the workforce in Silicon Valley that was just a few years ago. But let's talk about policing for just a moment. Black Lives Matter has drawn our attention to the problem of police abuses and racial injustices and criminal justice but obviously this problem is nothing new. This is just the latest generation in decades of conflicts between the black community and police. Every one of which generated an outcry and a promise to fix the problem and was described as a wake up call and every one of which failed to do so so that we're still fighting the same fight 50, 60 years later. Even now it's difficult to find the responsible officer against whom prosecutors are willing to indict or grand juries are willing to indict and even harder to get convictions and yet we have instance after instance of the problem continuing unabated. These are just a few examples of people basically making the same observation about each incident time after time. Are we looking though for discriminatory actors or is there something more complicated going on? In Baltimore for instance one of the more egregious incidents you three of the six officers accused in the Freddie Gray killing were black. The police chief was black, mayor was black. It's not exactly the description of Jim Crow type system of discrimination and yet the problem is undeniable. A few reasons why that are structural. In Ferguson we'll remember the justice department found that the police department was engaged in revenue policing. They're pulling people over for minor infractions not because they think the infraction is a problem but because they need to raise money for their cash-strapped police department. That's a structural problem. It has to do with local government boundaries again just like the problem in Millicott. It has to do with the decentralization of the responsibility for law enforcement in our society which is something that's quite unique to the United States. I find in talking to people in other countries they're quite shocked to learn just how decentralized the responsibility for something as important as law enforcement and the states monopoly on violence is in the United States. So that we have a situation in which some police departments are so cash strapped that they need to engage in this kind of policing that creates the overwhelming likelihood that we'll have a spiral of escalation and the problems get out of control. In terms of actual death according to the Berkeley law professor Frank Zimmering who just wrote an excellent book called When Police Kill. Police killed roughly a thousand Americans every year in the United States. African Americans are 2.3 times more likely to be killed by police than whites. Part of the problem is neighborhood segregation once again and the concentration of African American in neighborhoods that are understood to be or defined to be problems for the police. Places where police are intervening in a distinctive and more aggressive manner. To be sure part of the problem is police bias. And then part of the problem is the proliferation of guns in our society. American police it turns out are 25 times more likely to be killed in the line of duty than our police in the United Kingdom and 40 times more likely to be killed than police officers in Germany. That difference is explained almost entirely by the availability of firearms in our society. Guns are used in 70 to 97% of all fatal attacks on police and police respond to that risk with lethal force so that the encounters that happen disproportionately the encounters are happening in minority communities and when those encounters happen they're much more likely to end up with a dead body at the end of them than they would be in another context. These are structural problems. My claim here is not that there are no answers to these problems, far from it. It's that the answers to these problems are multi-valent and eliminating discrimination is only one part of the puzzle and in many cases an increasingly small part of the puzzle. In part because discrimination is the way we've defined it in our society is very hard to prove and in part because the structural and cultural and institutional features that generate these inequities operate even when people aren't in fact discriminating. The discrimination has happened in the past and that's why we have a segregated minority neighborhood. The discrimination has happened at another level of authority for instance the decision to heavily police a particular neighborhood and the consequences are more dire sometimes for reasons that have very little to do with discrimination. Again, I don't want to suggest that we abandon the civil rights anti-discrimination approach. It's done good work and it's doing good work but I do want to suggest that that approach shouldn't be the only way and probably shouldn't even be the central way that we think about dealing with problems of social injustice. The fact that that approach has captured our imagination because precisely because it was so successful in dealing with a discrete type of social problem has meant that we found it harder to deal with other types of social problems. My suggestion and this is quite general for reform is that one we actually need the cooperation of the people that we're regulating to figure out how to deal with the institutionalized and cultural forces that are creating these inequalities and right now dealing with it exclusively in the context of an adversarial legal system guarantees that we don't get their buy-in very often. In fact the only times we get their buy-in is perhaps in the form of some consent decree and that tellingly can be quite successful in generating reform but in general we don't get their buy-in we need it and so we might want to consider other approaches to getting the cooperation of the regulated entities so that we don't have a situation where it's just courts trying to figure out what to do from the outside without an understanding of the institutions that we're regulating. I'd suggest one thing if we could think about this as a social problem outside the conventional adversarial legal system and imagine what we do in the context of other types of administrative regulation one thing that we do is we look at measurable progress and we penalize actors that don't make measurable progress toward the goal that they have a duty to and we reward or at least don't penalize those who do. We now live in a society in which statistical computation is extremely easy to do and increasingly sophisticated and yet we're quite skeptical in many cases of the use of data in order to measure outcomes in the context of civil rights and anti-discrimination in part because of the symmetrical approach that I've described and critiqued earlier we think of any attempt to deal with statistics as requiring proportional representation or quotas and quotas have become a dirty word in our society I think they shouldn't be that if we look at these types of patterned inequalities as a social problem and need of a solution the way in modern government the administrative state deals with such problems is through numbers and we've deprived ourselves of that very powerful tool in the context of civil rights which is too bad. So in conclusion I think that we need new thinking about these problems alongside the old thinking but that to some extent the old thinking is in the way of new thinking because we've understood it to be the comprehensive solution to the problem rather than one solution among many and in our contemporary environment and particularly in confronting a context in which explicit bias and racism is now sadly looking as if it's become more acceptable we desperately I think need both approaches. Thank you. Richard thanks very much for your talk. I was very interested in your prescription for where we go from here and it struck me that some of the work by Sable and Simon and what they call democratic experimentalism is consistent with your approach. Am I on to something there? Yes, yes. In fact I know Bill Simon Welle and I admire his work and I think that you know that they are looking at new approaches to dealing with some of a wide range of problems in our society and that's those kind of new ideas that I'd like to see as much more open to. Thank you. Thank you so much for your talk. I was wondering if you could give an example of your last bullet point. I'm very intrigued with this idea of immunity from discrimination lawsuits and and how that might work out. Well yeah I mean I want to tread carefully here and I can't claim to have a you know a detailed policy proposal but what I suggest is this in the contemporary context of anti-discrimination law a complaint by lots of employers let's just take employers for an example is you know we get blindsided by a big discrimination suit which comes out of the blue it's very costly in terms of a bad PR and we as an entity fail like we didn't we don't know what we're supposed to do. The entity so part of the idea of the proposal is that the entity is a separate thing from the decision-maker so although the entity is in charge of and responsible for the decisions made by the decision-maker there's not a perfect relationship. What can the entity do? Well you can set up procedures which could be monitored and regulated and it can look to goals and timetables old phrase from the public contracting context in the 1970s what if we expanded that to say to the the entity as an entity if you have the appropriate procedures in place and if you meet the appropriate goals and timetables and improving the problem in your workforce we'll give you some kind of limited immunity to individual lawsuits. Now I doubt that's controversial and I suppose I mean it to be but what I want to use this example in order to push a point which is right now our overwhelming impulse is to think of any instance involving this type of social injustice as an individual injury involving an individual bad actor and an individual victim and I suggest that we would make better progress as a society if we thought of it as a systemic set of injuries as a result of a culture in which both responsibility and injury are diffused. In the contemporary anti-discrimination landscape the number of people who actually file and can successfully complete an anti-discrimination lawsuit is a tiny fraction of the people who are victims of discrimination we know that. We know first of all that the cost of filing the lawsuit is high and that many people with the strongest suits don't bother particularly in the context of something like failure to hire.  So there's a lot of injury that's happening that's not taken up. Employment discrimination lawsuits are the least successful in any civil lawsuit in the federal bar according to recent statistics or in the federal courts and so it's you know we're not doing a great job right now of remedying individual injury and if we trade it off a little bit of individual entitlement in exchange for a big improvement in the social outcome I'd suggest that might be a good trade. I thank you very much again. I'm also really intrigued by the prescriptions for a potential new way of thinking about how we approach this but I as I think about it I wonder how do we make sure that these new ideas carrots as opposed to only sticks don't fall prey to the the legalistic limitations that we already have. If quotas have become a dirty word and we create carrots around doing things around integration won't the unhappy who didn't buy in fight the same battles that have been fought already. We'll fight the same battles that have been fought already. And one you know make a make a ladies night lawsuit. No no doubt. So I mean in part of what I'm suggesting is that we need in the first part of the talk we do need lawyers and judges to rethink the way they take up the conventional anti-discrimination approach to these questions. You know I think for instance as much as I admire Rose Bird's career that that it was just wrong to say we can't make value-based distinctions between you did in fact your job as a judge is to make value-based judgments is between various types of discrimination and that that needs to be done and done explicitly and owned up to you and defended and that that would open or begin to open the possibility of these new approaches but you're right I mean if we adopt the position that that Justice Roberts adopted and parents involved that slams the door to a lot of otherwise promising approaches that would be more effective arguably less costly and would allow us to use the statistical tools that we have available to us. So what do you do in situations where the emotional power of storytelling and an individual's case can be made more effectively than a situation where you're bringing big data into the picture where little Shirley is going to trump big data in a lot of situations. Oh absolutely in litigation that's true and that's part of why I also suggest that we can attack this problem in some instances more effectively through something that looks like an administrative remedy or regulation as opposed to litigation litigation is great for telling that compelling story and you know again there's a place for that don't want to suggest otherwise but the administrative state can do remarkable things with respect to big pervasive problems in which responsibility is diffused but large entities can make an intervention and that's what we haven't done much of on this in the context of civil rights and these kinds of social injustices we've done a little bit you know there's precedent in the context of government contracting for instance for requirements like government contractors don't underutilize and goals and timetables but it's very limited and it's in battle I'd like to see that approach expanded and it's true that what I'm suggesting is that the emotional story that's proved so effective and so powerful in certain instances is now in the way that the because the inability to tell that emotional story or the desperation to find a way to tell that emotional story even when it doesn't quite fit the problem has distracted us from potential more sweeping solutions and so sometimes we need the emotional story but I think we rely way too heavily on it right now yeah I agree and you know I mean I'm not a statistician by training but I work with people okay yeah I work with people who are very very good at quantitative statistical methods and you know one of their great frustrations is when the statistics aren't believed when they're ironclad or when dueling statisticians can cloud the issue in the context of litigation when there's one side that's clearly right in the other side that's just lying so better statistical training could fix that problem but that's endemic to the litigation system in which you have a judge who may or may not be well versed enough in the statistical methods to tell the difference between you know good statistical methods and bad ones I think we could do better in the context of the administration with respect to that because we do have the information in some circumstances not that we don't know it's that we can't get the information where it needs to be but you know it is certain and another thing it's one thing I would like my ambition for this approach is that we don't have to worry so much about the the complexities that you've described we can kind of leave that to the decision-maker so if we simply say look we know that these numbers are no good we know that you know three percent four percent women in a field where you've got fifty percent women in the applicant pool is no good you can argue about whether or not it's because you had discriminatory hiring practices or whether it's because you recruited from places where women were under represented or it's culture fit or whatever you fix that you know but we expect to see an improvement in these numbers you're more aware of where the problems coming from same with policing if you say that it's not biased officers but it's you know two problems in the neighborhood or whatever you yeah you know that very well but we expect to see you know fewer of these kinds of harassment arrests we expect to see improved numbers over time and you can figure out how to do that better than certainly better than a judge or a lawyer who's only you know looking at that for a discrete period of time so I think you know it does require controversial policy judgments about you know just how much improvement is reasonable to expect I acknowledge that and those are political questions that are going to be hard to answer but I do think in the contemporary environment you know there's pretty wide spread agreement that some of these things are a problem that there's a relatively small number of people who say like you know I think this is just fine the way it is there's some but not that many and so having acknowledged there's a problem we can at least have consensus that there are to be some improvement and we'll fight out how much later professor Ford certainly the courts have been responsible and complicit in a lot of decisions over the history of the United States that have been unfair I suspect that they're going to continue to be but my my concern is and when you say pursuing an administrative perhaps kind of I'll use a term remedy it kind of I'm troubled by my concern is well who are the administrators or who appoints the administrators so if we go to our current elected elected officers you know I would be personally I'd be very very concerned about an administrator appointed by the current administration trying to come up with a remedy for me right and so I mean and so we have you know we have the issue with federal laws we have issues with state laws we have municipal laws etc etc so I was afraid someone was gonna ask that question because of course that is the way I mean there is a weakness to any institutional approach to this problem and I pointed out some of the weaknesses of relying on litigation and lawyers in the judiciary the weakness of the administrative approaches exactly what you put your finger on these are political appointees and there's also potentially the problem of capture if the administration in question isn't vigilant about that it's that's a problem I won't deny it I will say this that it these are to some significant extent problems that will have to be resolved in the political sphere with the problems of democracy now again I don't want to say that we should abandon litigation but at least given the way our approach to litigation has evolved it's a limited approach and it's one that is you know increasingly running up against its limits in terms of the kind of injustices we face so at least a bore sustained focus on the inevitably political nature of the problems and the remedies has the potential to give us better outcomes when the right people are in charge but to be sure just as it with anything else in democracy if the wrong people are in charge you're gonna get bad policies and bad outcomes I have a question very much along these same lines but I'm wondering about I mean I find your proposal at the end very intriguing to move away from the model of focusing on the bad actor and trying to figure out how to you know to create new incentives to avoid that problem thinking about the problem of police violence so that you know that we've seen focusing on the bad actor is very ineffective at coming up with solutions and I don't just thinking through if we had a say a federal program that gave money to local police departments if they could show a decrease in the number of lethal encounters with civilians and I and I could see the appeal of that I could see why that would might be a nice program because then the local police would have to think about what do we need to do to decrease lethal encounters and they'll come up with solutions and we think that they'll figure out a way and we don't have to point fingers at them and say you're bad actors they just know if they start if they you know start killing fewer people they'll get more money and we think that the culture would be good my my concern about it is then are there unintended consequences of a program like that that are gonna recreate the problem that we're dealing with that is is there something like Millikin that's gonna be out there where you know the you know if you know they're gonna continue to do the bad thing that we're concerned about but figure out some way to keep getting you know to get the money that that we're after or is this concern you know is this you know should we is it worth the whatever the risk of these bad consequences are figuring out ways around the system maybe it's captured by the administrative agency or maybe they're gonna be fighting about what constitutes a lethal encounter they'll be using not more nonlethal encounters the word you know there'll be other harms that will increase to you to address this problem or is it worth you know trying to experiment in the first place right so yeah I mean I think it's true that there's always the risk and indeed probably the certainty that regulated entities will try to manipulate the metrics in some way I'm sure that problem is quite pronounced in other areas of administrative law where compliance is based on on metrics you know I mean I'm thinking pollution for instance where you know whatever type of pollution is regulated the company reduces that but they may increase pollution that's not regulated or that's regulated less severely so yeah it's a risk it does seem to me that that's a question of the design of the policy and you know a sufficiently thoughtful design would be able to head off at least some of those problems I do think that there's a also a big question of which level of government needs to be pressed and particularly with police violence you know is it the state or the local because the state is responsible for the organization of the local government so you don't get Ferguson without a state that allows its its local government entities to be set up in such a way that you've got police departments that can't you know afford to operate without revenue policing maybe the state is the right place to put the pressure but you know my thought is if you could make it more you know financially better for Ferguson not to engage in revenue policing than to engage in it that would be a step in the right direction and yes I mean I think the problems of the institutional design and their risks but their risks that could be managed so this is this is a completely unfair analogy all right and but my point is I wonder how how this gets sold or how this gets this idea gets spread because one of the things that I keep thinking in this regard is again it's unfair but it's like tort reform you know you have you have you have a program out there where there's suspicion as to why are you enacting tort reform is that the trial lawyers are on one side the insurance companies are on another side how do you get to a point where it's not viewed as tort reform but it's viewed as something that is beneficial all around that's an interesting question I my thought is that there is room for some win-win proposals at least with respect to the parties that are conventionally plaintiffs and those that are conventionally defendants in these types of lawsuits so you know with respect to employment discrimination for instance you might think that a proposal that's going to require the employer to meet certain numerical goals or to demonstrate that they're using best best practices or something like that would be something employers would hate but often you hear the employers say we don't know what we're supposed to do if someone would just tell us what we're supposed to do to avoid these lawsuits we'll do it but what's happening now is that you know one manager does the wrong thing and then we get hit with a giant lawsuit and it's bad for PR and it doesn't reflect what we really value in our business so they might actually prefer more regulation you know that gives them something like a safe harbor this is you know you're now in compliance you're not a bad actor you don't deserve a big PR hit you've done the things that we think you should be doing in order to you know improve the situation now on the plaintiff side the loser is the individual who might have won the lawsuit but now is going to be faced with an employer with immunity or some kind of a new affirmative defense I mean this I'm actually kind of borrowing this from the idea of affirmative defenses in the sex harassment context for instance where you know if that kind of rule worked well there's argument about whether it does but if it worked well you could say most potential victims of sex harassment would be better off with an employer with a good policy in place to stop it even though the employer gets the affirmative defense in the individual case so the individual is arguably worse off but in that context the individuals don't know who they are in advance and we we can presume that most people would rather not have a lawsuit they'd rather not have the harassment or the discrimination of whatever it is in the first place so there's a potential for win-win with respect to this I think now you know certainly there are people who are going to dislike it because it's quotas on ideological grounds and you know those people you just are our enemies and they have to be defeated if the proposal is going to move forward but I think most people you know it's not anti-business or it's not anti- employer that's the important part it can be pro-social justice and kind of pro-employer at the same time that's what I'd like to think and I think something similar is true with police where you know people running police departments generally don't want to have a police department that's just involved in the business of harassing people of color that's not the objective and but there is a problem with the institutional culture there's a problem with bias on the part of individual officers some not all and there's a problem of these institutional and structural factors that haven't been on earth I bet you the Ferguson police department would like nothing better than to have enough money that they didn't do engage in revenue policing and that's where we want to get where you know you could do your the real job as a police officer and not this this job that's been foisted on you by by by finances so you know there are cases that are going to be harder than that to crack I acknowledge but I do think that there's some win-win cases there's some blow-hanging fruit if you will at least we could pick that so I'm gonna do one more question I'm gonna have right over here hello I'm undergrad my name is Asia I just wanted to ask do you think legislation is the true solution to altering the underlying power bias embedded in American society no I would say legislation is a partial solution you know and it what I would be proposing in terms of legislative reform we could analogize it to the Civil Rights Act of 1964 that was legislation but the way the legislation work was that it gave individuals a private right of action and that the main make of the enforcement mechanism was private enforcement that's a policy decision you know from the level of policy it's a policy decision to decide that we're gonna go about enforcing the law through private litigation as opposed to some other mechanism and my suggestion is that we can at least re-examine that policy decision and ask us how well it's work whether it makes sense and in what context it makes sense to continue that or whether it needs to be augmented in other ways but ultimately legislation is only a partial solution I mean I think the the ideal and what one sees in environments where these kinds of long-standing inequities are really improved is a combination of you know legislation and social morality and changes in the culture that feed on each other until the old practices just aren't acceptable anymore so that over time you don't need that much in the way of regulation and lawsuits because people just aren't doing it public accommodations are a good example of a case in which you know it's extremely rare now to hear about discrimination in restaurants or lunch counters or nightclub every once in a while you hear about it but that's not a significant social problem the law worked and it worked remarkably well and remarkably quickly because it was the right law targeted at the right kind of problem so that the whole apparatus and total and cultural support system just kind of crumbled I hope that we could find similarly well-targeted solutions for some of these problems that now look really intractable because they're different in significant ways than public accommodations discrimination was and right now we're kind of treating them all similar and we've had great success in public accommodations but employment not so hot housing terrible terrible results and so maybe that should make us think we need another policy approach to kind of begin the virtuous cycle thank you okay so I just wanted to thank everyone for coming out this afternoon to hear Professor Ford and a huge thank you to Professor Ford for your talk so we have some I'm not gonna tell you what it is but but maybe you want to use it for your book signing which which is actually gonna take place right outside here outside of 283 the bookstore is staffed so there are copies of Professor's book Universal Rights don't know down under rights down to earth yeah I know me too that's I was hoping you could help me so books are for purchase you can use cash credit card if you're a student you can use your student ID and then Professor Ford will be seated outside to sign them so if you wanted to catch him and say a few words outside will be the great best place to do it but I've got to keep him on schedule so so thank you all for being here this afternoon thank you


Yukosuka's Naval Supply Systems Command Fleet Logistics Center builds stronger relations with their Japanese counterparts of the Japanese Maritime Self-Defense Forces Ship Supply Depot during a sports day on Yukosuka Naval Base. Well, today is a tradition that we have. It allows us to come together, enjoy sportsmanship, and getting to know one another. The day consists of seven events with teams receiving points based on how well they do during each game. Well, it just gets us together and have fun and not, you know, there's so much negative sometimes outside, so it just inheres the positive of us being together and just playing around and talking, you know, yes, as a language barrier, but with sports we're able to interact and get together. NAFSA Sports Day is an annual event that they plan to continue to grow in the years to come. Petty Officer Michael Rainey, Yukosuka Naval Base, Japan.