Welcome everyone. Welcome to this conversation hosted by the Neukom Center for the Rule of Law. We're excited to hear from these two great thinkers on how governments and institutions work or don't work to deliver what the public needs. I am Professor Diego Zambrano, the faculty director of the Neukom Center, and I'm going to be moderating the discussion.
Francis Fukuyama is the Olivier Nomellini Senior Fellow at Stanford University's Freeman Spogli Institute and a faculty member of FSI's Center for Democracy, Development and the Rule of Law. A renowned political scientist whose recent work examines institutional decay, state capacity, and the challenges facing liberal democracies in the 21st century.
Marc Dunkelman is a fellow at Brown University's Watson Institute for International and Public Affairs, and author of Why Nothing Works, which you should check out right outside the room, examining why our society increasingly struggles to translate resources into functional infrastructure and services.
So we're gonna be having an open conversation. I have some questions for both of our guests, and then hopefully they'll have questions for each other. And then we'll invite some of your own questions. Marc, let me just start with the core premise of your book. So why doesn't, or why doesn't anything work anymore? So what's the thesis?
So the story of the book is that I had a job in New York and I was living in Washington and then Providence, and I'm taking the train into New York a fair amount and, at a certain point, I was rereading The Power Broker, which I assume a lot of folks here will know or at least have purchased and put on a bookshelf to look impressive.
It's a tome of a book that won the Pulitzer Prize in 1975 about Robert Moses, who was the most powerful man in New York from the thirties to the sixties, and built many of the things that you would know in New York from Lincoln Center to Jones Beach to the UN headquarters, and lots of the highways and housing developments, public housing zones that people will know.
And the most famous chapter of that book is called One Mile. And it traces the effort he did in the mid 1950s to build the Cross Bronx Expressway through a whole series of working class neighborhoods in the Bronx. Much to the consternation of almost everyone affected. He destroyed these neighborhoods by turning a deaf ear to their complaints and building it anyway, to the point that when that famous phrase, 'ladies and gentlemen, the Bronx is burning' in the late 1970s during the World Series. The Bronx was burning because this highway had sapped vitality from a series of working class neighborhoods.
And that was such a remarkable story that this one bureaucrat, Robert Moses, who was so uber powerful, had been able to do this despite all the complaints. And I read this book and I was pulling into Penn Station, which, as you may know, is the second most heavily trafficked transit hub on the globe after a train station in Japan. More people go through Penn Station every day than go through Newark, LaGuardia, and Kennedy combined, which is more people than live in the city of Baltimore.
Until recently, for years and years, it was not nice. It was an ugly place. It was a rat's warren. A famous Yale architecture critic said because the glorious version of Penn Station had been torn down in 1953 that we once entered the city like emperors and now scurry like rats.
And it was remarkable to me as I thought about it, that for years and years I'd been reading articles in the New York Times about how we were about to have a new Penn Station, and yet here I was pulling into the same terrible public infrastructure. And it occurred to me in that moment, why was it that Robert Moses had been able to do this? This project that everyone hated in the 1950s, he was able to do a bad project in the 1950s, and now we seem to be incapable of getting the good one done in current day.
And so that led me on this journey of trying to understand what had happened. And I've already been talking for a long time, so I'm tempted to go to the next question, but to be very brief, the argument in the book is that particularly progressives, but really all those involved in the public sphere in America have two competing impulses.
And one impulse is to look at a tragedy of the commons: we don't have a nice train station, we don't have a sewer system, or a school system, or a transit system. And these are not a problem that we ourselves can solve on our own. So we wanna push power up into some bureaucracy or some institution that will solve that tragedy of the commons for us. Push power up, and that is sort of the apotheosis of the Tennessee Valley Authority, which brought power to people who didn't have it in the 1930s.
And we have a competing impulse, I call that first impulse a Hamiltonian impulse, after Alexander Hamilton who wanted to have big, strong, robust, centralized institutions. We have a competing impulse, which is to say that there is some oppressive force above us, some government force, some supreme imperialistic entity that is robbing us of our ability to seek 'life, liberty and the pursuit of happiness'. And we need to return power to individuals so that they can do that, called that a Jeffersonian impulse.
And that we are, in American life, trying to balance these two impulses to their maximum effect. And we err in various ways, so that the Hamiltonian impulse was too prevalent in the fifties, when Robert Moses was at work, he could do things without consulting the people who would be affected by it, or allowing them any entrance into the process of decision making. And now we've overcorrected for that, so that it's too easy to stop a good project, and we need to rebalance. So that is the premise of the book. And I've been filibustering, so I will now pass it back.
So you can see some of the core themes there, the inability to build infrastructure, inability to build housing, the inability to get things done, a weak state capacity, and then the historical drivers that show up from time to time in the United States.
So Frank, you've written extensively about state capacity, you've written about vetocracy, and I know that you're very interested in this subject. So where does your work align with Marc and where does it disagree, potentially?
I agree very much with the overall perspective, and I think that Marc actually provides a nice theoretical casing for thinking about the current American problem. I would say, by the way, to an audience of law school students, that the answer to this Hamiltonian versus Jeffersonian impulse will affect where you're gonna get your next jobs out of law school.
Because I think Marc's argument would've been that, let's say 50 years ago or certainly during the New Deal, you would've gone to work as the general counsel of a federal agency, part of a power structure that involved the state, but beginning in the late 1960s, that all changed where people began to think of the state as the enemy, in a sense, the enemy of individual liberties. And you go to work for a public interest law firm, and you spend your career suing the government to keep it from doing things.
And I think that's a kind of cultural change that's been very broad, which I think Marc's book identifies quite accurately, and I agree with him that we need to shift that balance. I'm a political scientist, so I think about this in institutional terms. I think that our constitutional system has contributed to this problem in a number of ways.
So we Americans, first of all, as a matter of political culture, we don't trust government. We have a very complex constitutional system that creates a lot of checks and balances to prevent the executive from doing stuff. And for the most part, especially in the Trump era, we're very grateful that we have the courts and these kinds of safeguards. But I think that with this shift from Hamiltonian to Jeffersonian normative values we have created a set of institutions that increasingly make it difficult to actually do things, especially like building infrastructure.
Infrastructure, for me, has always been a kind of classic democratic governance problem. You want a public good that is collectively good for the whole society, but you can't do anything without harming particular individual interests. And so it's the job of the political system to balance those two competing goods. And we've shifted the balance very much to the protection of those individual interests, and away from the ability to collectively accomplish things.
So I'll give you my favorite example of this, which is CEQA. So the California Environmental Quality Act, which was passed in 1971. So first of all, in the United States we have this bizarre system of private attorney generals, right? In Europe, the government makes environmental laws, it defines what an environmental offense is, and then it enforces the law. In the United States, as Diego has written in this new book of his, we don't do it that way. We leave it up to private individuals to sue on behalf of a public good, but without actually defining what an environmental offense is.
The way that CEQA has evolved, there are 40 million residents of California, all 40 million of them have standing to sue any project, public or private, that they want, no statute of limitations, and they can sue anonymously. And so you get this mountain of litigation anytime you want to do California high speed rail or anything that injures the interest of a particular party in one of these big projects.
And that's just an example of what I've called vetocracy, where we delegate in our system a lot of veto power to different kinds of groups. There are other examples besides state level law, like CEQA. And we don't delegate actual authority to make decisions, and to drive things to a decision. And it's a problem, I think, of all modern democracies. But I think the United States has it worse than most European democracies, again, because we have this long term cultural inclination to distrust government, and therefore to want to load up our institutions with a lot of ways of stopping things from happening.
Great. So you can see how both of you are identifying some high level pathologies that get translated into dysfunction in a bunch of different ways. Some of it is private litigation, which as Frank mentioned, I write about, some of it is cultural, some of it is an overreaction to periods in the past. But I still wanna understand why this is happening in this period.
So Marc, you said this is an overreaction to an earlier period of Robert Moses, but it's not like culture changed. For you, Frank, you said Americans are distrustful of government in general. Why would they be less or more distrustful now than during the New Deal? What would you say is the thing that changed there?
Maybe these things do go through these cycles where you have a good idea that gets implemented, but then as time goes on, the implementation becomes less careful. You get a piling up of abuses and then at a certain point people say, no, enough, we have to swing the pendulum back in the other direction.
In fact, this is a question that I have for you, Marc, because if we do swing the pendulum back, you don't want to swing it all the way back to Robert Moses, right? You don't want those kinds of abuses, and particularly in a period when executive power is being abused the way it is under the current administration, I think everybody in this room can see that there are dangers of giving the government too much authority.
And so I guess the question is how do you think about that problem? How do you swing the pendulum back so that the state actually has the ability to build Penn Stations and high speed rails and those sort of things without empowering the kind of authoritarian tendencies that we're seeing in the current administration?
My short answer to that is, that's why I'm here because I don't know, and I wanted to talk to a bunch of lawyers about how to fix that problem. But that is the hundred thousand dollars question. And it's where my work will take me next. My general view is that I have, and maybe for those of you who buy the book, the unsatisfying answer I provide is that I want to create a system where everyone has a voice, which they didn't have in the Moses era, but no one has a veto.
So there's some deliberative process, but then ultimately someone decides. I want to say three things. First is, the most frequent question I get when I'm talking about the book is, you call yourself a progressive, how can in this moment where the president of the United States is threatening to annihilate entire civilizations, and abusing law and power in all sorts of ways, can you be an advocate for giving the executive branch more power? That sounds bananas.
And my answer is that the reason that we have Trump is because the executive branch couldn't do enough. The answer misplaces the cart and the horse, that if government were delivering today, people would not be so inclined to vote for someone whose central promise was that he would be the vengeance for those who are frustrated that the government is not delivering. So that is the way I view it, if we want to prevent demagogues from having greater political appeal, we need to make sure that the government delivers in ways that it has not, but how we get there is essentially a legal question.
The paperback is coming out not long from now, and I begin the paperback with this sort of family story that I hope will be relatable to the audience, which is, I'm a father of two daughters and they're older now, but when they were six and nine, my wife would get home from work on Friday nights and often say, I just don't have the energy to cook, and no one wanted me to cook, so I would say, let's go out to dinner. And the girls would squeal and be excited, and then we'd get to this question of where are we gonna go to dinner?
And the 9-year-old was in a period where she was only eating fried chicken sandwiches, and the 6-year-old had been told by a friend that they'd gone to get donuts for dinner, so she wanted to get donuts for dinner. And my wife wanted whatever all the cool kids were eating, unseasoned quinoa or whatever it was. And no one cared what I had to say, but the issue was like, how are you gonna make that decision?
Are you gonna make it so that my wife gets to choose every time, in which case, it's vegetarian every meal? Is it that we all get a turn, so that we're having donuts once every third Friday night? What is a fair way to do this that is not so powerful that there's a Hamiltonian solution, which is that the parents get to decide every time, a Jeffersonian decision where, you know, my 6-year-old would get to veto anything that wasn't Dunkin' Donuts?
And the job for the law students who are about to go out into the world is to think about, how would you legislate a system that were there for the common good? So that we're not all subsisting on donuts and we're not all miserable, at Catherine's suggestion. And that's a hard thing to figure out.
I'm now going to reveal where my research is going. I'm in the middle of studying this new train line that opened in Massachusetts, that connects New Bedford and Fall River, which are two working class towns that have been left behind by the information age, and Boston, which obviously is a thriving hub of technology and business. And in 1991, the governor of Massachusetts said, I'm going to build a train line to connect these two regions, if it doesn't happen by 1997, you can sue me.
So this goes right back to Diego's book. I'm not sure that anyone actually did sue. The line opened last year, 2025. And in the middle of the deliberations over where this line was gonna go, the folks who were interested in making it so it was possible for these largely Hispanic cities, for the residents of the cities to get to Boston and commute, wanted to take a train line, but that train line went through the Hockomock Swamp, which is one of the few wetlands that remains in Eastern Massachusetts and home to the Eastern Box Turtle, which is my favorite kind of turtle, and which is moving towards endangered.
And there's this question whether the EPA, which has the power through section 404 of the Clean Water Act to tell the Army Corps not to permit this kind of thing through a certain place where the water quality might be impacted, they are interested in preserving the wetland, and it ends up that there's no way to get the EPA to move on this.
And that is to get to Frank's sort of broad conception of what it means to have decay in a democratic system, there was nobody in this process who was powerful enough to say, I understand the interests of the wetlands and the box turtle and the tribes that have land where this line is gonna go, and I also understand the economic interests of the Commonwealth and of the people who live in New Bedford and Fall River and of the businesses in Boston that are desperate to have more affordable housing accessible to them for people who are making middle class incomes.
There was no process to mediate these different interests and then say, the public interest is this. So what ended up happening is they built a line that goes around the Hockomock Swamp, which sounds pretty good right now, but the drive from New Bedford to Fall River is 55 minutes without traffic, can be a little longer with traffic. The train line takes an hour and 40.
So we've spent $1.4 billion in Massachusetts in public funding to build a train line that doesn't meet any of the original criteria of what we wanted it to do, which was to speed and to take cars off the road and to lower tailpipe emissions, and yet this is the system that we have.
And so the challenge, I think, for this next generation of law students is to think about how we build systems that are powerful enough not to, in my mind, and I see this recognizing that a lot of people are wildly supportive of South Coast Rail as this rail line is, not that are delivering results that are in the broad public interest. Somehow that has gotten lost and it's up to this next generation to figure out a system that, to Frank's point, doesn't go back to the point that a Robert Moses could just pave over the Hockomock Swamp on a whim. But that doesn't allow us to build infrastructure with limited dollars that isn't actually useful in the way that we need it to be.
Yeah, I actually hate to say this in a law school audience, but I think that one of the big problems is the courts insert themselves in too many of these decisions. With all respect to a powerful judiciary, courts are not good at balancing different kinds of social goods. The good of getting commuters to their workplaces in a timely fashion and protecting the environmental interests in the swamp, that is something that legislatures are preeminently good at because they can deliberate and they can hear evidence and so forth.
But courts are not the body that should be making those kinds of difficult social trade-offs, and they end up doing that, I think, excessively. And you also have a transaction cost to this because courts are slow and they don't produce timely decisions. And so I think we need to figure out a way to have democratically accountable decision making systems that can actually make these kinds of trade-off decisions and be legitimate. If they make mistakes, there's gotta be a system for holding them accountable in a way that Robert Moses was not.
Yeah, no, that's exactly right. And we're teaching a class now where we ask the students to basically come up with comparative examples in other countries, and also within the US, where decision making processes don't rely on ex post litigation. It doesn't go up to a court, and yet you still have some accountability, some independent review, et cetera.
You were both gentle on the law students, but of course there are other authors like Dan Wang that argue that lawyers are the problem. It's the way that lawyers think that is causing a lot of these problems. And that's still an open question whether reform can come from the legal profession or not. It might be that actually sidelining the legal profession is a better solution than actually empowering them.
But let me ask both of you a question. So you brought up the fact that you're progressive, and yet we see that blue states are worse than red states at building. They're worse at building infrastructure, Texas builds a lot more solar than California. They're worse at building housing, Houston does a much better job building housing than any place in California. So what do you make of that?
And for you, Frank, you started with executive power, but we do see some enormous state capacity in our military. The Venezuela operation, flawless, unbelievable amount of state capacity that no one in the world can match. Operation Warp Speed during COVID was an enormous success. So it's not that we don't have state capacity, we still have it in some areas and not others. So what do you both say about those questions?
It is true that there are areas of American government that really are pretty good at what they do. The military being the prime example. I think that actually that depends on protecting them from politics, in a way depoliticizing them, giving them a realm of autonomy where they are ultimately accountable in a democratic political system, but they can set their own standards in terms of who they promote, the kinds of people that staff these agencies.
And they are given a substantial amount of discretion to do their job as defined legislatively by Congress. So it has to be very specific, but they actually are given a lot of bureaucratic autonomy to carry out the mission as they see it, given their expertise and professional background. The problem is that we have encroached in many respects on that autonomy in all sorts of ways. Sometimes for very good reasons. You wanna apply laws in terms of fairness and in hiring and so forth.
But I think that the solution, generally speaking, that Americans come up with, and how to make the bureaucracy better. This is something that Nick Bagley in this famous law review, Michigan Law Review article a few years ago, wrote about. The typical American response is to think that legitimacy comes from more procedures. And so you get more legitimacy not by the outcomes that you actually achieve, but by adding procedures. And I think that is a fundamental mistake, that you also need to think about outcomes.
How do you measure the outcome of our military? Do they actually carry out successful missions? And there was a period when they didn't do that so much. But they have learned, I think, that they've got to have discretionary authority within a carefully constitutionally designated sphere where they can actually do their job as professionals. So this is a legal and a cultural issue together.
There was a time at the turn of the 20th century where W.E.B. Du Bois had a phrase for this that now escapes me, but is in the book. But there was a notion after the Civil War that we wanted to keep the judges should be the most powerful branch, and like really at the turn of the century, judges were the most, the courts were the most powerful branch, certainly in the federal government, and the federal government was very small.
And there was a frustration through the course of the industrial revolution that we wanted to have a more robust government system that could impose minimum wages and maximum hours and do more stuff. And progressives were frustrated that the courts were getting in the way. And so there was a whole legal movement that happens at the turn of the 20th century to move the courts out of the way. So the executive branch can take a larger role.
The best books that I've read on this that sort of humanized it are by Brad Snyder. He wrote a book called The House of Truth, which is about a house where a bunch of young progressives lived in the headspace of Oliver Wendell Holmes, but Felix Frankfurter was there and Walter Lippmann and I think Gifford Pinchot. And this movement like slowly after, certainly with the end of the Lochner court in 1937, prevails, and we get the expansion of the executive branch through the New Deal and that extends.
And then there's another cultural shift which happens in the sixties, which I think Frank alluded to with the Vietnam War. But there are all these examples of this big establishment that Progressivism had wanted to empower to solve big issues like the Tennessee Valley Authority, like the Social Security Administration, like you name, name all of the big progressive accomplishments of mid-century.
And the feeling at the time was that this establishment had turned us in the wrong direction. They'd gotten us involved in the war. There were chemicals on our crops that would cause birth defects. They were letting cars on the streets that were unsafe at any speed, to use Ralph Nader's phrase. And progressivism switched culturally to the sort of notion that, to Frank's point about procedure, no, like we need to give ordinary people some more agency in the process if we're gonna get the outcomes that we want.
And that impulse wasn't wrong, it was that the establishment was failing us, but it became a cultural phenomenon. Like if you watch the movies of the early seventies, Chinatown or One Flew Over the Cuckoo's Nest, the constant motif is that there is some powerful, whether it's Nurse Ratched or whoever the villain is in Chinatown, who's building the water system, John Huston. Right, like those are bad dudes, those are Robert Moses and Richard Nixon and Robert McNamara and Jim Crow, right, like these are all systems that are oppressive.
And the law reacted against the Frankfurter, get the judges outta the way, let the executive branch cook thing. And today Frankfurter, who was a fairly consequential justice, is a forgotten figure. And that's in part because I think his judicial philosophy, which was very reticent to have the courts involved in a lot of decisions, went out of style.
And to that end, like the story that I think probably older legal scholars here know, and that probably younger people who have never heard of Felix Frankfurter may not, is like he's the last justice to sign on to Brown v. Board. He is very reticent to have the government, have the courts involved in this kind of working in the real world. And comes around, but it sours for obvious reasons.
The appetite for the Frankfurter mode of thinking, that's sort of a reflection of how out of vogue the notion that we should empower the executive branch to make decisions as Frankfurter, who is Louis Brandeis's greatest disciple, he's not afraid of big decisions in the way that Brandeis was. And that's a big intellectual jump. But it has meant that lawyers who joined in the spirit of Ralph Nader, PIRG organizations, and have been suing the government exactly as Frank alluded earlier, and progressive legislators since the seventies.
Their view is, it's not, I push back a little on Bagley's 'the procedure fetish', which makes it sound like progressives just want procedure because they like procedure. I don't disagree with Bagley's larger point, but the reason that they were into procedure was because the establishment absent procedure had been abusive. It had torn down the Bronx. It had gotten us into Vietnam. It had done all sorts of things. It had done urban renewal. Right, like there were terrible things that the establishment had done.
And so the solution to this, and we were trying to think of the name earlier, the guy who wrote The Greening of America, who wrote a famous law review article. But that notion infected politics, law, culture, and all of it. And now we're realizing that you take away the ability of the executive to make decisions or even of Congress to make decisions, and you're really up a creek.
The last thing I do wanna say here, and this is me speaking as a progressive, we don't have a theory of how these decisions should be made, right? Now we're talking about how we don't like that the courts are involved. Right now, Donald Trump, as the president of the United States, is canceling offshore wind programs, and the reason that efforts to deal with NEPA, which is the national version of CEQA, called the SPEED Act, is not moving through Congress, because Democrats don't have faith that if you took away some of the procedural requirements, that Trump wouldn't continue to cancel clean projects and only approve dirty ones.
So we don't want the courts deciding, we don't want Donald Trump deciding. And if you were to make it so that the legislators were deciding, you'd get, you know what we had mid-century with the Army Corps of Engineers, where members of Congress were telling the Army Corps where to build dams, largely because they wanted a public work in their district. Not because it was good for the environment, not because it actually made land more agriculturally appropriate to plant.
Not for any good reason, but to have their name emblazoned on a grand public work. Or folks who are probably too young to remember the hubbub around the bridge to nowhere, which was an earmark that the Alaska delegation put into an appropriations bill years and years ago to build a very expensive bridge in Alaska that went to an island that very few people live on at enormous public expense. People don't like the Congress making the decision either.
We on the left always look at what the outcome is, and if it's not the outcome that we say, the corporations, it's 'cause of the corporations or corruption, or if we only had campaign finance. We need to have a theory, and again, this is to the law students, we need to have a theory of how these decisions should be made in a way where all these voices are heard and then someone ultimately makes a decision, and that we are okay with the outcome, even if that wasn't what we wanted.
I am one of 17 Cincinnati Bengals fans in the entire world, maybe another one is in here, doubtful. And in the Super Bowl when we made the Super Bowl finally a few years ago, there was a call of pass interference in the end of the fourth quarter, and it was not pass interference. And I'm angry about it still, but I also accept that call was made. The rules of the game weren't followed and the Rams won the game. And I'm not gonna litigate that, right? I've accepted it.
We need a system where, I don't know whether those turtles were worth sacrificing to the interests of a shorter commute for people who live in New Bedford and need to get to, I'm not like, I don't have a strong opinion about that. But that being said, we need a system where someone can decide. And we aren't forced to build a train line to nowhere, which is not to suggest that Boston or New Bedford, but a train line that no one wants to take.
And I hope we answer this at the presentations later today, but this is this generation's burden, to figure out how we're gonna build systems where we are okay with the outcome even if it's not the one that we preferred.
You wanna say something? Yeah, so I would put the challenge in very concrete terms. We need systems for promoting public participation. They didn't exist in Robert Moses' day. There was no town hall meetings, no feedback and so forth. And we built a lot of very unstructured participatory systems. The first one was really under the APA with notice and comment where ordinary citizens could comment on a rule change. But those systems aren't working very well.
You take a notice and comment, a major rule change like the FCC's net neutrality, they got over a million comments, right? And if you don't respond to each one of them adequately, you can get litigation saying you didn't actually follow the APA. And it leads to this big morass where you don't get decisions. Town hall meetings or public hearings that are held really sometimes never end. We were talking about this before the talk where you get some public decision that needs to be made and they just go on and on without actually leading to a resolution.
So I would say the challenge, the institutional design challenge is how do you actually solicit. Let me back up a little bit. My colleague Bruce Cain in the political science department wrote a very, I think, very insightful book, it was basically about democratic reform, and he pointed out that there's a basic problem with the theory underlying public participation, which is that ordinary citizens have the time, knowledge, and willingness to actually contribute meaningfully to public decisions. And the fact of the matter is that most ordinary citizens simply do not.
And so you need a way of structuring public participation that can capture those citizens that actually want to contribute to this. But it needs to have several qualifying characteristics. First is you don't want a system that is easy to capture by organized interests. I think one of the problems in this country is that our civil society is over-organized, quite frankly, right?
You hold a public hearing on any subject, you take California, a public hearing on doing a building project, a multi-family, multi-story building in San Francisco, who's gonna show up to that public hearing in advance? It's gonna be the labor union, it's gonna be the developers, it's gonna be the Sierra Club. There's some very well organized interests that are always attending because they've got the time and the resources to do that.
What doesn't get represented in that kind of a group are, let's say, young families that can't afford to buy a house because there isn't enough multifamily housing, right? So you've got a big representation problem. Second issue is deliberation. When you hold one of these open hearings, there's almost no real deliberation where people are actually dealing with a trade-off.
Okay, there's gonna be more noise, more congestion in this neighborhood if we build this housing project, but we have high house prices, young families can't afford housing. How do we reconcile those two different social goods? You need to deliberate about that because that's really what's supposed to happen in a democracy. And then you need to deal with this problem of scale because really to get deliberation and adequate representation, the scale at which we, at a federal level, it's very hard to understand how you're gonna get these things in proper balance.
And so we need to figure out how to move these decisions down to the appropriate level of decision making. And I think that is a design challenge that is out there and it needs to be taken up by someone. We have a deliberative democracy lab at CDDRL in our center over at FSI. Jim Fishkin runs it. He's been trying to wrestle with this problem with deliberation for a long time, getting past the overrepresentation of established groups through some process of sortition, which is used in Europe, or he just does random polling and then has structures for actually forcing people to deliberate.
So all of these things I think are actually on the frontier of democracy, but it's a combination of both normative and pragmatic theory about how you actually build a new set of institutions that can encompass some of these features. So that we can actually get decisions that are democratically legitimate, that reflect societal interest, but actually are decisions.
And I want to get to the questions from the audience, so maybe this will be a comment, but if I understand your read of the history, Marc, is that there isn't an inevitable relationship between progressivism and the kind of paralysis that we've observed, that those two things can be separated. But of course it seems to me like if you look at the Progressive Coalition today, there is such a relationship that I don't think you could untangle without getting rid of the coalition, right?
You have interest groups like environmental interest groups like the Sierra Club, et cetera. You have labor unions who have an interest in many ways in imposing higher costs so that they get a share of the labor contracts. And so it seems inherent to the current Progressive Coalition actually, that you would have this kind of paralysis.
You also do see elected officials obsess over voice and outreach. They seem to measure the success of what they're doing by whether they've outreached to enough people, and they seem to have a discomfort with getting anything done if it affects one person in a negative way. And I don't think that you can easily say, oh, the Progressive Coalition can change. No, it wouldn't be the Progressive Coalition anymore.
You made me think about that because I do want to get to the audience. And for Frank, I do think a really difficult part for you is that you've identified that distrust strain in American culture as a source of all this, but you today wrote a piece pointing out that trust in society in the US has been declining precipitously over the last 30 years. And so if you have a precipitous decline in trust, why would anyone trust these decision makers to get these decisions done? So let's take some questions and then maybe you can fold in some of your answers to this. But I saw a couple of hands up here.
So thanks, this is super interesting. I want to think about how we translate it to the era in which we find ourselves right now, right? Maybe this involves speaking up for lawyers, right? But I think the kind of story that I hear both of you telling is a story in part that sort of assumes that there is a positive project that either the government or private actors are engaged in, and that sort of one of the things that happens between law and interest groups is they interfere with that project.
I wanna know what happens when you reverse that. Over the last 15 months, we've basically seen a project to dismantle competence in our governmental institutions. And it seems to me the lawyers are there also serving a kind of get in the way role, but that get in the way role might now be the thing that is allowing us to have an institutional competency if we make it to the other side of this. So I guess the question is, is it inherent? Lawyers just get in the way? And is that a good thing or a bad thing?
No, it's neither. It's good when you wanna do something good and positive, and it's, I'm sorry, the lawyers getting in the way is bad when you want to do something positive and it's good when you wanna stop a bad person from doing something. And in a way there's no way of reconciling that. I think it depends on the level of risk that you want to take in your society, that if you want to have the upside gains, maybe you have to take a few of those blockages out. But that also leaves you vulnerable to the bad people using that same power for bad purposes. And I don't know that there's a clear way of reconciling those.
I think actually, as I've tried to think about executive power in the current era, one of the things you actually do want to do is not have anything like a unitary executive, right? Because in my view you actually need a kind of separation of powers within the executive branch itself in order to protect expertise, right? That's really what the current issue is right now with the court's effort to enforce a unitary executive.
And that means that you can have these islands of expertise, skill, decision-making power within the executive, but it's not controlled by one lunatic. That's really what's the issue in front of us right now. And I think that the same power that can be used for good or evil, that's a permanent trade-off. But I do think you can distribute power in certain ways that facilitate the good uses of power a little bit more than they facilitate the bad uses.
