Interview with Theodore Ruger, Dean of Penn Law

Roundtable:  you’ve done a lot of work in the field of health law, so what is it specifically about that that attracted you to health law?


Theodore Ruger:  Well, obviously as Dean of the law school, I think many areas of the law are fascinating and always changing. But I think particularly with health law, it’s an area of law that obviously impacts people’s lives dramatically. And it is so connected with developments in, so health law is connected with developments in the medical sphere, in the health insurance and policy sphere. So it really is a great lens by which to look at the way law is impacted by economic and political trends and in turn law shapes interactions that have real impact on people’s lives. Another thing that fascinates me with health law is it’s a product of every aspect of the US legal system. So health law is created by the Federal Government and the State Government. It’s created by courts and legislatures, administrative agencies and private negotiations. So when we look at legal change in the health law range, we are seeing the full breadths of legal institutions that we study. There are some areas of law that may be we just look to the Supreme Court, or we just look to Congress, but with health law because it’s both a statutory and a common law topic, because it’s a federal and a state law topic, we really see a lot of institutional variations, and that itself is very interesting.

RT:  That makes sense. You recently wrote that Supreme Court’s decision in the Hallali  case was a sequel to the Robert Court’s decision on the constitutionality of the Affordable Care Act. Why do you think so and would you consider last summer’s King v Burwell decision a sequel on top of those cases?


TR:  A trilogy, yeah. Yeah, the answer is yes, I do think in ways that are very fascinating the Supreme Court’s involvement with this major new statute the Affordable Care Act. It has been an interesting series of cases and I do think that we ought to look at them in totality. What I think, I think what’s interesting about those cases is in the two most important for health law per say are the 2012 Sedalias one and the recent King vs Burwell one. Because a contrary opinion in either one of those cases would have completed gutted the Affordable Health Act. So I give the Supreme Court credit for allowing the legislation to play out, my view is that I think there are many things that one could reasonably criticize about the statute, but it ought to be, if American voters and policymakers just decide that it’s the wrong way to do health policy, that ought to be addressed in Congress and the White House, not by five votes on the Supreme Court. Now, what I do think and wrote, along with my wife (a Penn professor) and another scholar, is that I think that the Hobby Lobby decision was wrongly decided. And I think that has real implications for the court in weighing women’s rights, vis a vis claims of religious belief. So I actually think it is wrong headed and the decision, as the dissent in that case by Justice Ginsburg lays out, has some very problematic features. To the extent it illustrates the lack of concern the majority had for women’s healthcare rights. That said, even though Hobby Lobby was a wrong turn in my view, it did not fundamentally undercut the main goals of the Affordable Care Act, which were to extend health insurance coverage and controlled costs. Hobby Lobby raised a really important issue that is going to recur in other contexts about the clash between religious belief and our fundamental commitment to equality. But from a health insurance point of view, it doesn’t go to the core of the Act, which is providing health insurance to more people and figuring out better ways to pay for it.


RT:  So, drug prices have been in the news this year due to the escapades, especially of Martin Shkreli. Do you think the government has a duty to play a more active role in regulating this perceived market failure?


TR:  Well, I don’t support and wouldn’t support the government directly regulating drug prices in it’s role as regulator. However, it’s remarkable that the government, that the Federal Government doesn’t play a role in negotiating drug prices in it’s role as the biggest single purchaser of drugs in the country. And here I’m talking about Medicare Part D. And one policy that has been consistent through President Bush to President Obama has been the government’s unwillingness to use its purchasing power through Medicare to negotiate better prices on behalf of American taxpayers. There’s been an implicit deal with the pharmaceutical industry that the government is not going to act as a highly leveraged purchaser in order to drive prices down. I don’t think that policy will continue for the next few decades or should continue indefinitely for the next few decades. I think the fact is the government, on behalf of taxpayers, does play a major role in purchasing drugs and just like many other countries in the world, or just like the government does in other contracting that it does, it almost has a fiduciary obligation of doing a better job with bargaining for drug prices.  

RT:  We have a lot of readers coming from a lot of different backgrounds. Many have a big interest in law, and other people not so much an interest in law, but in other fields. You use history and political science a lot in your writings to explain nature applications of judicial authority. Could you talk about how you do this and maybe an example for somebody who is familiar with your work?


TR:  Sure. I mean, so it’s my philosophy of law, which is kind of the law school's philosophy, is that law is not, it’s not just a dead letter sitting in law books, it’s and indeed what we think of the law is really whatever rules are in the law books as translated by actual human institutions like courts and legislatures and even the public at large. And what that means is that if we look at history, and if we look at kind of political debates, we see the engines that create legal change in really interesting ways. So I think we can learn a lot from history. One thing we learn is that the things that we continue to debate today, like the major propositions of American life, like what is it mean to say we’re a society that believes in equality. That’s always been contested and the answer is not just going to be found in the law books, it’s going to be found in the normative beliefs that we have as a society. And then we put pressure on institutions like Congress and courts to change that. So a good example even in the lifetime of your leadership, which is a shorter lifetime than mine, is when I was in law school. I graduated in 1995, and it would have been unthinkable that the law of the land and the Fourteenth Amendment would be interpreted to protect same sex marriage. And that was just 20 years ago. But it’s entirely appropriate. I think that the Supreme Court’s decision last summer in Obergefell was totally appropriate. A recognition that our conception of equality has changed. And that’s a process that obviously it famously happened from Plessy v. Ferguson to Brown v. The Board of Education where what equal means needs to be raised and education changed. That’s probably the process of legal development is the law changing in accordance with societal changes. And so in that sense, I very much believe the law is alive. And ultimately, the law is just a creation of human beings. It has to fit with the human values that we share. So when we look historically, we see that change when we look around at what American’s and other countries care about in terms of political care. It’s an important input into the law.


RT: You wrote an article about Chief Justice Rehnquist’s appointment to the FISA Court. Could you briefly explain how the appointments to FISA Court work and what impact his appointments have had on the FISA Court?


TR:  Sure. The Foreign Intelligence Surveillance Act Court is a really unique institution. So let’s start with the basic proposition that in most states and in the Federal Government, most courts are generalist courts, meaning a bunch of different issues come before them. And there’s a certain degree of transparency and randomness in which case goes to which judge. And because we know that judges have differences of opinion. Judges are known as, if you are a criminal defendant, and I say this with all due respect to judges, it might matter which judge you go before during sentencing. And that’s not a knock on judges, it’s just saying that judges do follow the law, but there is enough discretion within their job that some of their own philosophy of that they bring to the law might matter in their decisions. There is a certain degree of randomness and transparency where cases aren’t steered to particular judges, or if they are, that’s sometimes a problem. We like to think that it’s somewhat eclectic and random which judge hears a particular case. Now the FISA Court is a very specialized court and it has been in the news. It plays this important, very secret role in mediating National Security and civil liberties. What bothered me about the way the judges to that court are appointed is that it is done in an unusual way. They are hand picked by the Chief Justice, which goes against usually when we choose judges to sit on particular courts, and think about even as messy as the process is now with Judge Garland, we have some process by which different views come to bear on the decision, whether that judge sits on a particular seat. So federal judges are confirmed that way. Some state judges are elected. A lot of people think that it’s not the best way, but at least there is some kind of check on which judge is going to fill what seat. What in my view is anomalous about the FISA Court and a couple other specialized courts that I mentioned in the article is that it is the Chief Justice alone who picks that. And that would give in theory at least, the Chief Justice the power to pick judges who thought a certain way on National Security and install them on the FISA Court. Now so I have a big theoretical problem on that kind of appointment power vested in a single individual and in the article I spell out other ideas. For instance you could do it, you could have the whole court vote, the whole Supreme Court, and there you might get some healthy, moderate moderation of opinion. So as I said, I have a big theoretical problem. It’s less clear and one of the things that I tried to test and I don’t feel like I came to any firm conclusions, it’s less clear from an actual and empirical point of view that either Chief Justice Rehnquist or Chief Justice Roberts attempted to or succeeded in radically stacking the court in one way or another. I certainly think the big problem that I have is the potential is there.  When I looked at the actual judges they picked, it was difficult to prove anything definitive about the kind of choices they made. But certainly, it’s as much a problem in the structure of the court as an actual problem I saw in the decisions they made. And the fact is federal judges as a whole are much more likely to come out of prosecution backgrounds than defense lawyer backgrounds. And that’s true of ones who are appointed by Democrats as well as Republicans. So that makes it hard to perceive a trend in favor of say, pro-government judges on the FISA Court because the fact is judges, federal judges as a whole, are much more likely to have worked in government as opposed to working as State Public Defenders.


RT:  What was the historical background behind this process, making it so that the Chief Justice was behind the appointments?


TR:  Well, I go into that in detail in the article and it’s a process that goes all the way back about a century. It led me to learn about this interesting very important figure in our legal political history: President William Howard Taft. And it’s perhaps no surprise that the only person to serve both as Chief Executive and then Chief Justice of the Federal Judiciary was an individual who brought kind of an almost modern personnel management philosophies to the Federal Court System. So, beginning with Taft and following with some other early 20th century developments, the Chief Justice’s role became much more managerial so that, and this is both in my writing and other scholars have written about, when we think about Chief Justice Roberts, we often think about him as often the key vote in the Supreme Court. And that’s very much true. But he has a large role in how our judiciary works that doesn’t manifest only in Supreme Court cases. And going back all the way to the Chief Justice Taft, it manifested in the ability to make appointments to specialized courts. Now the FISA Court itself, you guys can check this, but that came about with the actual Foreign Intelligence Surveillance Act which was a 1970’s era creation. But the model that the would be courts design for specialized things, that the Chief Justice will assign judges specifically, that goes all the way back to the Taft era.


RT:  That makes sense. Keeping with history since it’s a personal favorite of mine, you wrote a paper in 2005 about Justice Harry Blackmun and his transition from Nixon-nominated to being a liberal Supreme Court Justice, and what do you think as causes these shifts? Are there certain types of judges? I’m sure a lot of people now have read about that. People are likely to make these shifts. Is it predictable? Is it unpredictable?


TR:  So I should say you guys have read my work more carefully than most of my colleagues, so I appreciate it, but what’s important and especially what’s important for people to know who haven’t thought much about judges in the US is we have a very old tradition and recent rare tradition in the world of appointing judges for the rest of their life. Sort of life tenure. Most other countries, or very few other countries do that. Most, even countries that would give justices a long term on their Supreme Courts, they might be for instance a fifteen year term or a ten year term. But we have this phenomenon in the US where judges can be appointed for life. Which means that people can really serve good and do serve on the bench for two or three decades. And then that leads to a really an interesting question about human nature as manifested in the way they decide legal cases. People’s opinions change on key questions. And collaborating with some political scientists who have some really important empirical methods for studying votes and tracking this, my conclusion is that yes, for some judges, they illustrate some change in their voting behavior in particularly a career of more than a decade. And Harry Blackmun, in my view, did exhibit a change when he intended to vote in a more liberal direction as his career progressed. Judges will often deny this and even I think Justice Blackmun denied this and they say, I didn’t change, it’s just that the court got more conservative, but my vote stayed the same. The evidence suggests that that’s not quite accurate with Blackmun, that even doing our best to hold the issues constant as time as a control variables, his votes did become somewhat more, to use maybe an artificial binary, they became somewhat more in a liberal direction as his career progressed. We have seen, so the other thing, and this is relying on others work as much as mine, there had been slightly more judges over past fifty years whose votes have moved in a liberal direction than a conservative direction. I don’t know why that is so. I think I have offered and some other scholars have offered a hypothesis, but I should say for all of that, the vast majority of judges are relatively constant in their time on the bench. So Blackmun is unusual. Justice Stevens perhaps is unusual. Most judices don’t vary that much over time, but it raises issues that are still open questions. Nobody has been able to crack the judicial mind completely because nobody has been able to map the human brain completely. And we still have lots of interesting questions about why judges decide cases the way they do.


RT:  So we are going to move on to talking a little bit more about you and just the different kinds of jobs you’ve held. So, you clerked for Justice Breyer. Could you tell us about the biggest things you took away from that experience?


TR:  Sure. I mean it was a wonderful job clerking for Justice Breyer for only a year. But I learned an immense amount and that came really both to the nature of the institution and the nature of the man Justice Breyer. So the institution of course is an incredible place to work. The Supreme Court, which takes about a hundred cases a year from every area of law and just really interesting to work on and learn about the full range of Federal Law cases. And then I think the experience was that much more interesting because of Justice Breyer being a former law professor himself, kind of ran his chambers like a almost like an academic seminar at times when all of us would talk together and work together on the cases. And I learned an immense amount from him and the way he approached things.  He had a very curious mind about legal topics and really tried to get to the essence of the legal question and then have us do research to support him in his thinking. So that made it that much more special working for him. And I should say, you know, every justice has four clerks, so you multiply that by nine, there were 36 of us, and that was another great part of the experience was interacting with a few dozen other young lawyers, whom we often disagreed. We always debated and I learned a lot from them as well. I’m gratified that two of them, Professor Christopher Yu and Professor Stephen Bibas were clerking for Justice Kennedy the same year I was with Breyer. And so it’s great that we are colleagues again and still get to discuss and debate legal topics.


RT:  And so, as Dean of Penn Law, what are your day to day duties?


TR:  It’s a really amazingly enriching job because I get to deal with the full breadth of the law school experience and so that means thinking about our curriculum and our vision for what a modern law school should be and we’re really trying to adapt and change with the times and to provide a top flight interdisciplinary legal education that kind of launches our students into the highest levels of career success. It entails talking with employers in the public and private spheres to think about where the legal profession is going and make sure our students are prepared. It entails working with faculty on the curriculum and kind of the subsequent vision of the topics we are addressing here. And also working with them to bring talented new faculty to Penn. It entails something I had very little experience with before, even though I had been on the faculty, which is kind of getting out in the community and in the world and kind of around the country meeting with thousands of Penn Law Alumni. Just doing fascinating things and really impactful interesting things around the country and the world. And I think I’ve travelled to over 20 different cities in the past year and the enthusiasm from Penn Law alumni and employers in those cities are tremendous. I’ve been in Beijing, Houston, San Francisco, Boston, Miami, you know, that’s not even the half of it. So that’s been really gratifying. And then just I have a new appreciation of the tremendous staff that work here, who kind of work in student services and careers and admissions. And just kind of seeing the student experience from a more holistic perspective than when I did when I was a teacher. So it’s been great. The law school’s in very good shape. First and foremost, students are getting jobs at a rate that’s better than almost any law school in the country. Which definitely reflects the whole atmosphere. When people are secure about their career futures, they are able to be intellectually curious and explore both the law school and other parts of the university. I mean, the other big thing that we encourage more than any other school in the country, is encouraging our law students to take classes in other schools here at Penn. And this fits with my own philosophy as a scholar that what I was saying that the law is not sealed off in a law book, it’s connected to economics, politics, business, health care.  

RT:  Have you embarked on any major initiatives since you’ve been Dean? Anything that you’d want to brag about to?


TR:  So I think it’s, my philosophy is that I want to build on and expand the success that we’ve had. I think to the extent the great luxury that I have as we sit here in this beautiful new building is that all of my initiative and my fund raising and my kind of growth is in human capital. So the initiative is raising money to support student scholarships, both generally and with a focus on the public interest. Recruiting the best faculty here. We’ve got a number of faculty recruitment efforts under way. We are moving in some interesting new interdisciplinary areas. We are building on long standing and tremendous partnership with Wharton and on both the student and faculty space. But we’re developing some interesting other interdisciplinary avenues with the medical school and engineering school. And we’re educating doctors in our Master’s of Health Law program. And so it’s a kind of, the philosophy is kind of building on what we do well, but taking it in new directions. We’re also kind of expanded our initiatives around the globe and trying to kind bring scholars and leaders from other countries here to speak at Penn as well as subsidize our students and faculty to go and engage with other universities and projects around the world. We’re doing great at kind of expanding our global footprint that way.


RT:  And lastly, as maybe for Sam and I or for our readers, do you have any advice for undergraduates who are looking to apply to law school?


TR:  Yeah, I think this is a great time to come to law school because every law school, including the top ones. And no place more so than Penn, realizes that we can’t take anything for granted. That we live in a shifting and very dynamic legal world where the legal profession is heading in new directions. And that’s given us the impetus to rethink our curriculum, make sure that students get the value for money that they came to law school for. Make sure at Penn that we’ve done a great job making sure they get the career options that they come to law school for. So we  are emphatically not running on autopilot. We realize that we need to continue to rethink legal education and make sure that the curriculum and the training we give corIntervieweeonds with the kind of fluid intelligence and ability to handle shifting terrains and cognate disciplines as well as law. Like economics and medicine and technology. And we need to implicate that to students. So we’re doing some really interesting things in our curriculum and all three years to kind of make sure that law school changes with the times and provides a fulfilling career with lots of options in the private and public sector.


RT:  Do you have anything else Sam?


Sam:  Really quickly, categorically it’s interesting that as a dean of a law school you are able to express your opinions so frankly one way or the other. And I’m just, I don’t know if I was expecting impartiality, but it’s just interesting. How do you balance you having your own opinions and every professor having their own opinions with wanting to have a broad and heated discussion going among your students?


TR:  Yeah, that’s a good question. I mean so I think one of the things we value most here is that we have a spectrum of views reflected on almost every major issue. And we’ve had interesting discussions about for everything. Just in the past couple months, we’ve had interesting discussions ranging on topics like Justice Scalia’s legacy to police violence and law enforcement and different tension that is inherent between wanting to protect public safety and protect the rights of minority communities. Those are just in the past couple months. And what I’m most proud of about Penn Law is that people do speak their mind, people do differ, but we largely do a good job of accepting each other’s opinions. And that’s not just the faculty, or even primarily the faculty, that’s our students as much as the faculty. So I view my role as dean as trying to facilitate that, but I do it out of a scholarly tradition, or a scholarly role myself, so if I’ve, if there are topics that I’ve written about and spoken about, I think it’s more intellectually honest to be respectful of differing opinions, but to, where I have a view on a certain legal issue, I don’t want to hide that view. So there are a few issues like, on the Affordable Care Act which I’ve written about and continue to speak about or with gun control. I joined a letter with some other law deans urging the president to consider prudent gun control measures. There are things where I have my own view of the constitution and I think it serves the community to, for me to freely express my opinion where appropriate.


RT:  Well I think that pretty much does it for us.


TR:  Great, thank you so much.


RT:  Thank you so much for doing this.