0:10

Hello, welcome

0:14

to Slate Money, your guide to the business

0:16

and finance news of the week. I'm Felix

0:18

Amadeus Axios with Emily Peck of Axios. Hello,

0:21

hello. With Elizabeth Spires of New York

0:23

Times. Hello. We

0:25

have all manner of court cases to

0:27

talk about this week. The Supreme Court

0:29

has been very busy and it's been

0:31

talking about Chevron this and Perdue that

0:34

and Herring Fisherman is

0:36

all up for discussion. So

0:38

that's exactly what we're going to do. We're going to

0:40

talk jurisprudence this

0:43

week. We are also going to talk about

0:45

stock market concentration and mega caps. We

0:48

have a slate plus segment all

0:50

about the humble spud, which apparently

0:52

is gained in humility over recent

0:54

years. No one loves it anymore.

0:57

Be sorry for your potato. It's

1:00

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AI with confidence. So

2:02

while the whole political

2:05

world was freaking out about something, something

2:07

to bait something, the

2:09

Supreme Court was extremely

2:11

active this week. And

2:14

it's basically made the whole question of who is resident much

2:17

less important. This is my quick

2:19

reaction to a couple of things.

2:22

One ruling about SEC administrative courts

2:24

and one bigger ruling about something

2:26

known as the Chevron Doctrine, which

2:29

basically both of them say

2:31

this massive executive branch that

2:33

we have is too

2:35

big and has too much power and

2:38

the only people that can really make

2:40

rules are Congress and not the executive.

2:43

And Emily, does this

2:46

mean that maybe the presidency and

2:48

the executive branch and the way

2:50

that we're used to America running

2:52

is like this is the end

2:54

of the road? I

2:56

don't know, Felix. So I think

2:58

you're right to the extent that

3:00

the Supreme Court is clearly in

3:02

getting rid of Chevron deference and

3:04

in curbing the SEC's power and

3:06

another decision this week. The Supreme

3:08

Court is very clearly curbing

3:11

the power of the executive branch and usurping

3:13

that power for the judicial branch. Sonia

3:15

Sotomayor calls it a power grab in her

3:17

dissent in the SEC case and power grab,

3:19

those two words are getting thrown around

3:21

a lot. But the

3:24

question is, there are these

3:27

six conservative judges clearly all

3:29

year last year are

3:31

skeptical of the power of the executive

3:33

branch, the power of the president and

3:35

all these agencies to put

3:37

regulations into place that they don't like.

3:41

But my question is like, what

3:43

happens when a new

3:45

party comes into the Oval Office, that when

3:47

a Republican comes into office, they're

3:50

happy with what they're doing. So all of a sudden,

3:52

the assault on the executive branch,

3:55

maybe slows down. I mean, the precedent

3:57

that they tossed out on

3:59

Friday. this Chevron, which basically says

4:02

in cases where the law is murky, defer

4:05

to the agency. That

4:07

was created during the Reagan administration. I

4:09

guess what I'm saying is, is

4:11

the assault against the executive branch going

4:13

to end when the partisan status of

4:16

the White House flips? But you also

4:18

have to consider, we have a conservative

4:20

majority on the Supreme Court, and most

4:23

of these people are not going to leave anytime soon.

4:25

So one of the significant

4:27

outcomes of this is that the judiciary would

4:29

have so much more power than it has

4:32

right now. So conservatives

4:34

would still dominate decision-making

4:37

on that front. If you look

4:39

at Kagan's dissent, she said the

4:42

majority basically disdains restraint

4:44

of any kind, and

4:46

they hate the administrative state. So

4:48

they're basically just giving themselves exclusive

4:50

power over every open issue, no

4:53

matter how expertise-driven or

4:55

policy-laden and turning itself

4:57

into the country's administrative czar. And

5:00

she sounds furious in this defense, but

5:02

it also sounds terrifying. You want Brett

5:05

Kavanaugh deciding complex

5:08

healthcare issues? It's

5:10

just mind-boggling. Even on an

5:13

ideological basis, it sounds dangerous,

5:16

and it's just going to

5:18

create large-scale disruption, I think.

5:20

There are two different types

5:22

of conservatism in America, and

5:24

I think that there's a

5:26

significant difference between magma-electoral, congressional

5:33

conservatism on the one hand, and

5:36

judicial conservatism on the other

5:38

hand. The Republican

5:40

Party, in its current incarnation,

5:42

is quite activist

5:44

and has a whole bunch of laws that

5:47

it wants to pass and things that it wants to

5:49

do, and is not

5:51

really a small

5:53

government party. Donald

5:56

Trump significantly expanded the size of

5:58

the government. And

6:00

the more sort of small c conservatism that

6:03

I see from people like, you know, I

6:05

mean, Sam Alito or someone like that is

6:07

much more in line with this Chevron ruling, which

6:10

is just basically saying like, we

6:12

don't want the executive branch just kind of

6:14

getting out of control. And I think they

6:16

would be okay, Emily, to your point, I

6:19

think they would be okay with a bargain,

6:21

which basically said, if we constrain the ability

6:23

of the executive branch

6:27

under a democratic president, then it will

6:29

also be constrained under a Republican president.

6:32

But Elizabeth's point is well taken

6:35

that they're

6:37

probably just going to uphold what the,

6:39

they're more likely just because

6:41

of their sort of inherent biases

6:44

to uphold whatever the Republican president

6:46

does. Although I'll argue with myself

6:48

because they don't even like

6:50

it when Republican presidents do anything because...

6:52

Exactly. Yeah. So

6:54

they overturned this regulation regarding

6:57

bump stocks on rifles. They

6:59

turned rifles into semi-automatics. And

7:01

it was a regulation from

7:04

the Trump administration that curbed the

7:06

use of those things and the

7:08

court overturned that. So

7:12

maybe Felix

7:14

was right all along, which pains me to

7:17

say, I guess. Well,

7:20

I think among the Republican party, there's a

7:22

kind of knee-jerk hatred of

7:24

any kind of administrative power that isn't concentrated

7:27

primarily in Congress,

7:30

but they're fine concentrating it

7:32

with a conservative oriented judiciary

7:35

too. But part of what

7:37

they're reflecting is what kind of baseline

7:39

Republicans believe, which is that the administrative

7:41

state is bloated. People

7:44

like their local politicians, but they hate politicians

7:46

in general. And the further up you get

7:48

in the government, the more people

7:51

have these ideas that the government

7:53

is bloated and corrupt. And

7:56

the final thing is just that most

7:58

people don't really understand what these agencies

8:00

do. I have mixed feelings about

8:02

Michael Lewis, but I think he wrote one

8:04

of the best books about the Trump administration

8:07

that wasn't about the Trump administration called The

8:09

Fifth Risk, where I think he went into

8:11

these agencies thinking that he was going to

8:13

find a lot of the stuff

8:15

that Republicans complain about, a

8:17

lot of waste and corruption, blah, blah, blah.

8:20

He ended up writing a book that

8:22

basically defended the administrative state because in

8:25

doing the reporting, he learned a lot about how

8:27

much expertise has to be built into these agencies

8:30

and also that they don't really turn

8:32

over as many people as people think

8:34

they do when the

8:36

president changes or Congress shifts. Yeah,

8:39

I'm reminded of Rick Perry. Remember him

8:42

when he ran for president and he

8:44

was like, I'm going to abolish the

8:46

Department of Energy. And then

8:48

he got put in charge of the Department of Energy. And

8:51

about a week and a half

8:53

after taking up that position, he was like, holy

8:55

shit, this is not only incredibly important, but we

8:57

do incredibly good work and we need more money

8:59

and we need to expand the Department of Energy.

9:03

And this kind of thing where you kind of, I

9:05

think you're absolutely right that, and Michael

9:07

Lewis saw this and lots of people have

9:09

seen this. And like those of us, I

9:11

was just on a call earlier with Emily

9:13

when she's like, oh, I love the Bureau

9:15

of Labor Statistics. They're great. Like there's a

9:17

lot of deep expertise and very, you

9:20

know, I don't know how to put this,

9:22

just incredibly professional people in the government and

9:24

this ideological mistrust of

9:26

anything administrative in the Anything

9:29

Executive branch. It really is

9:31

based in ideology rather than in any kind of

9:33

like empirical evidence of overreach.

9:36

And I think what we see in the

9:38

SEC case, which was narrower than Chevron,

9:40

but is kind of illuminating is the

9:42

SEC, you know, has a bunch of

9:45

good professionals in it and they

9:48

have their own little sort of administrative courts

9:50

which can administer fines and stuff when people

9:52

do fraud. And the

9:55

Supreme Court basically said, yeah, like you

9:57

guys know what you're doing, but You're

10:00

not part of the judicial branch you're part

10:02

of the executive branch and just for that

10:04

reason alone you shouldn't be allowed to do

10:07

that if you want to go ahead and

10:09

find someone you need to find a judge

10:11

to administer that finding that judge needs to

10:13

be in the judicial branch cannot be part

10:15

of the sec and this is all like

10:18

a high level ideological debate that. You

10:20

know might make sense in some kind

10:23

of a civics textbook but late given

10:25

where we're at you know these things always

10:28

path dependent is gonna just make it incredibly

10:30

hard for the government to do its job

10:32

in practice and i think maybe that's the

10:34

point if you're like child's coke or someone

10:36

that's what you want. Yeah also

10:39

between the chevron and the sec ruling

10:41

you know if the point of the

10:43

sec ruling is to argue that people

10:45

who get charged with fraud.

10:47

Is there a jury trial every

10:50

single time it's just gonna flood

10:52

the courts i mean they're creating

10:54

a sort of unsustainable situation where.

10:57

Yeah we already have a stress judicial

10:59

system but now that everything has to

11:02

be litigated through the courts and agencies

11:04

have no discretion it's just

11:06

gonna jam up the judiciary in a way

11:08

that i don't think we are really prepared

11:10

for well on the flip side i mean.

11:13

The court has basically been operating

11:15

as though chevron didn't exist for

11:17

a while now it's issued like

11:19

for example the biden minish knocking

11:21

back the biden administration student loan

11:23

rule. Was kind of like ignoring

11:25

chevron without ignoring chevron you know

11:28

and like in the case the sec case i

11:30

spoke to a former staff attorney. At the agency

11:32

and he said you know it's been clear for

11:35

a while that. The

11:37

court doesn't like these administrative

11:39

in-house sec courts they

11:41

don't like the administrative law judges so

11:43

the agency the sec has been taking any big

11:46

case. To court and

11:48

not using the in-house system

11:50

so i mean is this

11:53

gonna be a radical change with cases flooding the

11:55

courts and might not be so radical like with

11:57

so many. Supreme court rulings i

11:59

might be like. this like slow burn that

12:01

you know you don't realize that the soup

12:03

is really hot because you're sitting in it

12:05

kind of a thing. I'm reaching for an

12:07

analogy. I'm sorry. The thing that strikes me

12:09

about this, if you look at the cases

12:11

that went up to the

12:13

Supreme Court which resulted in this Chevron strike

12:16

down, they were, you're gonna

12:18

love this, they were about herring boats.

12:21

This is a classic little like corner

12:24

of the government that no one ever

12:26

thinks about, right? And there

12:28

are quotas on herring fishing. I'm

12:30

gonna get this wrong, but broadly

12:32

speaking, there are quotas on herring

12:34

fishing. And if you're

12:37

going out to fish for herring, then you

12:39

need a federal observer on your boat to

12:41

make sure that you're not fishing

12:44

too many herring. And

12:47

the agency in charge of placing

12:50

federal observers on boats basically said, well, when

12:52

we put a federal observer on the boat,

12:54

you need to pay $700 a day for

12:58

that federal observer, you know, because they need

13:01

hotel rooms and transport, I don't know, whatever. And

13:04

the herring boat lobby,

13:06

you know, big herring boat

13:08

decided to sue and

13:10

say like, there's nothing in the law about $700

13:13

a day. And in all of the

13:15

courts using Chevron, which has been the

13:18

lawyer of the land since 1983, basically

13:20

said, well, this is a reasonable thing for the

13:23

government to do is to like,

13:25

you know, recoup its costs by charging the herring

13:27

boats $700 a day. And

13:30

it made its way up to the Supreme Court. And the

13:32

Supreme Court basically said, well, it may or may not be

13:34

reasonable, but it's not in the law. And the only person

13:36

who can make the law is Congress. And

13:38

if Congress wants you to charge $700 a day,

13:41

then they need to pass a law saying

13:43

you can charge $700 a

13:45

day. And in a

13:47

world where Congress was capable of

13:50

passing laws, that

13:52

might make sense. But

13:55

we are not in that world. And

13:57

we instead we are in a world where I

13:59

think Congress Congress has passed fewer laws in the

14:02

past few years than at any point in American

14:04

history. There's something boring

14:07

and sensible that would probably

14:09

garner bipartisan support under any

14:12

normal Congress. The

14:14

herringboats have to pay $700 a day would

14:17

never pass because it's just so hard to

14:19

pass anything.

14:21

And so that kind of thing, it

14:24

reminds me in a weird way of

14:26

how the MMT folks

14:28

are like, well, you know, if inflation

14:30

looks like it's ticking up, then Congress

14:32

should just cut spending. And you're like,

14:35

well, maybe Congress should cut spending, but

14:37

there's no way that they actually will.

14:39

That's just not how Congress works in

14:41

the 2020s. Or they should

14:44

just raise taxes a little and you're

14:46

like, have you heard about Congress? Do

14:48

you understand how things work here in

14:50

the United States? Well, also another thing

14:52

to consider is that the agencies exist

14:54

for a reason because something like a

14:56

$700 a day

14:59

fee for fishing boats is

15:02

a little bit small potatoes for

15:04

Congress, which already has a backlogged

15:06

agenda and bills that go nowhere.

15:09

It just doesn't have the capacity to interpret

15:12

in a way that actually

15:15

involves expertise and subject area

15:17

knowledge, every teeny tiny thing

15:19

that people are allowed to do

15:21

in a regulatory basis. That's part

15:23

of the reason why we have these specialized agencies that

15:26

can adjudicate smaller issues like that. Yeah,

15:28

we have Chevron because, you know, Congress

15:30

passes laws that are hundreds of pages

15:33

long and we need

15:35

an agency with expertise to interpret them. And you can't

15:37

go back to Congress on every little $700 fee

15:39

to pass a law. I

15:42

mean, that would freeze everything. So

15:45

I guess my question is, is

15:48

there a world in which Congress

15:51

can basically enact Chevron into law?

15:53

Is there a world in which

15:55

Congress can pass a law saying

15:57

it is our congressional

15:59

intention? that executive agencies

16:02

broadly have a certain amount

16:04

of discretion to interpret what

16:06

we write because we

16:08

don't know how these things are going to play

16:11

out in practice. And we have more important

16:13

things to worry about, like getting

16:15

reelected. So, yeah, is there

16:17

a, because the Supreme Court keeps

16:19

on deferring to what Congress

16:22

says, is there any way that Congress

16:24

could like effectively reinstate Chevron by passing

16:26

it? In theory, yeah. But what's the

16:28

likelihood that that would happen? Does

16:33

the Supreme Court even defer to Congress? I

16:35

mean, in the SEC decision, it was

16:37

over, you know, the SEC's ability

16:40

to hear these penalty

16:42

cases in-house, right? That was

16:44

a new ability passed as

16:47

part of Dodd-Frank. So, even

16:49

in a case where Congress explicitly said, this is

16:51

what I want the SEC to do, the Supreme

16:54

Court was like, no. That's a

16:56

good point. That's a very good point.

16:58

Yeah, like it seems that they're happy

17:00

to ignore congressional intent even when it's

17:03

quite clear if it doesn't align with

17:05

the ideology. Let me move

17:07

on while staying with the Supreme Court because

17:09

I think, and again, like I'm super interested

17:12

in what you two think, I think that

17:15

these Supreme Court decisions,

17:18

both in the Chevron case and

17:20

in the SEC case, can

17:22

broadly be construed

17:25

as being business-friendly in

17:27

a kind of laissez-faire sense insofar as

17:29

businesses can now go ahead and do

17:31

what they want without having to worry

17:33

about government agencies cracking

17:35

down on them so much because the

17:38

powers of government agencies have been constrained

17:40

by these rulings. And the reason I

17:42

bring this up is because friend of

17:44

the pod, Mitu Gulati, put out a

17:46

really great paper a couple of years

17:49

ago basically saying that we have an

17:51

incredibly business-friendly Supreme Court. We've talked about

17:53

this on the pod actually, and

17:55

whether they're Democrat appointees or Republican appointees,

17:58

they generally wind up.

18:00

Leaning in favor of business.

18:15

Before we get to the break, I want

18:17

to tell you about our Slate Plus segment

18:19

for this week because it's pretty hilarious. I

18:22

convinced Elizabeth and Felix to talk about potatoes

18:24

because there was an article in Wired about

18:27

the humble potato. We talk about why it's

18:29

not as popular

18:32

as it used to be and

18:35

about why potatoes are an economically

18:39

significant vegetable. Slate Plus

18:41

members will get to hear that at the end

18:43

of the show. If you're not a Slate Plus

18:45

member, you don't want to hear ads

18:47

right now and you want other great Slate stuff, you

18:49

should sign up for Slate Plus because

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with Slate Plus you get ad-free listening

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on all Slate podcasts. Right now you

18:56

really need Slate Plus because of the

18:58

unmatched Supreme Court coverage that Dahlia Lithwick and

19:00

Mark Joseph Stern do. It's a really important

19:02

time, I think, to sign up and listen

19:05

to them break down all the chaos that's

19:07

been unleashed in the past few weeks. With

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20:01

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20:04

people often don't feel smart about money.

20:07

Fine, what should I do with

20:09

my money on your favorite podcast player to

20:11

hear from people just like you getting help

20:13

from experienced financial advisors? So

20:19

the other ruling that we should talk

20:21

about on the pod this week is

20:23

the Purdue Pharma SACRA family ruling about

20:25

the proposed bankruptcy settlement there. And

20:28

I guess the first question I want to ask, because

20:30

this was a very bipartisan ruling. It

20:33

was 5-4. It didn't seem to

20:35

split across any kind of Republican Democratic lines.

20:39

Would you consider that, Emily,

20:41

to be a pro-business ruling?

20:45

That's a really good question. And

20:48

I don't think the Purdue decision

20:50

is a pro-business ruling.

20:52

So it was a 5-4 ruling

20:54

with Justice Jackson joining the

20:56

majority, which was some of

20:59

the other conservatives. And exactly

21:02

what Felix said, they curbed the power of

21:04

bankruptcy court to shield

21:06

debtors from immunity. And

21:09

companies have been using, and some

21:11

would say abusing, the bankruptcy court

21:13

for years, dating back to asbestos

21:16

claims, using bankruptcy as a

21:18

way to shield themselves from dealing

21:22

with the consequences of their

21:24

actions, essentially, you

21:26

could see that in the Purdue case. And

21:29

this was a case, yeah, where the Supreme

21:31

Court was like, no, you're

21:33

going a step too far here. And

21:35

they did curb the power of the

21:37

bankruptcy court and limit what companies can

21:40

use those courts for. The

21:42

way I read it, and I might be wrong about this,

21:44

but the way I read it is that they

21:47

are OK with the bankruptcy

21:49

court giving debtors

21:52

broad immunities. They're just not OK

21:54

with the bankruptcy court giving non-debtors

21:56

broad immunity. Right, yes. But

21:59

that has well. But the bankruptcy courts

22:01

have been doing that for years since asbestos.

22:04

We read that really good op-ed

22:06

from Melissa Jacobi, a law professor at UNC,

22:08

and she sort of laid out the history

22:11

here going back to the asbestos claims. There

22:13

was a company that filed for

22:15

bankruptcy to shield itself from all the victims

22:17

going after it. And

22:20

not all the victims signed on to

22:22

that because they didn't know who all

22:24

the victims were at the time. What

22:26

they did was come up with this

22:28

work-around where they created a fund, like

22:30

a victims fund where future people

22:33

who had been harmed could go and get

22:35

payouts. The funds

22:37

ran out of money and it didn't

22:40

pay out very much. It wasn't very

22:42

successful yet. That's how a lot of

22:44

these deals got structured going forward. It

22:48

seems like the Supreme Court in this case

22:50

was like, that's not the way we

22:53

want to do it anymore. I'm not

22:55

sure I agree with that. I

22:57

think the Supreme Court would still have been

22:59

okay with that because that's the debt, that's

23:01

not a non-deter. And the

23:03

way that bankruptcy works is that when a

23:05

company has a whole bunch of liabilities, it

23:08

can basically say, I don't have enough money

23:10

to cover all of these current and future

23:13

liabilities. So here's a bunch of

23:15

money to cover them and then I'm just going

23:17

to continue as a going concern free of those

23:19

liabilities. And I think that's still allowed. The

23:22

big question in the Purdue Pharma case is

23:25

Purdue Pharma is the debtor. It

23:28

has a bunch of

23:30

current and future liabilities which are basically

23:32

all taught liabilities in terms

23:34

of claims they have to pay to people who

23:36

died of opioids. There is

23:38

also a non-deter in that case, which is

23:40

the Sanktler family. And

23:43

as part of the proposed settlement in

23:45

that case, the Sanktler family would voluntarily

23:48

give up $6 billion of their

23:50

own money and say, we're going to throw

23:52

this into that kind of fund that Emily

23:54

was just talking about, which will

23:56

then pay out to the victims

23:58

of opioid abuse. and whatnot. But

24:01

in return for paying in that $6

24:03

billion, we will get

24:05

immunity and we will be protected

24:07

from future lawsuits against us from

24:09

people who died of opioids. And

24:12

the Supreme Court basically said, well, you

24:15

can't do that because you're not the debtor,

24:17

you're a non-deter. So that's

24:19

like a stretch too far for a

24:21

bankruptcy court. And I can

24:23

kind of see why they said that,

24:25

but if they don't have that immunity,

24:28

then they have no incentive to put

24:30

any money at all into the fund.

24:32

And this is why the vast majority

24:34

of opioid victims

24:38

were in favor of the settlement and wanted

24:40

to give the settlers that immunity. I

24:43

guess the broader thing I was thinking about last

24:45

night is just like, and everyone

24:47

should go read this Melissa Jacobi op-ed,

24:50

but the bankruptcy system, the bankruptcy courts,

24:52

this is not a place for the opioid

24:55

litigation really to wind up. And maybe Felix,

24:57

you'll disagree with me because Purdue

24:59

was never going to have all the money to pay

25:02

back all these victims. I mean, they

25:04

caused thousands of deaths, sparked a

25:07

nationwide drug crisis, I mean,

25:09

caused untold pain.

25:11

And for some reason in the

25:13

United States, we're set

25:15

up where companies and

25:17

wrongdoers get punished in

25:20

the courts. It doesn't seem like bankruptcy

25:23

court is the right place to

25:25

work out these issues that are

25:27

complicated and deal with human lives

25:29

and are different from like

25:32

the credit stack of the creditors.

25:34

Well, the thing is, it violates the

25:37

intent of the bankruptcy process itself, which

25:39

is to restructure companies so that they

25:41

can continue to survive. And Purdue

25:44

was not, I think, suffering

25:46

financially. It's not like they would have

25:48

gone into bankruptcy were it not for

25:52

all of these lawsuits. And they had

25:54

to argue that the potential liability was

25:56

enough to justify the bankruptcy.

25:59

And that's not... you know, the point of bankruptcy

26:01

law. Yeah, exactly. Okay, so I'm happy

26:03

to take the other side of this one, because

26:06

I think that exactly is the point of bankruptcy

26:08

law, right? The point of

26:10

bankruptcy is that when

26:12

your liabilities exceed your assets,

26:15

then the, you know,

26:17

not everyone with a claim on the company will

26:19

be able to be paid out on that claim.

26:22

And because the claims in

26:25

the US judicial system on

26:27

Purdue are basically unlimited, because

26:30

we have these, you know, juries who

26:32

will award hundreds of millions

26:34

of dollars to like individuals, and

26:36

then we have millions of individuals

26:38

who are affected. The

26:41

size of the claims against Purdue

26:43

is unlimited. And you know, just

26:46

mathematically speaking, if you have unlimited

26:48

claims against a company, the company

26:51

cannot pay all of those claims. So you

26:53

need some kind of a mechanism to

26:55

divvy up those claims fairly and to basically

26:58

say like it's not just a rush to

27:00

the courthouse, and whoever gets their claim in

27:02

first gets paid out in full, and then

27:04

everyone who's at the end and there's no

27:06

company left anymore gets nothing. That's

27:09

not fair. And so the

27:11

fair thing to do over the

27:13

course of the jurisprudence of the past

27:15

few decades has been to use

27:17

the bankruptcy courts to create a much

27:20

more equitable distribution of claims.

27:22

And I think they've done a pretty good

27:24

job. Well, the thing is, though,

27:26

you're talking about, you know, there's a difference between

27:29

liabilities that the company currently has

27:31

and then theoretical possible liabilities. And

27:33

this is where I think, you

27:35

know, the case is a little

27:37

bit less straightforward, because Purdue

27:40

was arguing that, you know, their

27:42

theoretical liabilities, not what they've already been

27:45

sued for, what they already owe, were

27:47

going to be so big that they should be

27:49

allowed to use bankruptcy to

27:51

shield them from liability. But

27:54

if that's, you know, if you only

27:56

need to have theoretical liabilities or possible

27:59

additional. abilities to qualify

28:01

for bankruptcy, I think that goes against the

28:04

intention of law too. Then

28:06

you wind up with companies just running to

28:08

the bankruptcy court instead of paying victims and

28:12

making things right. They are preemptively going

28:15

to the bankruptcy court to hide out,

28:18

basically, and save

28:20

their asses. You see, this is

28:22

something which I feel is over-egged

28:24

a little bit. Filing

28:27

for bankruptcy is not a

28:29

clever little Texas

28:32

two-step shuffle

28:34

that cunning companies do

28:37

to save money. Filing for

28:39

bankruptcy is a really

28:42

big step that no company particularly wants to

28:44

do and only does it when it feels

28:46

it has no other option.

28:48

The first thing you have to know about companies

28:52

filing for bankruptcy is that 99 times

28:54

out of 100, all

28:57

of the shareholders in that company are wiped out. They

28:59

all get zero. They are the

29:02

first people to lose all of their money. Companies

29:07

are run by their shareholders. The boards

29:09

of directors are elected by the shareholders.

29:11

The chief executive reports to the shareholders

29:13

and is tasked with maximizing shareholder value.

29:15

If this idea that the

29:19

company is just protecting itself and being

29:21

selfish by declaring bankruptcy and wiping out

29:23

its own shareholders, it's like, well, that's

29:27

a good indication that they're taking

29:29

this really seriously. Even

29:32

so, in looking at Purdue, what

29:34

do we make of the Sackler

29:36

family? They themselves have been filed

29:38

for bankruptcy. They thought they could

29:40

use the Purdue

29:42

bankruptcy to shield themselves from

29:45

liability. As far as I

29:48

know, and correct me if I'm wrong, and hold on to

29:51

quite a lot of money. Correct. The

29:53

Sackler family is a

29:56

super interesting case. This is a hard case. And

30:01

one of the reasons why the

30:03

court split in an unpredictable way,

30:06

and is also not a great

30:09

case to be setting a major precedent,

30:11

to be honest, if you're the Supreme

30:13

Court. What happened with the Sacklers is

30:15

that their shareholding in Purdue did go

30:17

to zero. Purdue did file for bankruptcy,

30:20

and the equity holders, the shareholders,

30:22

the Sacklers were zeroed out. But

30:25

before Purdue filed for

30:27

bankruptcy, it paid like

30:29

$11 billion of dividends

30:33

to the Sackler family. So now the Sackler

30:35

family is plenty rich. Even if

30:37

its shares in Purdue are worth zero,

30:39

they have $11 billion of cash sitting

30:41

in their bank account, right? And

30:44

so what the opioid

30:47

victims are quite reasonably saying is,

30:50

you wound up dividending out a whole

30:53

bunch of profits to the Sacklers when

30:55

in fact, that money

30:57

rightfully belonged to us because we are victims

30:59

and we have more claim on that money

31:01

than the Sacklers do. So they want to

31:03

be able to sue the Sacklers for a

31:05

bunch of that $11 billion. And

31:10

for that reason, you're absolutely right. The Sacklers

31:12

were like, well, how about we basically give

31:15

you back half of the money, or

31:17

give back $6 billion. And

31:21

you can use that as

31:23

the vast majority of the pool of money that

31:25

would then be used to pay out. But in

31:28

return, you give us the immunity and allow us

31:30

to sit on the other $5 billion and be

31:33

dynastically wealthy for the rest of our lives. And

31:35

you can see how that leaves a bad taste

31:37

in the mouth of a bunch of people. But

31:40

yeah, the alternative is that the

31:42

Sacklers put in nothing. They

31:45

open themselves up to future

31:47

litigation. But so far, they

31:50

haven't lost a case as far as I know. Like

31:53

so far, no one has found the

31:55

Sacklers personally liable for any opioid

31:58

victims. I might be wrong about that. But

32:01

even if they have, they have

32:03

more money than the victims do. It's hard

32:05

to create a class action against them. I'm

32:07

sure the sacraments would love to just put

32:09

this behind them at a cost

32:12

of $6 billion, but they certainly

32:14

don't want to live

32:16

in a world where they pay $6 billion into

32:19

a big settlement fund and also are

32:21

liable for the rest of their lives.

32:23

There's no reason for them to do

32:26

that. Well, now that's the world they

32:28

are potentially faced with. Now they're open

32:30

to lawsuits. Yeah. So now they're open

32:32

to lawsuits, but they have $11 billion

32:35

to fight those lawsuits. Well,

32:38

another factor is that a lot

32:40

of the plaintiffs are actually governments

32:42

that are suing Purdue. So they

32:44

object on the basis that that's

32:46

different from an individual suing Purdue,

32:49

where they don't believe that the Sackler's

32:51

then should be shielded from liability if

32:54

the plaintiff is the government. So the

32:56

states are also, several of

32:58

the states are suing Purdue. But

33:00

no, as I understood it,

33:03

the states were overwhelmingly on the

33:05

side of the plaintiffs here

33:07

and it was the states who wanted this

33:09

settlement. Yeah, they were part of it. And

33:12

the Supreme Court basically went along to the states and

33:14

all of those 48 attorney generals or

33:16

whatever it is and said, well, we know you

33:19

want this, but fuck off. You could kind of

33:21

see both sides of it, why you would want

33:23

it to happen and for victims to get some

33:25

money and to put this in

33:27

the rear view. And at least like we have

33:29

a concrete agreement, half the Sackler's

33:32

money, et cetera. And then you

33:34

could see it from the other side where

33:36

it doesn't seem fair that this family gets

33:38

to hang on and be dynastically wealthy.

33:41

And there are these victims that haven't

33:43

come forward yet. They've

33:45

done so much harm. It doesn't seem fair. The

33:48

victims who haven't come forward yet are also

33:50

covered in this settlement. Not all of the

33:52

$6 billion gets paid out

33:54

to existing claimants. There is money left over

33:56

for future claim. But if you wonder if

33:58

it's like the same. thing with the asbestos

34:01

where the fund runs out of money. By

34:03

definition, the fund will run out of money. We

34:05

know there isn't enough money to go around. That

34:08

is why there's a bankruptcy case in the first

34:10

place. If it doesn't run out

34:12

of money, then that's stupid because you just have money sitting

34:14

in a fund in perpetuity. More of that sweet, sweet, Sackler

34:16

money. But can

34:18

we at least agree that this is a

34:21

gnarly enough case, and a

34:23

weirdly unique enough case, that it's a

34:25

bad case to use to set a

34:27

broad precedent about the power of bankruptcy

34:29

courts? I think bankruptcy courts in general

34:32

have shown that they are quite

34:34

wise when it comes to divvying

34:37

up a set of assets.

34:39

And they've done a quite good job of

34:41

it. And what the Supreme Court has done

34:43

here is basically tied one hand behind their

34:45

backs and made it much harder for them

34:48

to do their jobs. This

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38:11

can move on to the stock market because

38:13

now everyone's business friendly the stock market is

38:15

hitting record highs yay this is good right

38:18

one interesting thing i've been.

38:21

Rating about is that the thing that

38:23

has been driving the stock market to

38:26

these record highs and

38:28

the reason why the american stock market

38:30

in particular has been outperforming virtually every

38:32

other stock market in the world is

38:34

this record mega caps and mega caps

38:36

is not really a word if you

38:38

use a girl because you didn't have

38:41

a whole class of companies that worth

38:43

trillions of dollars but now you do

38:45

you have three companies that are worth

38:48

three trillion dollars which i have apple

38:50

and video and microsoft you

38:52

have. Amazon just became

38:54

worth two trillion dollars google is

38:56

in that kind of ballpark as

38:59

well and you get

39:01

these massive technology companies net

39:03

all technology companies. With

39:05

these trillion dollar market caps and

39:07

normally in the history of capitalism

39:10

when you become inconceivably enormous like

39:12

that that means you start growing

39:14

more slowly. You know like

39:16

big things grow slowly small things grow

39:19

fast it's like babies you

39:21

know but it turns out that.

39:24

In corporate america right now is the

39:26

other way around these astonishing growth is

39:28

being seen in companies

39:30

like. Microsoft and video and

39:33

not so much in the young

39:35

baby mammals who are just starting

39:37

out and so. There

39:40

is this very sort of top heavy stock market

39:42

we have right now and i don't think there's

39:44

consensus on whether that's good or bad and he

39:46

thinks it's bad right. I mean it

39:49

just in a gut at a gut level i feel

39:52

yes that it might be bad in part

39:54

because so many fewer. Companies

39:57

go public now it seems like

39:59

maybe. just like

40:01

the political sector, the stock

40:03

market is stagnant, dominated by

40:05

these big elephants, and there's

40:07

no young babies coming

40:10

in to grow, and that might

40:12

not be good for growth and

40:14

dynamism. Except I feel like Nvidia

40:16

is a really good count, for

40:19

example, to that. It grew

40:21

into an elephant, and three,

40:23

four years ago, it was not an

40:25

elephant. I also think that in the

40:28

market, sometimes we use potential growth by

40:31

how much these companies are really putting

40:33

into R&D, or cutting-edge technologies, and I

40:35

think the AI hype is

40:37

part of what's driving it. It

40:39

makes a large company like Microsoft

40:42

seem like it has the dynamics

40:44

of a smaller startup. Yeah.

40:46

In AI in particular, the

40:49

amount of growth, the

40:52

capital cost of investing in

40:54

AI is absolutely enormous, which

40:56

is why when Elon

40:58

Musk starts up his own in-house AI company,

41:00

he raises $6 billion for it, because

41:03

that's how much it costs to start up

41:05

an AI company these days. That actually goes

41:07

to my point, because it's like usually when

41:09

you have a new technology, you have a

41:12

lot of new startups and companies and a

41:14

lot of dynamism. I don't know why I

41:16

keep using that word, dynamism, of the startups

41:18

and the new companies, and they go public,

41:20

and it's like, we, it's a whole new

41:23

thing, it's very exciting, there's all kinds of

41:25

growth, but with AI, it's just like these

41:27

big honking elephant companies. Yeah,

41:29

they're doing something new and it feels

41:32

fresh, but it's still like the old

41:34

guard, just like gobbling

41:37

up the startups and whatnot. But

41:39

who's the avatar of AI? It's

41:42

Sam Altman who has this startup

41:44

called OpenAI. It's

41:46

heavily backed by this old

41:48

company called Microsoft. It is

41:51

a startup, but it's not like the kind of startup

41:53

that, we once saw

41:55

back in the 90s. That being developed

41:57

in a garage somewhere. Yeah. I

42:00

can see the concern, but

42:02

broadly speaking, I think that

42:05

I'm quite sanguine about the rise in

42:07

concentration in the stock market for a

42:09

couple of reasons. The

42:11

first is that, in

42:14

video to one side, all of these other companies

42:16

that are being sort of re-rated

42:19

and adding trillions of dollars to their market

42:21

cap on the basis of AI are not

42:24

adding that market cap because AI

42:26

has made them more profitable. They're adding

42:29

that market cap because something's

42:31

on something, AI hype something. They're

42:34

spending a lot of money on

42:37

AI, and all of the money

42:39

that they're spending is going to

42:41

help companies broadly. It's going to

42:44

improve productivity broadly, if

42:46

it works. Consensus

42:49

in the stock market seems to be that it will work. I

42:53

just don't believe that these

42:55

big companies like Apple

42:57

and Amazon and Google

42:59

and Microsoft have the

43:02

ability to really collect rents on

43:04

AI to the degree that they

43:06

wind up getting most of the

43:08

benefit from it. If

43:11

you think of the benefit

43:13

that corporate America, say, got

43:16

from Microsoft Windows

43:18

or Microsoft Office, that's three,

43:21

four, five orders of magnitude

43:23

greater than the amount that

43:26

Microsoft could charge for those

43:28

products. AI is similar.

43:32

If this works, then sure, they

43:34

will get some profits from it,

43:36

but corporate America broadly

43:39

will see the

43:42

benefits. This

43:44

is why I think that we're just in

43:47

stage one here of the stock

43:49

market AI boom, which is the tech stocks

43:51

get the first lift. Then,

43:54

if and when AI turns out

43:56

to be something really real, then

43:59

it starts to lifting up everyone else

44:01

and everyone else becomes more productive and

44:03

everyone else's stocks will rise and

44:05

then we just started seeing

44:08

that with Apple. Apple is

44:10

not really an AI company, but

44:12

it announced a couple of weeks ago that it was going

44:14

to start putting AI stuff into its iPhones.

44:17

And it got a $300 billion boost in

44:20

the stock market as a result. If

44:22

Apple, obviously Apple will be one of the first

44:25

companies to do it because it's a tech company,

44:27

but eventually Nike will do it and

44:29

Walmart will do it. Target

44:31

just came out and said, we're going to

44:34

AI this and AI that. And for the

44:36

time being, it's hard to separate the hype,

44:38

but eventually when it starts showing up on

44:40

the bottom line, then

44:42

the concentration of the

44:44

stock market will decline because everyone

44:47

else will go up, assuming that

44:49

this AI hype actually turns out

44:51

to be based in reality. I

44:54

guess on the flip side of your

44:56

Felix optimism is if it is in

44:58

fact just hype, then the

45:00

bottom falls out and these

45:03

companies lead the

45:05

stock market down. Correct.

45:08

If the AI bubble burst and it

45:10

turns out to be a nothing burger,

45:13

then Microsoft

45:16

goes down in value, OpenAI goes

45:18

down in value, Nvidia goes down

45:20

in value, and you get the

45:23

mega caps will go from being worth $3

45:25

trillion to being worth $1 trillion. And

45:29

that is fine. That

45:31

is the kind of losses

45:33

that capitalism is good at

45:35

taking. Those are high

45:37

risk investments. We saw actually this

45:39

is a really good example. Just

45:42

this week, just over the past seven

45:44

days or so, Nvidia lost $300 or

45:46

$400 billion of market cap. And

45:51

it's a volatile stock. This happens. It's no big

45:53

deal, but that's the whole point. It's no big

45:56

deal. And as it was losing all of that

45:58

valuation, the stock market was going up. up. It

46:00

didn't actually seem to visibly hurt the stock market

46:02

at all. I guess when

46:04

I hear the word like concentration

46:06

company, corporate concentration, I am newly

46:09

trained courtesy of all the

46:12

people and good thinkers on antitrust

46:14

now to think about all the

46:16

ways in which corporate concentration sector

46:18

concentration is damaging to the economy.

46:20

But this is a reminder

46:22

once again, that the stock market is

46:24

not the economy. And I don't know

46:26

if I agree with you for sure.

46:29

Maybe concentration isn't a bad

46:31

thing in this case. Because it's

46:33

really just concentration of market

46:35

cap rather than concentration of profits or

46:37

concentration of employees or con it's not

46:39

like they're dominating the economy. They're just

46:42

well dominating the market. Yes, right. And

46:44

like you said, it could once everyone

46:46

else catches up, it's just like they

46:48

have a head start. And then once

46:50

everyone else gets on that ground too,

46:52

then it maybe evaporates.

46:55

A rising stonk lifts all boats.

46:57

Should we have a numbers round? Let's do it. Why

47:00

not? Let's do it. Elizabeth, you have a number? I

47:03

do. My number is 29 and that's

47:05

percent. And that's the percentage

47:07

of the population that has something called

47:09

money dysmorphia, where you

47:11

become irrationally terrified of financial

47:14

insecurity or you think you're

47:17

far more insecure than you are. And

47:19

that number is the

47:21

highest for Gen Zers, 43%

47:23

of whom have money dysmorphia.

47:26

And the older generations have far less of it, 25% of

47:29

Gen Xers have it, 14% of people 59 and over have

47:31

it. I'm

47:35

not going to ask how they're measuring

47:37

it, but this so totally jibes with

47:39

a million surveys that I've

47:41

been receiving over the past few

47:44

weeks, showing like different

47:46

attitudes to money. Gen Z overwhelmingly

47:49

comes across as like the most

47:51

financially sophisticated generation in the history

47:53

of the world. And you

47:55

can call it dysmorphia, but like if

47:57

you're a financial services company, that managed

47:59

to be a big part of the

48:01

world. manifests as sophistication, weirdly. It manifests

48:03

as a high savings rate, high

48:06

propensity to hire a financial advisor, a

48:09

relatively high confidence that you're going to have a

48:11

safe retirement, a relatively high level

48:13

of financial literacy, and so on and

48:16

so forth. All of these things Gen

48:18

Z is massively outperforming both the Gen

48:20

Xs and the millennials. Maybe

48:23

it's because they're driven by

48:25

this deep-seated insecurity and fear.

48:28

Yeah, maybe it rhymes. Yeah,

48:31

definitely deep-seated insecurity and fear. There's

48:33

not that thing of when it,

48:36

we're all Gen X here, right? When

48:39

I was growing up, making money was

48:41

like, you

48:43

were going to be an artist. You

48:46

weren't going to sell out. No

48:48

one talks about stuff like that anymore. It's like, God

48:51

bless you if you could sell out. Gen Z is

48:53

just waiting to sell out. They

48:55

want to make money. There's no ethic

48:57

or ethos of living for your art

48:59

or anything like that. I

49:02

live in Manhattan and I'm surrounded by

49:04

Gen Z investment bankers and it's mildly

49:07

depressing. Because you're Gen X and you

49:09

refuse to sell out. Well,

49:16

I'm Gen X and I feel a

49:18

little bit guilty when I sell out. Let's put it that

49:20

way. My number is 7,500,

49:25

which is the number of dollars

49:27

that Ferrari owners

49:30

have the option of paying to

49:32

Ferrari every year just as a

49:34

subscription. If you

49:36

buy a Ferrari and then you pay

49:38

Ferrari an extra $7,500 a

49:41

year, then Ferrari will

49:44

replace your battery in your car

49:46

every eight years, after eight years

49:48

and after 16 years. If

49:51

your battery runs down or needs

49:53

replacement before that, then they'll replace

49:55

it before that. It's

49:57

basically this thing that Ferrari

49:59

has. addressing the big

50:01

worry that people have about EVs which

50:03

is like what happens when the battery

50:05

runs out after a certain number

50:08

of recharges you know it stops being as powerful

50:10

anymore you know. I think they're supposed to last

50:12

12 years like so if you have a Tesla

50:14

it's it's gonna die at some point. How

50:17

long do people hold on to their Ferraris?

50:19

No but that's the whole point right if

50:21

you if you have a 50 year old

50:23

Ferrari that Ferrari is probably worth 20 million

50:25

dollars now the idea is that these things

50:27

are assets and people buy them partly because

50:29

they expect to expect them to rise in

50:31

value over many decades but if you

50:33

have a 50 year old for our EV Ferrari

50:36

that you know the battery died 35

50:38

years ago then that is worthless so it's

50:41

kind of it makes sense to pay them

50:43

money to replace the battery. Great

50:45

income stream for the company. And it's a

50:47

nice reliable income stream for the company. Exactly.

50:49

Emily what's your number? My

50:51

number is 2.7 that's

50:54

hours that is the

50:56

amount of time Americans age 15

50:58

and overspend watching television every day

51:01

2.7 hours. Is that

51:03

an all-time low? Well

51:05

I'm not sure if it's an all-time

51:07

low it's about half the time Americans

51:09

spend on leisure half leisure time per

51:11

day and actually yes people

51:14

are less likely now the Labor Department

51:16

said in their American Time Use Survey

51:18

release they're less likely to spend time

51:21

watching TV now on an average day

51:23

than they were 10 years ago

51:25

but it's not a huge difference it was 79% 10

51:27

years ago and now

51:29

it's 74%. But 10 years ago

51:31

they were probably watching like five hours a day

51:33

and now it's 2.9 hours a day it's just

51:35

like they're still watching they're just watching the lights.

51:37

Yeah but it's not like they're going

51:39

to video games things like that it's not. They're

51:42

still looking at screens it's just

51:44

different screens. Different screens. Yeah I

51:46

hope you guys are

51:49

not looking at screens right now this

51:51

is the wonders of podcasts as you

51:53

get to look out at nature or

51:56

the road ahead or something that isn't a

51:58

screen but even if you are thank you

52:00

for listening stay tuned if you're a Slate

52:02

Plus subscriber because we're going to talk about

52:04

potatoes and you know you want to learn

52:06

about potatoes. Otherwise thanks to

52:08

Jared Downing and Chenaroff for producing

52:10

and we'll be back next week

52:12

with more Slate money.