Transcripts For CSPAN2 Richard Posner 20161029

Professor of international law, presenting this program, please join me in welcoming them. [applause] thank you. Without further ado i thought i would plunge into a question for the judge and the biographer. Richard posner, when you were the age of some of the people in this room you were fabulous yates scholar interested in literature. What made you decide to go to law school . Law school was always the default graduate choice. I give some thought to graduate school, decided, not for me. I dont think i can stay. Harvard law school has a formative impression on you, i suppose . It launched your trajectory in many ways. Tell us about the academic experience. It is mixed, but they did something clever. They stacked their best teachers the first year in law school. Very nice. Got a good start. Second and third year, like all the professors i realized thinking about this, i skipped my last year of high school, only 16 when i went to yale college and only 20 when i went to law school, younger than the other kids. I was bratty or. If i didnt like a professor i couldnt conceal that which i like most of the professors but not all of them. My particular at harvard was the dean. A powerful teacher. He taught tax. When i was a student, i was unprepared and unresponsive. Apparently i scowled at him a lot. My worst encounter was hilarious. This was i became president of harvard lawyers, every year the president would meet with some stuffy old boston financier who managed the trust, whatever trust, with griswold, so at the meeting i attended, griswold was very upset. Why was he upset, he said there was a refrigerator in the building reserved for the faculty and it contains tarts. Some of the tarts were missing. How many tarts were missing . He thinks there might have been access. I dont think i could keep a straight face. He really disliked me a lot which he disliked me a lot. To the extent, my first teaching job was at stanford. When i was under consideration they sent a letter, what do you think of Richard Posner . Griswold said you shouldnt. It is terrible. Stanford people didnt care. A real sourpuss. Later he became friendly. I think in retrospect about two years younger, in college and law school, made me somewhat more difficult than other students. Still glad i got out and began working, most of this, 20 or 30 of them. The director, a profound intellectual influence on you. The change he was a brilliant economist at the university of chicago and moved to california and stanford, i knew the name, i saw his name on an office door when i introduced myself and we became friends. I earned a lot. What brought you back here . Why did you decide to leave this . I got a very good offer him the dean, full professorship. A professor at stanford. More important was apart from aaron, just by chance, a quarter of my year at stanford, we became friends, in the fall of that year, i started 68, august or something. That was of a year when nixon was elected, and nixon appointed before the election, a committee that would advise nixon about antitrust laws and orange put me on a committee and i met a distinguished economist on the committee along with some of the faculty. So getting to know the chicago economist made the move from stanford to chicago attractive. Spent a year in california. Had a feel for the state. I enjoyed it. William domnarski, you have known Richard Posner for many years. When did you decide to write a biography . The change i read the biography of Henry Friendly which came out in 2012. It was a good book, a lot of research but he didnt have access to people who knew friendly when he was growing up because he died in 1986 so there was a whole generation who had passed on. He made the best of it. I thought what people wanted to know about was what they were like when they were younger and has they developed. I approached dick and asked cooperation meant two or three things. Record some conversation, opening his archive to me. People called up and if it was okay to talk to this guy he would say yes. He did all the time so i was able as a result to talk to all sorts of people, from fifth grade on. It was exactly what i hoped it would be in the sense of getting information about a great figure as a young person going to law school, practicing and teaching and writing and judging and i like to think the personality that i write about comes off the page because i had such good fortune with some of the sources i had. Mostly the people i mentioned when he was younger. I got involved in the project, i said to dick i didnt want to have happen to him what happened to Henry Friendly. A whole generation of people with information to contribute not contributing. What was the Biggest Surprise . This might surprise you, how funny dick is. A lot of personal correspondence and some of it is funny. Dick will sometimes, i dont want to say make a joke, something that is amusing. The sense of humor, able to find in the letters was sharper, sometimes it is laugh out loud funny blues not that i thought dick wasnt funny before but the extent of the funniest. Any big challenges . A mountain of paperwork in this area. And 3100 by now 3300. Not behind. But then more books and articles, 500 articles, 50 books. I felt an obligation to Read Everything so i did. Taking a long time. The obstacle was the judicial biography, tension between readers wanting to know personal information, subject to come alive and talking about law which can be rather drill, and the biography is not a strong genre. We had a couple sources but for the most part a very small audience, half a dozen law professors in a particular subject and i want to stay away that. To dominate the book, not so much opinions but personality, clattering away at the typewriter. The obstacle was the genre itself out. You read a number of judicial biographies. Any thoughts what makes a good judicial biography . Mainly whether the person who was written about was interesting. I havent read too many. I like the biography. There is an endless biography of cardozo which i dont think i Read Everything. It covers everything, hundreds of pages long. It took the author 30 years or something. Similarly, the biography of bernard hamm which was kind of a flop. Most of what he wrote, he wrote about two or three constitutional opinions. The biographer was a constitutional lawyer. For example leonard am wrote very influential opinions and copyright law and delegated the writing of the chapter on his contributions to copyright law through a student at stanford who is now a professor at chicago law school. That was a questionable biography. There are several biographies about John Marshall and Oliver Wendell holmes. There was supposed to be a biography of others that never got written, robert jackson. This was unusual, biography of a sitting judge. Sitting, standing and beyond. They are all dead, arent they . I was wondering, in your judging, pushing the boundary relative to other judges in terms of being a public intellectual, your view of the role of the judge taking facts and so on, the question in terms of the biography is it possible to know too much about a judge to be a judge . Some things are offlimits, a biographer should be limited is what they are asking about. What kind of limitation . If the public knowing about it. Some criticism about judges serving republican intellectual stemming outside the role and compromise neutrality, you dont agree much with that line of thought, the majesty of the judge. I am writing a book now, almost finished, strength and weakness in the american legal system, entirely about the judiciary, i thought that would sound too esoteric. I have 10 pages, 300 pages on the weakness. I am very critical. I think the Supreme Court is awful. It has reached a real nadir. Probably only a couple justices are qualified, they are okay. Politicians dont care about equality of judges. They figure they are politicians. In the case of the Supreme Court what has been a tremendous boon to the politicians is federal judges have law clerks, supreme justices, they have really good law clerks, really smart so the politicians stay here, playing this person because he or she, special part of the country, liberal, conservative, this person not particularly bright and doesnt have much experience, never been in a trial court but all these brilliant law clerks so their opinions will be all right. Dont have to worry about quality. It is very mysterious and there are more. If we were team dan demand judges right opinions that would be a good thing . It would be great. Half of them would resign immediately. In terms of writing about someone with strong opinions about opinions, did it change your view about judges and judges . It deepened my conviction that judges should write their own opinions. If it didnt redesign, they would write drastically shorter which would be a good thing and less likely to be a good thing. The truth is when you read a lot of judicial opinions you get a sense of what interests them. One of the things that for me, how engaged and how much fun he is having in writing so i walk away from the project thinking circuit judges, except three or four depriving themselves of engaging with a law but also depriving us we learn, and say this is what we are hired to do so i struggle not just with the idea of having someone elses name go on, not happy the authors name goes on the opinion. This idea of how do we know this opinion is you . And these opinions at decks level are creating law, only in the rarest of cases to confirm or shape in law, so the idea people in this position of great power i delegating to law clerks fresh out of law school, fresh out of law school, sometimes it troubles me, what has been happening the last 35 years is circuit judges with a few exceptions have gone on to become Supreme Court justices which is to say, a circuit justice judge and politicians like that, a paper trail, usually doesnt have anything in it which defeats the whole purpose of having hearings to determine who that person is. The thing that allows us as readers to know what a person is or who a person is, what they write, in the dark almost completely when it comes to who they are, what they think and more important how they plan to do their jobs. It is not a scandal but something that should be looked at more critically. You think we should relax constraints on clerk confidentiality, great breach of norms and ones own role . The only thing i dont impose confidentiality, the only thing, there is a rule, a sensible rule, you are not supposed to discuss the case with someone outside the judiciary, once it is decided as far as i am concerned they can say anything they want, repeat critical colleagues, that is very bad, very badly managed, this business, subscribe to this slogan, anything that goes on in chambers. Chambers for judges so we have office weeks, chambers, they are called chambers from the french, it goes back to the 14th century or something when there was a big french influence so the term has stuck. I dont like that old stuff. That is the slogan. Tell their law clerks they are sworn to secrecy, everything that goes on in chambers stays in chambers, that is the cliche. Many things, one of the problems, the court has a chief judge. The chief justice, all the other chief judges are appointed on the basis of seniority. When there is a vacancy the chief judge leaves for the seven year term runs out, the successor is whoever is the senior judge nationally semi retired, so you are playing someone for 7 years without any consideration of qualification, as a result the chief judges dont do it for the most part, didnt have a chief judge, forget about all the confidentiality stuff, a judge, a friend of mine, judge in denver just said to me he requires on arrival to read George Orwells famous essay on the english language which is a great introduction to how to write, but that is going to have law clerks doing any writing, judges dont do it, chief judges dont try to impose progressive improvements on their flock of support of judges. Richard posner has a literary mind. It is a sensibility, i think, that merges understanding of the real world, Economic Analysis, a sensibility that emotions, human emotions, human drama, every now and then you have one of these eureka opinions, records to shakespeare, completely and utterlys, how else could it be described, so it is an awareness of people in different ways, how people live in the real world, the fictional world has so much real to it but also the empathetic, philosophical, referring to this, this is true. To my right, shakespeare living in him. And after saying them, something comes up, it connects so we have a literary mind recognizing the grander description that goes with literature, confused into dicks opinion and makes for something, but as great a writer as holmes was he was not interested in literary and they have some written critically about some, judges who have literary illusions, and courses through you. Is why they come so seemingly easily, so effective. Of nothing else, i talk about how often examples of dick using literary illusions to shakespeare. When you see the example i describe you say yes, that is it exactly, that is what i mean by literary and also not just the dick is a good writer, he is certainly that. It also comes through. You feel shakespearean . Can you imagine yourself having done Something Different, what you would have done the first thing . Not being a judge . Alternative career. Law career. I did major in english in college and went deeply into it. My mother had been a High School English teacher in new york, very much imbued with literature, pushing me hard. She read me the odyssey. And the addition she had had a picture of the cyclops with one eye on his 4 head i was terrified of that picture and forced my mother to rip it out so she was forcefeeding me literature and culture generally. It was 1944. I was 5 years old. She took me to henry v, it is a wonderful movie. That always stuck in my mind. In the first grade i happened to be sick when the kids were being taught to read so she taught me to read in a week or something. Throughout my youth she was giving me a lot of help and steering me to literary interest. Which i always retained. Why dont we stop and take some questions from the audience for the biographer or the biography and we can open it up. Come to the microphone to ask your question. Have a question for the judge. Your work in law and economics is one of the most important contributions to modern legal thinking. How do you see behavioral economics in that interplay . You mean people pushed by their psychology rather than constant efforts. There is a lot to that. I had that issue arise, anyone who argued cases, never mentioned that. I read some of them and there is a lot of merit to it. If it doesnt come up in these cases, is it still as big as it was twee 10 years ago . Any talks about it seems like it is gaining traction by economic marvels incorporating more of that psychology. The economy still going strong . Yes it is. Very aggressive. I lost touch to a certain extent with Economic Analysis, it doesnt come up much in my case. I thought when i was appointed in 1981 i had a lot of antitrust, that had been my specialty but then antitrust hasnt dried up so havent had many antitrust cases. We have a lot of commercial cases, financial cases they dont usually depend on the principles economists have developed, specific rules, so i havent done much. Thank you. Is that close enough . I bought almost all of your books and read your blog. You told us you wrote 300 opinions. You are very hardworking. I one to know how you manage your time, how you manage your self, working in this university, procrastination. I only do a little teaching, i feel bad about losing contact with law school, it expanded and at the law school, he and i have a staff of research assistants, leader of the staff and that is very helpful, research, that is very part time and the rest of the time is mainly devoted to my judicial work. I have written, i have continued doing academic writing like this book i mentioned, strength and weakness, i work most of the time. What image when i read the book, type on the typewriter, still fast . I got my first typewriter when i was 13 so i taught myself to type. I have been typing furiously ever since. I am a good typist. When i was a fulltime teacher, i was in my office typing and a student, a person came into my office and said would you mind typing my resume so i typed his resume, i actually experimented recently with dragon, the dictation, you dictate it and it is converted into type, very protracted learning process, the machine keeps telling you repeat yourself and keep going on so that was painful. I was told when you dictate, maybe it changed, when you talk to dragon, you have to give it the punctuation and that is tedious. So i gave up dragon. I imagine there will be developments that will create a smooth connection between speech and printing. I gather you dont have problems with procrastination. I dont. One question mostly for the biographer. Did you note these events, persons or ideas that really influenced the line of thinking, mostly the idea that we wouldnt expect that . That is a good question. The answer is found in the acknowledgments of various books and articles. For the first two articles that grew in stanford. Very effusive acknowledgments, this idea, just writing it up, a very gracious thing, it indicates the depth of the connection. I was very fortunate to talk with someone who was able to listen to the director and dick talking when dick was at law school. The two of them next door, days on end talking about economics, stick at his desk with a typewriter clattering away, so i thought of it as a eureka moment where this diminished dick had an interest in Economic Analysis before going to stanford but meeting the director, based on what i have been able to figure out was a significant development. George stigler was an important figure. When you trace the acknowledgments, i do this in my book, in the acknowledgments, the connections between dick and the director stigler and some others, gary becker being an important one as well. That is one way, dick is always very gracious, i show up three or four times in the acknowledgments and read something. So these acknowledgments said things like without you i couldnt have written this, powerful evidence the person being acknowledged was an important influence. Richard posner, in your last book you took aim at the judiciary and the academy and in your upcoming book taking further aim at the judiciary but there remains law schools. You havent spoken much about law school. Im curious what you think law schools could be doing better and speak to maybe the law students including this one and advise us, spending time at law school, thank you. The law schools have a lot of problems. One, the tendency to hire, tom can correct me on this, my impression is there is a tendency to hire people. No practical experience in law, some have phds and economics, which is already late. And then after graduating law school, wanting to be professors having this background and they didnt want to become professors of english or something or history because they knew jobs were few. So i think as a result you have a lot of law professors who really dont have and contact the legal system, practice of law. That i think is a efficiency. You see that with judges also. Now, if you look at the Supreme Court, for example, of their nine judges, im bringing scalia back from the dead so i can have the standard number of justices, of those nine, one had been in a trial courtroom. Now its ridiculous to have an appellate judge without experience. I had argued cases but never been a trial judge, certainly. And the senior, one of the older judges said to me, since you dont have since youve never been a trial judge you should volunteer to conduct trials in the District Courts in the first circuit. So i do that. Ive been doing trials for the last 35 years. I have recently did a criminal trial. I dont know why it was delayed so long. Real eyeopeners. A lot of these trials have been jury trials and most of them pretrial, settlement, everything the district judges do, much reduced frequency. I think all appellate junls who havent been trial judges should be required to conduct trials because if youve never conducted a trial, you really dont understand a lot about the process. Youve never watched a jury and you havent seen witnesses, you havent understood how difficult it is to tell whether a witness is telling the truth. You know, theres this myth that through crossexamination and the jury to learn whether someone telling the truth. And must be line, other people, absolutely no support for proposition in and from what are called demeanor cues, is the person nervous, squeaky, doesnt look the questioner and look them in the face and it doesnt mean anything at ul. Specially if youre a judge. So great means that credibility is determined by a jury on the basis of, you know, the adversary presentation. Trying a case. So he tried a case and he almost the last time. Several of my judges, my colleagues, appellate judges havent been in courtrooms as trial lawyers, thats something. Many have never been in trial court. Hi, my question is for judge bosner, i dont know that many from the american judiciary. From where . Pakistan. Who do you think bridge justice is representative or whether american judiciary should be about and as a law student which junl should you recommend we read the opinions of . The only two judges are ginsburg and briar. And sometimes sometimes quite i lock eloquent. The others i wouldnt waste my time. [laughter] i have to tell i read recently the most tedious opinion i have ever read. I dont know why i read the whole thing but there was this texas Abortion Case and i dont know if it was affirming or reverse, whatever it was, he wanted to uphold, what texas had done, we had that in wisconsin. So we had them done and they did two things, the first was to say that an an Abortion Clinic had to be within 30 miles of a hospital so that in an event of an emergency during the abortion the woman could be quickly transported to a hospital. Wait, i left out something important. It had to be within 30 minutes of a hospital in which the abortion doctor had visiting privileges and he could admit a patient and the notion was the abortions would not be granted visiting privileges by the hospitals because the hospital doesnt want to be associated with abortionists and also most of the abortion doctors are not qualified for privilege because all they do is abortions. They dont do hospital work, emergency involving an abortion, what you do is you call 9 11, an balance will take her to the hospital, if he can get privileges. So texas had the same thing and worst, they required, i dont know, special vehicles, hospitals had to be i mean, the ambulances had to be equived. So Justice Scalia was hyperconservative. The only thing he said in the decent was that the case had either been dismissed on the base of race judacata because some of the plaintiffs attacking the texas law had filed a previous similar case which had been dismissed and youre not suppose to relitigate the identical case. And briar and his majority opinion discussed this and pointed there was some overlap. What he also said which he didnt say, that race judacata is this common law rule to trying to create litigation, which is fine, but its not part of the constitution or anything and this is an important issue and you want to get it settled, why would you fuss specially for 40 years. [laughter] i interrupted you. This would be the last question. So judge bosner given your feelings about some of the members of the judiciary and the opinions they write, what is the role should be playing in reaching decisions and what role should be playing as they reach decision . I have a very low opinion of precedent. What i dont like about the legal system is its so backward looking, constitution, original constitution ratified in 1788. Thats 228 years ago and smart people at the time like jefferson said, look, you cant you cant write a constitution thats going to be meaningful in the distant future. In fact, he thought just have a new constitution every 30 years and could that, of course, didnt sell, but a number of the people then said, yeah, its not you cant treat this as some sort of straight jacket because the world is going to change and that, in fact, has been the attitude of the Supreme Court. What the body of constitutional law today bares on an incidental resemblance to the text of the constitution and all of the amendments and so on and thats how it has to be. Thats fine, but, of course, the Supreme Court justices and the profession general is le reluctant to admit that, you have scalia was big on this, was supposed to decide cases according to what people thought in the 18th century, ridiculous and very little attention paid toyota and originalists. And its very similar, reluctant to overrule. They worry that people think, well, Supreme Court isnt very good because they decide these cases and ten years later they overrule them but of course the present issue, its a text, a judicial opinion and after a few years or many years its obsolete. So you ought to say, im not paying any attention to that anymore, but the Supreme Courts notion the Supreme Court justice, they feel under pressure, for one thing congress doesnt like the Supreme Court. The Supreme Court has a way of invalidating congressional legislation. Justices worry about congress and maybe they wont get raises if congress doesnt love them, so they want to create some sense of infallibility so the notion they decided a case a hundred years ago and theyre still following it makes it seem as if, well, the Supreme Court must be really great because it can side a case and a hundred years case later its still the law. And looking backwards is really thats the worst thing about the profession. They made such a fuss last year because it was the 800th anniversary of magnakarta about which people dont know anything. They think its the beginning of the jury, great charter of liberty, magnet karda was a very unpopular king of england, john, really bad, and the barons who were a higher tier of english arson to aris to they managed to agree that if a barron was prosecuted for anything, his guilty would be decided by a jury of his peers. It had to be other barons. After a few years, john, i think it was still genre pealed magnet karda and eventually restored, but its not really anything. I was invited to some kind of bar thing where people were talking about the magna carta and they were all salivating and it was so great, shows what a great system weve had. Weve had for hundred years. Forget magna carta. [laughter] let me close with the last question. Back to the personal, cats versus dogs, which is the best house pet . Well, i actually thats a very important issue and the only mistake in bills book is that he misnamed my cat. He called her dinah, dinah was the cat of ours, in fact, a famous cat because the new yorker ran an interview of me back in 2001 and they were very insistent that dinah, they want to have a photograph and they put a photograph of me holding dinah. They were insistent about that. I actually got some hate mail because not from the dog people, but dinah was very shy and she did not want to be photographed. And i got at least one letter from someone who said, looking at the picture, looking at the eyes of that cat, that cat was, you know, did not want to be held and photographed. They shouldnt have done that to your cat. [laughter] what i thought was hilarious is the fact that the new yorker has circulation of several hundred thousand. Several hundred thousand people are going to look at my cat. Dina was not able to capitalize on her celebrity and eventually, poor creature, died. Our current cat is named pexie. Pixie needless to say she read the book and she was bothered when she came to dina. [laughter] im a cat person. I admit it. Is it because youre antidog or something about cats . No, and weve had and my wife and i have had cats, i mean, have dogs. We had a dog, i had a dog when i was growing up. I think the cats well, okay, here is the big difference. The dogs are kind of servile, we had a norwegian and it was a formable dog and frown at our to go, i forgotten his name. Great name, fang. He sounded frightening but if you frowned at fang his lips would tremble because, you know, they tend to be servile toward people and cats the opposite. They dont wonderful cat, she reforwards as servants and treats us accordingly and i think its just a much more interesting relationship and you feel how it is to be servile to be a member of the lower class. Bossy and very definite and pixie likes to, when im typing most of the time, i have a mouse pad to the right of my laptop and i have a wireless mouse on it and pixie likes to come over and sit on the wireless mouse. That paralyzed me so if i try to reach in under the house she will scratch me. She enforces her decisions and and delightful and i love it. Well, the books are available, you can get kittens at your local shelter and join me in thinking both judge. Thank you. [applause] [inaudible conversations] here is a look at authors recently featured on book tv afterwords, our weekly author program, former Goldman Sachs Vice President julissa arce talked about her experience as an immigrant. Former state Department Official discussed leaked cables. Gary young will discuss investigation of gun violence in america and this weekend Colombia University law professor tim woo explains the way society has been affected by advertising, well, this is a great point. Is with as i said, people were scattered around the radio and it was able to outcompete the dinner conversation or other or even people playing music at home before radio was a background, muis nick the background, jazz or Classical Music quietly playing. This was Something Different and this suggested nbc and later cbs said we have the ad yents in their home listening and opening the portal of judgment to you. Perfect way to reach your customers. Fll the great triumph of u. S. And british breaking it quickly became apparent that code breaking and signals intelligence was going to be important source in the emerging cold war struggle. External security and made conventional espionage extremely difficult if not impossible. Even the most basic facts about the organization and the countrys economy and military was considered state secret under stalins regular im. The cia kept optimistically dropping agents behind the iron curtain and it would later be learned that virtually 100 of them were captured, shot or played back as doubled agents against the west. The only thing youre proving by parachuting agents into soviet control territory one u. S. Army official told the cia station is the law of gravity. [laughter] signals were the only plausible source that could detect military preparations within the soviet union that might signal nuclear attack. The huge challenge the u. S. Code brakers faced in exploiting the vital source was that in november 1948 the soviets abrutly instituted a sweeping coordinated change in all of the military code systems and it was such an Unprecedented Development that washington and london briefly fear that had this itself was an indication that soviets were about to launch a military attack on the west. The new soviet code systems proof far more challenging than anything the u. S. Had faced before and indeed, moe of the highlevel soviet codes would remain unbroken probably till 1979 when Super Computers and advanced Mathematical Research produced one one nsa paper around the time of the soviet invasion of afghanistan. Throughout the cold war at roughly 5year intervales, nsa brought outside panels of leading mathematical and experts to review the state of the russian problem and solutions and evaluations are almost nothing like a tail of whoa and pessimism. A panel headed by the Vice President concluded that, quote, no National Strategy should be based on the hope or expectation that should be able to read, the rest of the sentence redacted by nsa classification but it was pretty obvious it was referring to highlevel inscripted traffic. Searching through one million messages that have been cyberred trying to find any flaw that could be exploited and the project failure. Now whatever nsas successes or fill yours in breaking soviet codes one thing they did and im not saying at all was provide huge stimulus to the u. S. Computer industry. First high speed type, first computer workstation, the first desktop, highspeed modems were all built to meet nsa contracts and requirements and only made their way to the commercial market. You can watch this and other programs online at booktv. Org. Youre watching book tv. Book tv, television for serious readers. And this weekend youll see book tvs recent coverage of eighth annual boston book festival starting at 2 00 p. M. Eastern on saturday, watch author panels on the future industry or time illustrations and the Science Behind time travel. And on book tv after Words Program colombia law professor tim woo provides history of advertising in its current use. Also this weekend a look at the 30year relationship between eleanor roosevelt. Andrew scott cooper and the leadup to 1979 iranian revolution. And College Professors on their long friendship with the convicted murderer and former death row inmate. Thats just a few of the programs youll see on book tv this weekend. For a complete Television Schedule booktv. Org. Book tv, 48 hours of nonfiction books and authors, television for serious readers. For more than two decades has worked in pressing issues from violence against women to reproduct i have justice to economic security. She is also the former executive