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tv   Richard Posner  CSPAN  October 23, 2016 7:45pm-8:58pm EDT

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william has been a lawyer for 30 years and is the author of three previous books on federal judges as well as on the nature of practicing law and has a jd from the university connecticut school of law and english from california riverside. richard is the united states court of appeals for the seventh circuit and a senior lecturer at the university of chicago law school. tonight we are joined by tom ginsberg the purpose of international law at the wall schoolawschool that is graciousy presenting the program please join me in welcoming them now.
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[applause] without further ado i thought i would plunge into the question alternating between the judge and the biographer. when you were at the age of some of the people in this room as an undergraduate and the biography tells us you were a fabulous scholar interested in literatu literature, what made you decide to go to law school clinics debate co? >> it was always the default graduate choice for a college graduate and my father was a lawyer and i gave some thought to going to graduate school and decided it wasn't for me so i don't think that i could
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consider anything else. >> harvard law school seems to have a formative impression on you i suppose and launch your trajectory. can you tell us about the academic experience? >> it's mixed, but they did something clever. they stacked their best teachers into the first year of law school, so that was very clever, got a good start. the second and third years were not as interesting. i realized in thinking about this, i skipped my last year of high school so i was only 16 when i went to yale college and i was only 20 when i went to law school so i was younger than the other kids and i was bratty and
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if i didn't like the professor, i really couldn't conceal that. i liked most professors but not all of them. my particular was dean griswold, terrible teacher taught tax. when i was a student caught unprepared and unresponsive, apparently i scowled at him a lot. my worst encounter -- this is hilarious because it is right out of alice in wonderland. i became the president of the harvard law review and every year the president would meet with some stuffy, old boston financiers or something who
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managed the law reviews trust, whatever it was. so at the meeting i attended, griswold was very upset. why was he upset? he decided there wa said that ta refrigerator in the building reserved for the faculty that contained targets and he said some of them were missing. he said some were missing and he thinks the members of the wall review might have had access to the refrigerator. i don't think i could keep a straight face. he really dislikes me a lot.
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to the extent the first teaching job was at stanford and when i was under consideration they send a letter saying he's going to harvard law school, what do you think of poster and griswold said you shouldn't hire him. [laughter] terrible. the people didn't care. maybe they knew griswold was a real sourpuss. later he became friendlier to me. but i do think in retrospect being about two years younger than the other students that
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made me somewhat more difficult for the latest and. i'm still glad that i got out and began working at an earlier age. >> and it's at stanford that you need them. >> at the university of chicago key had retired and moved to california and i knew the name and i had read some of his stuff and i just saw his name on an office door so i went and introduced myself and we became friends and i learned a lot from
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him. >> what brought you back here to leave california? >> i got an offer from the dean and a full professorship. i was an untenured associates so i liked that but actually, more important is that george had spent just by chance a year visiting and we became friends and i think in the fall of that year i started in 68 in august
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or something and that was the year when nixon was elected and had appointed before the election but he was heading the committee on antitrust policy and george put me on a committee that he organized and i met the distinguished economists that were on the committee along with some of the faculty. so i got to know the chicago economists and it made the move attractive. i only spend a year in
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california and have a feel for the state but didn't feel any kind of commitment to it. >> what made you decide to write a biography? >> i had read the biography that i think came out in 2012 and it was a good book about he didn't have access. this is a whole generation so to speak that passed on so he made the best of it but i thought what people want to know about is what they were like when they were younger so i approached him
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and asked if he would cooperate and to that end two or three things sitting down with me so i could record the conversation and opening his archive and also if people called up and said if i want to talk to this guy that is pestering me can i say yes so i was able to talk to all sorts of people and it was exactly what i had hoped it would be getting information about a great figure as a young person and then going to law school and i like to think that the personality comes off the page because i have such a great good
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fortune must lead the people he mentioned when he was younger so that's how i got involved in the project. i said i didn't want to have happen to him what happened to friendly which is to have information to contribute. >> what was the biggest surprise you learned in the course of doing this? >> it is how funny he is. i had access to his archive and a lot of personal correspondence and some of it is wickedly fun funny. so in his opinions, sometimes k-kilo i don't want to say make a joke that describe something that's amusing. the sense of humor that i was able to find in the letters was
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sharp and sometimes as they say laugh out loud funny so that was the biggest surprise. not that i thought he wasn't funny before that, but the extent of the funniness. [laughter] >> any challenges in trying to do this work? spinnaker there was a mountain of paperwork we would have filled in the area considering he's written i think 3,000 opinions ar or mit 3100 by now, 3300. [laughter] so i am behind, then we have the books and articles more than 500 articles and more than 50 books, so i felt an obligation not that it was each work on it really wasn't but i felt an obligation to read everything so i did. that's a kind of obstacle in thathesense of taking a long ti. but the obstacle was with the genre of each biography because there is a tension between those
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wanting to know personal information and the subject to come alive and at the same time talking about the law but can be rather dull at the history of the biography isn't as strong as a genre so we had a couple of good biographies but for the most part, they appeal to a small audience in half a dozen professors who are interested in a particular subject. ..
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>> >> house in back have not read too many actually. barrett is an endless biography i don't think i read every word but it hundreds and hundreds of pages long and it took 30 years or something? similarly, the biography which was a flop in because
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most of what was written written, and he wrote actually police on the two were three constitutional opinions and a biographer was a constitutional lawyer so for example, he rode a very influential opinion on copyright law. and was delegated to write a chapter on contributions to copyright law for students as he was a professor of stanford not the chicago law school so that was a questionable biography. there are several biographies about john marshall and oliver wendell
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holmes there is supposed to be biographies of others like robert jackson. >> this is unusual is a biography of a sitting judge sitting handstanding. [laughter] >> they're all dead? >> and hopefully will be with us for awhile but so the one question that comes up with your judging pushing the boundaries for relative to other judges with a intellectual one and your fuel -- a view of the role of the judge with a fax so in terms of the biography is a possible to know too much
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about a judge? should a biography be limited in? >> what kind of limitation? that they are stepping aside their rule. and you don't degrade much with that line of thought with that majesty of the judge. >> it's witchcraft. [laughter] back. >> it is call strength and weakness with at fellow judiciary. i thought sounded too esoteric so about 320 page
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synopsis. [laughter] eye bank the supreme court is awful idol think the judges are very good. probably only aimed a couple of the justices are qualified and they are okay.
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so the opinions will be alright. we don't have to worry about quality. it is a very deficiency in the system. >> if we were to debate with that be a good thing?
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>> that would be great. [laughter] >> in terms of writing about somebody who has said strong opinions and somebody who writes opinions and it deepened my belief that the judges should write their own opinion. if they did not resign they would write drastically shorter opinions and be less likely to publish their opinions. but the true sense -- the truth is a lot the judicial opinions you get a sense of
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what interest the ems would negative interest that but to see how engaging is so locked away from the project of the circuit judges to deny it'' - - do not write their own opinion and also depriving us of what we hired them for. and to say that is a eye was hired to do. so i struggled not just with the idea of having somebody else's name to not have the author's name with the name of the judge who was not the author how do we know this
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opinion is you? and then to get to the supreme court so the idea those that indisposition of great power are delegated essentially to those law clerks freshwater law school -- fresh out of law school, but what happens 30 or 35 years with a circuit court judges with a few exceptions the line to become supreme court justices and the reason of politicians like that paper
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trail that has nothing in it which defeats the of all purpose to determine who that person is. to know who a person is. and to be kept from us when it comes to food they are or what they think or how they plan to do their jobs. mission billet data little more critical. >> should be relaxed the strength of clark confidentiality is seems like even the role of an opinion? >> i tell my clerks i don't impose confidentiality but there is a sensible rule
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which is you're not supposed to discuss a case outside their judiciary before it is decided. once it is decided, as far as i'm concerned they can say whatever they want. but just as they don't repeat my critical comments to my colleagues. [laughter] but i don't impose. the courts are very badly managed and of all the other judges to subscribe to the slogan i hate these old terms so we have office suites.
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and it goes back 14th century or something. i don't like that old stuff. but that is the slogan. vaudevillian until the law clerks to be sworn to secrecy anything in chambers that is the cliche. what other problems is every court has a chief judge but so to appoint the chief justice all the edward chief judges are strictly when
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there is a vacancy if one leaves over the seven year term the successor whoever is the senior judge who has not already set my retired. if you appoint somebody said in years about any consideration of qualifications. as a result those chief judge's one for the most part do not do a very good job. one chief judge said forget about all of this confidentiality. a friend of mine, a judge in denver said he acquires all
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of the law clerks upon arrival to read orwell and say politics which is a great introduction on how to write. but that to have any law clerks doing any writing, the judges don't do it and the chief judges don't try to impose any progress in improvements with the flock the insubordinate judges. >> you had described earlier tae a literary mind quick. >> it is a sensibility that
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is the understanding of the real world and also his days sensibility if you've emotions and one in particular. with wannabes' eureka opinions so how else could that be described? so with this awareness of people and different ways of how they live in the real world but then the fictional role that has so much to it and has the empathetic and philosophical and bass said earlier i think this is
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true. he has shakspere in him. so with the real-life comes up and then it connects to recognize the grandeur sense to be infused but that we don't find anywhere else. can evolution is historical or literary. and some judges who try to show they are smart and they
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don't work that has to course through you. that is why they can't so easily innersole effective. there is no section the talks about how often those literary allusions with those examples that i describe what how often do describe that? >> but i think that comes through in the opinions were. >> can you imagine yourself what you had not done quite. >> not being a judge?
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>> got credit of career? alternative law career? >> i did major english in college i went in quite deeply into it. my mother was a high-school english teacher in new york was very much in literature and when i was three or four. and the editions that she had had a picture of a cyclops with an eye in his forehead.
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and i was terrified of that picture in enforced my mother to rip that out. so she was for speeding the literature so i was five years old so it is a wonderful movie. actually she taught me to read in the first grade but i happened to be sick so she taught me to read at home. throughout my use kidney of lot of help in steering me towards a literary interest which i have always retained
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>> we will stop here and take questions from the audience. >> remember to come up to the microphone. >> have a question, you have had one of the most important contribution so hod uc behaviorally economics between law and economics? >> you need as polished as psychology?
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i think there is a lot to that. i really haven't had that kind the issue arise i don't think they mentioned that. but there is a lot to that. and not to pay much attention. >> richard just wrote and talks about that evolution can this seems to be gaining traction in the economic models. >> he is very aggressive.
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>> so with the economic analysis it doesn't come up much in my case and when i was appointed to have a lot of antitrust cases. but then that has not dried at. i have not had many antitrust cases so they don't usually depend on of those economist and how they have developed.
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so i have not done much. >> i have bought almost all of your books and read your block and you told us that you wrote to 300 opinions the u.s. very hard-working so haughty manager time and what is the best you can share werke n university across the nation? [laughter] >> eye all they do a little teaching and maybe half of
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the faculty has expanded. i do have researchers. we have a staff of research assistants who is the leader of the staff. it is an academic writing and research. and the rest of the time the family devoted to my judicial work in -- and i have continued doing academic writing and the strength than weakness has taken a lot of time.
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so yes, i worked most of the time. >> when i read the book that on the typewriter that it goes so fast? >> i got my first typewriter negative 13 so i taught myself to tightened negative tight end kevin typing furiously ever since. and eye and a good typist but i was a full-time teacher sitting in office typing and a student, i'm not even sure it was a student but a person came into my office and said would be mined typing my resonate plexiglass laugh so
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i actually six behrman did recently with dragon dictation and it converts that. first i found the learning process the machine keeps telling you to repeat and keep going. so that was painful but when you talk to have to give it the punctuation. and that is tedious. so i gave up on dragon.
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i imagine there will be developments to create a snooze connection between speech and printing. >> i gather you don't have problems with procrastination? [laughter] >> no. >> a question for the biographer, did you note these events that has influenced the thinking of judge posner? pdf and dat is that we would not expect one? >> and princeton's for the
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first two articles there were these events in fact, there was one article that this is a is his idea that is very gracious thing for a number to. and with the connection between them. and when at the stanford law
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school to overcome the story of living next door for days on end. so i thought that as the eureka moment. and then before going to stanford. and then to be important figure. and with those acknowledgments eye show in the acknowledgments the connections for the director and others with gary becker
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being another one as well. so i show up 3/4 times and all i did this just read something southey's acknowledgments are pretty powerful evidence that the person being a acknowledged was an important influence. >> judge posner in your last book he decade many judiciary to take further aim one but of course there remains of loss schools today proclaimed serious to think they could be better and speak to those laws students in the room and how
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we best spender time of school? >> defeat the law school's, the tendency at all have firsthand knowledge but there is a tendency with no practical experience at all and never will have some of them had ph.d. in their field of psychology but then they went to law school and spending years on uh ph.d. then after graduating been hit want to be professors to have a background in another
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field because they knew that the jobs were few and the pay was low. maybe after the clerk ship they had been teaching fellowship, by the time they're ready to become law professors or finish all of their trading, it is too late to go into practice as preparation for teaching because they are too old. so as a result, a lot of law professors don't have firsthand contact with the legal system.
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and i do think that is a deficiency. now, looking at the supreme court to but of those nine had been in trial court. now all it is ridiculous to have a jet to does not have a trial experience so mid-1980s one eye argue cases but was never a trial judge. one of the judges said to be sense you have never been a
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trial judge you shed one volunteered to conduct trials in an the district court circuit. so i have done that for the last 35 years. mostly civil bobby cover recently i have done a couple of criminal trials. those were real eye openers. a lot of them have then jury trials. also with pretrial work on a much reduced frequency. but they should be required to conduct trials you really don't understand uh judicial process.
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you have never watched a jury to look at their faces as they try to figure out what is thrown at them by the lawyers if the witness is telling the truth and through cross-examination equip the jury to learn if somebody is telling the truth you don't learn anything at all. but what you discover is some people are very nervous some will think the person must we lying when they
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testify. some will say the person must be telling the truth. but absolutely no support for deposition with reliability and credibility from those demeanor accused -- qp to look at the questioner and the cross-examine her that doesn't mean anything at all. their confident liars' and tinted truth tellers. if you have never been in a trial court especially as a judge to evaluate credibility also then i can
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understand they say that adversary system fix this so great that means credibility is determined by a jury and that is nonsense. to conduct the trials. but most have no experience to try case. >> but the chief justice who had never tried it case decided to try a case. he tried case and was reversed by the fourth circuit. [laughter] so that is the last time
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anybody tried that. so with my colleagues some have been in court at some point many have never been in a trial court so that is a serious problem.
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had to be 30 miles debate so they could be quickly transported to a hospital. comet had to be within 30 minutes of hospital in which the abortion doctor has visiting privileges would to
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a mitt a patient. helen adams and the notion was that would not be granted privileges by the hospital because the hospital doesn't want to be associated with abortions. and most of those abortion doctors are not qualified because that is all they do they don't do hospital work so instead you call my 11 to take the woman to the nearest hospital. not necessarily a hospital that the abortion doctor has privileges. select be very difficult to. texas has the same but worse
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because they required special vehicles? the alliance had to be equipped so the supreme court invalidated at and the justice so with those 40 pages one but the case has then dismissed the plaintiffs attacking texas law filed a previous case in your not supposed to be litigate and briar with his majority opinion discuss this 2.0 one that there were
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others in the case and also especially 40 pages. >> this is the last question. >> judge posner, given your feelings of the opinions that they write in which a day play as a region decision?
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>> do have a very low opinion with the legal system in this so backward looking. but the original constitution in 1788 that is to under 28 years ago. and smart people at the time said you can write a constitution. in the distant future. so that did not sell.
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one said you cannot treat this because the world will change and that has been the attitude of the supreme court. the body of constitutional law and that sounded has to be. but of course, the supreme court justices is reluctant to add a mitt that so now we have the original is some promise khalil was big on this of what people thought in the 18th century is ridiculous. there were a few honest the original list.
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can to be reluctant to overrule? at the supreme court is not very good than 10 years later they overrule the. but it is a text and judicial opinion that we're not paying attention to that anymore but the supreme court notion but they feel under pressure congress does not like the supreme court.
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so they were about congress's decisions and if congress does not love them. so to create some sense of the notion that they decided case and are still following it with pleasure the supreme court is brave to decide case. so looking back words that is the worst part of the profession last year it was the 800 anniversary of which people don't know anything laugh laugh so the magnet korda or the jury but magnet
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korda was from the popular king of england to one - - john and the of baron who was a much higher tier of the aristocracy, they did not like this guy so they managed to get him to agree that if the baron was prosecuted for anything, his guilt would be decided by a jury of his peers. and now ordinary people or the jury's. so after a few years to repeal back neckar up. eventually was restored of
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the magnetic card at -- magna carta. i'll was invited to something where people talk about the magna carta and there were all salivating over magna carta and. [laughter] that was a great system we had been. yet can see i am a sourpuss. [laughter] >> i will close with a last question cats inverses dogs. ? >> that is an important issue and the only mistake is he misnamed my cat he called her dinah that was a
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cat of hours actually famous because the new yorker ran an interview in 2001 and they were very insistent that dinah had a photograph and put that indeed yorker of me holding her. they were insistent about that. actually got some hate mail not from the dog people but she was very shy and did not want to be photographed. i got it least one letter from they said look at the eyes of the cat that cat did not want to be held or
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photographed berger you should not have done that to your cat. [laughter] i thought it was hilarious that "the new yorker" this circulation of several hundred thousand that they are looking at my cat. but dyno was not able to capitalize on the other celebrity. [laughter] and eventually the creature died. the current catch is named pixie. needless to say she read the books and she was bothered. [laughter] eye and a cat person laugh laugh and i will admit it.
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>> is that because you are anti-dog cart. >> no. we have had cats i mean we have had dogs. we had a dog when i was growing up. here is the big difference. the dogs are servile. we had a dog we had in elkhound it was a large dog he was formidable. but if you would frown when back the dog, i have forgotten his name. he had a great name like fang.
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but if you would frowned at him his lips would tremble because they tend to be servile towards people. and cats are the opposite. our cat is a wonderful cast. in day seagate is a much more interesting relationship of how would this to be servile. [laughter] maybe i'll work class. [laughter] because the cat is elegant and graceful. and bossy and definite.
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but pixie likes to, what i am typing mostly i have a mouse pad to the right of my eight laptop and i have a wireless mouse she likes to come over and sit on the wireless mouse. that paralyzed me if i tried to reach under hershey will scratch me. so she in forces recisions -- decisions and i love it is delightful. >> the book you can get it at the local shelter. [laughter] please give thanks to judge posner. [applause]
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>> clearly this book is about water bottle so a book about climate change and biodiversity and peace and conflict and food security. so what i do is explore how water connects with all those different facets of our challenges. and also explore how water
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literacy to understand how water works or moves across the of landscape and the atmosphere can help us better address these concerns. it is no news to any of you we do have a lot of really difficult challenges before us but we will not resolve those challenges with a visual graf. we will not merely get these problems, we will not get there from scientific research or a peer review steady in part because of the political is asian of
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the agricultural science and most research is not out in the real world but it is done l. lab so you don't see how the system operates so you can look at each one separately you cannot say we will deal with biodiversity and beat competing with other institutions that deal with climate change and other things. the way that you will really address the challenges is by looking at all system and asking questions what might we learn from that? and looking at the systems as a whole of the social and

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