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tv   Richard Posner  CSPAN  November 11, 2016 3:30pm-4:46pm EST

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to it only my frankness and my goodwill. no ambition, no self-interest and working for my glory, i work for their happiness. >> you can watch this and other programs online at william done rc was a lawyer and legal writer for 32, he is the author of three previous books on federal judges as well as a book on the nature of practicing law. he has a ged from the university of connecticut school of law and a phd from the university of california riverside. poser is circuit judge, united states court of appeals for the second circuit and a lecturer at the university of chicago law school. joining the conversation tonight by tom ginsberg, professor of international law and the university, presenting this program please join me in welcoming them now. [applause]
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>> thank you calling and without further ado i thought i'd pose a question first to the judge alternating between the joint and biographer. mister posner, when you were the age of some of these people as an undergraduate at yale, but biography tells us you are a fabulous yates scholar, interested in literature. what made you decide to go to law school? >> law school is always the default graduate choice for any college graduate. and my father was a lawyer and he gave some thought to going to graduate school in english but decided it was not for me so i don't think i consideredanything else . >> harvard law school seemed to have a permanent
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impression on you isuppose, seemed to change and launch your trajectory in many ways . can you tell us about the academic experience there? >> well, it was mixed. but they did something clever. they did attrition in their first year of law school so that was very good. i got a good start. and second and third years were not as interesting. like the professors, i realized taking about this, i skipped my last year of high school and so i was only 16 when i went to yale college and i was only 20 when i went to law school but i was younger than the other kids. and i was brought here. and if i didn't like a professor, i really couldn't
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concern that and i liked most of the professors, not all of them. my particular bcte noire was the dean, dean griswold. a terrible teacher, terrible. taught tax. and when i was a student in his tax class, this is unfair and unresponsive, apparently i scowled at him once. my worst encounter, this is hilarious because this is right out of alice in wonderland. i became the president of harvard law and every year the president would meet with some stuffy old boston financier or something at the
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trust or whatever it was and with griswold. so at the meeting, i had the captain and griswold was very upset. why was he upset? there was a refrigerator in the building reserved for the faculty and it contained tarts and he said some of the parts were missing. this is the trial of the naval heart. he said some of the parts were missing and he thought some of the board might have had access to the refrigerator and stole the tarts. i said, i don't think i can keep a straight face. but he really disliked me a lot. he disliked me a lot. to the extent that the first teaching job was at stanford
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and when i was under consideration there, they sent a letter to griswold and i gone to harvard law school and they said what do you think of posner? and griswold said i shouldn't, it was terrible. the stamford people didn't care, they said he was a real sourpuss. later we actually became friends. but i did think that in retrospect, the dean, about two years in and the other students went to college and law school made me somewhat more rebellious student. it didn't hurt but i'm still
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glad that i got out and began working at an earlier age. 23, 23, yes. >> you meet your director and he's a profound intellectual input on you . >> he was a very brilliant economist. but he retired and moved to california and stanford had given him an office and i knew the name, i read some of his top and i just saw his name on an office door and i went in and introduced myself and i learned a lot from him. >> what brought you back here, it was fortunate
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obviously but why did you decide to leave the sunnier climes of california? i got a very good offer from the dean, a good race and for professorship. i was an untenured associate professor at stanford but i like that but more important was that i had met, apart from aaron, george stigler just by chance spent the winter quarter of my year at stanford visiting stanford and we became friends. and i think in the fall of the idea, i started at 68 , august or something and that
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was the year when nixon was elected and nixon had appointed, i guess before the election, he was sort of heading a committee and an antitrust policy and george put me on the committee to reorganize and advise and i met ronald cause lynn who was on the committee along with some of the faculty. the final law faculty. so i got to know, getting to know these two economists, made the move from stanford to the chicago tribe. we spent a year in california
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and i enjoyed it. i got a commitment to it. >> so mister domnarski, you've known mister posner for many years, when did you decide to write a biography? >> i had a biography of henry friendly which came out in 2012 and it was a good book , did a lot of research but he didn't have access to people who knew friendly when he was growing up because friendly had died, i think it was 1986 so there was old generation that passed on. he made the best of things but i thought that what people wanted to know about when it comes to that thought is what they were like when they were younger and as they developed so i asked him if he would cooperate and
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cooperation really meant two things, and that sitting down with me, in the course of conversation in opening his archive at reagan's general library it also meant that if people called up and ask it was okay, that he would say yes. and he did all the time so i was able as a result to talk to all sorts of people beginning with fifth grade, from fifth grade on and it was exactly what i hoped it would be in the sense of getting information about a great figure as a young person and going to law school and practicing and speaking and writing and judging and i'd like to think that the personality that i write about comes off the page because i had such great good fortune in some of the sources i had. mostly the people i've mentioned, the ones that were
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15 and younger so i thought i got involved with the project. i said to dick that i didn't want to have happen to him what happened to henry friendly, that is to say to have a whole generation of people with information to contribute notcontributing that information so that's what i did . >> what was the biggest thing you learned in the course of investigating? >> it was how funny dick is. i had access to his archive and a lot of personal correspondence and some of it is wickedly funny. so in his opinions, dick sometimes will, i don't want to say make a joke but describe something that's amusing . but the humor, the sense of humor that i was able to find in the letters was sharper and sometimes laugh out loud funny. that was the offense, not that i didn't think dick
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wasn't funny before that, it was the extent of the funniness. >> and any big challenges in trying to do this work? >> there was a mountain of paperwork which probably would have spilled all over this area here. consider that dick has written, i think it's 3000 opinions or maybe 3100 by now . >> 33. >> 33 area. [laughter] so i'm behind. and then we have all of the books and articles, 500 articles and more of the books so i felt an obligation, not that it was a chore, it really wasn't but i felt an obligation to read everything so i did. that's the kind of optical that was taking a long time. but the obstacle is really with the genre of the judicial blogger because there's this tension between readers wanting to know personal information and
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wanting the subject to come alive but at the same time talking about wall which can be rather rust belt and in the history of judicial biography, it's not a strong genre so we've had a couple of good judicial biographies but for the most part they appeal to a very small audience with maybe half a dozen law professors interested in a particular subject and i wanted to stay away from that. i thought my subject which is such a great subject that i wanted him to dominate the book, not so much the opinions or the book but the personality, the person who is not wielding the pen but battering away at the typewriter. that was the big obstacle was the genre itself . >> of course, you've written a bit on biographies. you've read a number of judicial biographies. do you have thoughts on what makes a good judicial biography? >> i think it's mainly
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whether the person who's being written about is interesting . it could be a boring book, i've read too many. i like the friendly biography. there is an endless biography of cardozo which i don't think i read every word but it certainly covers everything, hundreds and hundreds of pages long, many hundreds and it took him what, 30 years or something? and similarly, the biography of bernard hand which was kind of a flop because most of what vernon hand wrote he
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actually wrote only about 2 to 3 constitutional opinions and the biographer was a constitutional lawyer and for example, vernon hand wrote very influential opinions on copyright law. and the author delegated the writing of the chapter on man's contribution to copyright law to a student at stanford, a professor at stanford who is now a professor so that was a rather questionable biography. there are several biographies about john marshall and oliver wendell holmes. there were supposed to be
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biographies of others which never gotwritten . margaret thatcher is a good book, very good. >> what's unusual is that it's a biography of the sitting judge. >> you mean alive. >> living, standing, ambient. >> they're all dead, aren't they? >> hopefully you will be with us for a while but i'm wondering, what quickly comes up and in your judging, you're always pushing the boundary relative to other judges in terms of being a public intellectual in your view of the role of the judge seeking facts and so on. i guess the question in terms of the biography is, is it possible to know too much about a judge ? should there be some things that are off-limits?
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should a biographer the limited to what they are asking about? >> what kind of limitation do you have in mind? >> i'm wondering if the public knowing about him, some of the criticism of justice intellectuals is they are stepping outside their role and it might somehow compromise their neutrality. i know you don't agree much with that line of thought. is it possible that some of the majesty of the judge ... >> i can't stand that stuff.i'm actually writing a booknow , well it's almost finished called strength and weakness in the american legal system. it's almost entirely about the full judiciary but i didn't want to make the book sound too esoteric so i have 10 pages on the strengths and 340 pages on the weaknesses.
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i'm very critical. i don't think the judges are very good. i think the supreme court is awful. i think it's reached a real nadir. probably only a couple of the justices , breyer and ginsburg are qualified and they're okay, they're not great. of course, the politicians don't care about the quality of judges. there politicians, they're interested in politics. they're not interested in having good judges. so in the case of the supreme court, what has been a tremendous boon to the politicians, this to the lower courts also is that all the federal judges have
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lockers and the supreme court justices and many of the court of appeals have really good law firms, they are really smart so the politicians figure well, i'm appointing this person because he/she or this is of a particular race, this part of the country or this or that or is liberal or is conservative. and this person is not particularly bright and have much experience, never had been in a trial court but he's got all these law clicks working so their opinions will be all right. so we don't have to worry about law itself. it's a deficiency in our system. >> if we were to demand that judges write their own opinion, would it be extinct? >> it would be great. most of them would resign
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immediately. >> in terms of writing about someone who has such strong opinions about opinions and strong opinions about judges, did it change your view? >> it deepened my belief, my conviction that dick is right that judges should write their own opinions. one of the things that would happen is they didn't resign, they would write shorter opinions. they would also be less likely to publish them so that would also be a good thing. the truth is when you read a lot of judicial opinions by a particular writer, you get a sense of what animates them, what interests them and one of the things that for me distinguishes the opinions is
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how engaged he is and how much fun he's having in writing. so i walked away from the project inking that the circuit judges who do not write their own opinions and that would be all of them except three or four possibly are depriving themselves of the fun and engaging in the law and they are also depriving us of what we hired them for. i think it it was hand who said this is what i am hired to do is write opinions. so i struggle not just with the idea of having someone else's name go on, not having the author's name form an opinion who is not an author. putting that aside, this idea of, how do we know that this
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opinion is you? and these opinions at this level are creating law. it's how these spaces get to the supreme court where they in turn are looking for cases of the idea that people who are in this position of great power are delegating it in effect to law firms were fresh out of law school, bright students i'm sure but they are fresh out of law school. sometimes it just really troubles me. and what's been happening for the last 30 to 35 years is that the circuit judges with only a few exceptions have gone on to become supreme court justices which is to say if you look at the biographies of the supreme court, almost all of the supreme court are surrogate judges and there's a reason the politicians like that is that there's a paper trail which usually doesn't have anything in it. which kind of defeats the
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whole purpose of having hearings, nomination hearings to determine who that person is. the thing that allows us to know what a person is, who a person is is what they write is being kept from us. we really are 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. i think it's a kind of scandal and something that should be looked at a little more critically. >> do you think we should relax the constraints on court confidentiality, it's considered a great breach of norms to reveal some deliberations and maybe rule and opinion. >> i tell my law clerks the only thing that i don't impose confidentiality but the only thing, it's a sensible rule which is that you're not supposed to
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discuss the case with someone outside the judiciary before the case is decided. once it's decided, as far as i'm concerned they can say anything they want. that they not repeat my critical confidence about my colleagues but i think that's very bad. the courts are very badly managed. this business which all the other judges i see subscribe to this slogan. everything that goes on in chambers, and that's a term i hate, these old terms, chambers. this is for judges so we have office suites and they are called chambers.why are they called chambers?and this goes back 14 century or something and there's of
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brady french influence and the term had stopped, i don't like that old stuff. but that's the slogan. all the judges, tell your law clerks, everything that goes on in chambers, stays in chambers. that's the clichc. i think many things bother me. one of the problems is every court has a chief judge but except for appointing the chief justice, all the other chief judges are appointed strictly on the basis of seniority. when there's a vacancy, a
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chief judge leaves or something or the seven-year term runs out, the successor is, whoever is the senior judge who hasn't actually sent you're appointing someone for seven years without any consideration of qualifications. it's strange. so as a result, the chief judges don't do it for me. for the most part, do not do a very good job of running the place. so we didn't have a chief judge who says, i want to forget about all this confidentiality stuff and a judge friend of mine, a judge in denver just said to me that he requires all these law clerks upon arrival to
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read george orwell's famous essay politics, the nameless language and he was right. which is great production on how to write. but that kind of, this whole is going to have law clerks do any writing, they know how to write so i just don't do it and chief judges don't try to impose any progressive improvements in their flock of supporting their judges. >> bill, you have described and said judge posner has a literary mind, what do you mean by that? >> it's disability i think that merges the understanding
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of the real world, especially with the economic analysis that drives so much of his thinking. it's also a sensibility that he's aware of emotions, human emotions. human drama, i think is one. every now and then you have one of these eureka opinions where they will have a reference to shakespeare that is completely and utterly apt and you say how else could it be described but to do it that way? so it's an awareness of people in different ways. it's how people live in the real world, one that we all know but then there's the fictional world which has so much of the reel to it but it also has the empathetic. it has philosophical. i said earlier, referring to this thing we did with the lawsuit today, i think this is true.
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i think this person to my right has shakespeare living in him in the sense that not only knowing the place so well but to understand them so that when you realize something comes up that shakespeare wrote about, it connects and so we have a literary mind recognizing the grander sense of a description that goes with literature infused into dick's opinion. it makes for something you just don't find anywhere else. he wasn't interested in illusions, historical or literary and there are some, i wrote specifically about some. >>
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thusing literary allusions, and when you see the examples that i describe you as i guess that's it exactly. how else could you describe it? that's what he meant by the literary. and also just, it's not that dick is a good writer. he is certainly that. his awareness of writers everything also comes to in the opinions. >> do you feel shakespeare in you? can you imagine yourself having done something different? cacan you imagine -- >> not been a judge?
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going into law at all? no, i, i did major in english in college and i went quite deeply into it. my mother would been a high school english teacher in new york and was very much in viewed with literature, and pushed me hard, when i was three or four she read me the odyssey in english though, and the addition she had had a picture of cyclops with the one in his forehead. and i was terrified of that picture and i forced my mother
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to rip it out of the book. so she was force feeding me with literature and cultural, generally. this was 1944, i was five years old when she took me to henry v, the great lords bolivia movie, a wonderful movie -- laurence olivier. that always stuck in my mind. she actually taught me to read in the first grade. i happened to be sick when the kids are being taught to read. so she got me to read at home. in a week or something. so throughout my youth she was giving me a lot of help, and steering me toward a literary interest, which i've always retained even though i didn't become an english professor.
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>> why don't we stop here and take some questions fully ideas? you? you may have some questions for either a biographer or a biography and we can open up. remember to come up to the microphone to ask your question. >> i have a question for the judge. your work has office been one of the most important contributions like modern legal thinking. how do you see this new behavioral economics they begin to that kind of interplay between law and economics? >> you mean the notion of people as pushed by their psychology rather than by -- i think there's a lot to that. i haven't really had that issue
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arise in cases. i don't think anyone has argued cases or, i don't think they have mentioned that. i think there's a lot of merit to it. is it, if things don't come up my case i tend not to pay much attention. but it is still as big as it was, say, 10 years ago? >> richard just wrote and he talks about the evolution of it. it seems like it's gaining traction in economic models, incorporating more than psychology base. >> is he still going strong? >> yes, he is. >> he's very aggressive. >> he is indeed.
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>> i've lost touch to a certain extent with economic analysis and law because it really doesn't come up much i in my cae it off when i was appointed in 1981 that, i had a lot of antitrust cases, so that had been my specialty as an academic. but then antitrust kind of, it hasn't dried up but it declined, diminished. i haven't had many antitrust cases. and while we have a lot of commercial cases, financial cases, they don't usually depend on the kind of principles that economists develop. they are more on specific rules about financing, that's, so when. so i haven't done much of that.
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>> thank you. >> judge posner, i have bought almost all of your books. i read your blog, and you told us that you wrote 3300 opinions. so you are very hard-working but still is a myth, hard worker i just want to know how you manage your time, how you manage yourself and what you can share with the students working in this university who were plagued with across the nation? >> well -- procrastination. >> i only do a little teaching at, in fact i feel bad about having really lost contact for the most part with the law school. i haven't even met probably half the faculty. because it's expanded in recent years.
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i don't spend much time -- i do have research assistant. bill at the law school, he and i have a staff of researchers, the leader of the staff. and that's very helpful. i do some academic writing and research, but that's sort of very part-time. the rest of the time is mainly devoted to by judicial work, except i have written, i have continued doing academic writing. like this book i mentioned, strengths and weaknesses. this is taken a lot of time, a long book. so yeah, i work most of the ti
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time. >> when i read the book it says you type on a typewriter, so fast, especially -- >> i got my first, my first typewriter when i was 13. so i taught myself to type, and have been typing furiously ever since. now, of course, on a computer. i'm a good typist your when i was full-time teacher i was once sitting in my office typing, and a student, i'm not even sure it was a student, but a person came into my office and said, would you mind typing my, i don't know, resume or something. so i typed his resume. [laughter]
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i actually experimented recently with the dragon. the you know dragon? the dictation, dictate it and it's converted into type. first i found it very protracted learning process, where the machine keeps telling you to repeat yourself and keep going. so that was painful, but then i was told that we did date, maybe it's changed, when you talk to dragon, you have to give it the punctuation. it doesn't put in the punctuation for you. and that tedious. so i gave up on dragon and the back to just typing.
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i imagine it would be developments that will create a smooth connection between speech and printing. >> thank you. spirit so i gather you don't have problems with across the nation it sounds like. >> no, i don't. >> all right. go ahead. >> one question. it's mostly for the biographer. did you know the events, persons -- [inaudible] that really influenced the life and thinking of mr. poster? mostly, if the person argues that we wouldn't expect to influence in such a way? >> that's a good question and i think the answer is found in the
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acknowledgments that dick would write for various books and articles. so for instance, for the first two articles that dick wrote when he was at stanford about one was an oligarchy's, there were these acknowledgments for aaron director. i think one article where the college but was essentially this is his idea, i'm just writing it up, which is a very gracious thing for dick to have done. but it also indicates obviously the depth of the connection between them. i was very fortunate to talk with someone who actually was able to listen to aaron director when dick was at the stanford law school.
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school. he had the office next door and he was able to tell me a story of hear the two of them next door days on end talking about law and economics with director sitting on a bookcase and dick at his desk at the typewriter just clattering away taking it all down. i thought of it as kind of a eureka moment when this birth of interest. certainly dick cavett interest in law and economics, economic analysis before going to stanford, but i think meeting based on what i've been able to figure out was a pretty significant development. as dick mentioned george stigler was another very important figure. so when you trace the acknowledgments, i tried to do this in my book, i showed the come in the acknowledgments the connections between dick and director first and stigler and then some others. gary becker being a very important one as well. i think that's one way that dick has always been very gracious.
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i show up three or four times in books as someone mentioned the acknowledgments and all i did was read something. hardly commented. so these acknowledgment where dick was saying things like without you i could never do this, pretty powerful evidence that the person being acknowledged was an important influence. >> judge posner, in your last book i know you took aim at the judiciary and the academy and is implicated upcoming book you will be taking further aim at the g. sherry. but, of course, there remains law schools and haven't spoken much about the law schools today. i'm curious to know what do you think law schools to be doing better? regrettably, speak to maybe the law students, including this one here, and advises it could help you think we should best be spending our time and law school in addition to getting the best
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grades. thank you. >> i think the law schools have a lot of problems. one is the tendency to hire, and tom can correct me on this. i don't have first hand knowledge. my impression is there's a tendency to hire people, teachers who have no real, who have no practical experience in law and never will have because some of them, they've got ph.d's in other fields, psychology, economics, what have you, so they went, and then they went to law school which was already late because they spent years on their ph.d. and then, and after graduating law school, they want to be professors, having this background, you know, in another field.
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and they want to become professors of english or something or history because they knew that jobs were few and pay was low. now maybe after they graduate from law school they have a clerkship. that's recommended. maybe after the clerkship they have a teaching fellowship at a law school. so by the time they're ready to become law professors, or by the time they finished all their training, it's too late for them to go into practice as preparation for teaching because they are going to be too old. so i think as a result, you have a lot of law professors who really don't have first hand contact with the legal system. in the practice of law and so when. that i think is a deficiency.
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you see that with the judges also. a large number, now look at the supreme court, for example. i'm thinking scalia -- i'm bringing scalia back from the dead. of those nine, one had been in trial court. now, it's ridiculous to have an appellate judge who doesn't have trial experience. so when i was appointed 1981, i have been an expert witness. i argued cases but never been a trial judge certainly. and one of the older judges said to me, since you don't have, since you've never been a trial judge you should volunteer to
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conduct trials in the district courts of the seventh circuit. so why did that. so i have been doing trials for the last 35 years. mostly civil trials. i have recently done a couple of criminal trials. i don't know why i delayed so long. real eye openers. in a lot of these trials have been jury trials, and i've also done pretrial work and settlement, sort of everything district judge is due, although obviously much reduced frequency. i think all of the judges who have been trial judges should be required to conduct trials. because he could never conducted a trial, you really don't understand a lot about the judicial process. you've never watched a jury,
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look at their faces as they puzzle out the gibberish that is being thrown at them by the lawyers. you haven't seen witnesses. you haven't understood how difficult it is to tell whether a witness is telling the truth. you know, there's this myth that through cross examination you equip a jury to learn whether someone is telling the truth. that isn't true at all. they don't learn anything about that from cross examination. what you discover is some people are very nervous when they testify. and some jurors will think that person must be lying. other people very confident when they testify, and some jurors
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will think that person must be telling the truth. actually there's absolutely no support for the proposition that you can infer a person's reliability, credibility from what are called demeanor cues come is the person nervous, squeaky? does so with the questioner, you know, cross examiner, look them in the face. it doesn't mean anything at all. there are confident liars and their art tended truth tellers. you just can't do that. if you've never been in a trial courtroom, especially if you're a judge and you are supposed to be figuring out, evaluating credibility also, you are not going to understand -- we have
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judges who say the adversary system, that's so great because it means that credibility is determined by a jury on the basis of the adversary presentation of witnesses. and that's nonsense. i think anyone who actually conducts trials would know it's nonsense. but most appellate judges have had no experience of trying a case. part of it, of course, chief justice rehnquist who had never tried a case, he decided, he would try case. so we tried a case, and he was reversed by the fourth circuit. [laughter] so that was the last time, almost the last time that anybody tried that. so as i say, eight of the
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supreme court justices and several of my judges or my colleagues, most of the appellate judges actually have never been, some of them have been in courtrooms as trial lawyers, that's something. many have never been in trial court. but i think it's a serious problem. >> my question is for judge posner. i've a students i don't know much about the american judiciary, from pakistan, i want your opinion. food you think is bridge just as true representative of what america judiciary should be about what is about what as a law student which a judge would you recommend we should read the opinions of? >> i think the only two justices
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who are qualified i think our ginsburg and justice breyer. and their opinions are readable. and sometimes, sometimes quite elegant. the others i wouldn't waste my time reading there's. [laughter] >> at another question -- >> i have to tell you, i read recently that most tedious opinion i've ever read. i don't know why but the whole thing, but there was this texas abortion case, and there was an issue, and, of course, judge alito wanted to, if it was affirming or what it was, he
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wanted -- what texas had done, we had that in wisconsin and we invalidated it. so it had been done. what they have done is, they did two things. the first was to say that an abortion clinic had to be within 30 miles of hostile so that in the event of an emergency, during the abortion, the woman could be quickly transported to a hospital. wait, i left out something important. had to be within 30 minutes of a hospital in which the abortion doctor has visiting privileges. he could admit a patient.
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and the notion was the abortion doctors would not get, would not be granted visiting privileges by the hospital because the hospital doesn't want to be associated with abortionists are and also most of the abortion doctors are not qualified for privilege because only do is abortions. they don't give hospital work. if there is an emergency involved, and abortion from what you do is you call 911 and an ambulance will take the woman to the nearest hospital. not necessarily a hospital in which the abortion doctor has privileges. he can get privileges which is very difficult for abortion doctors. so texas had the same thing, and worse, because they required, i don't know, special vehicles, hospitals had to be, i mean the
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ambulances had to be equipped. so the supreme court invalidated that. and justice alito's hyper conservative, wrote a very long dissent, 40 pages. but the only thing he said in his dissent was that the case should have been dismissed on the basis of the res judicata, because some of the plaintiffs attacking the texas law had filed a previous similar case which had been dismissed. and you're not supposed to, you know, relitigating the identical case. and justice breyer in his majority opinion discussed this and pointed out, there was some overlap in some of the plaintiffs, loads of other places in the case had nothing to do with the earlier case you're what the also should've
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said but he did say his wrist judy codding is this common law rule about -- raise judy codding, litigation which is fine, but it's not part of the constitution or anything. this is an important issue. you want to get it settled. by which a fuss about that? especially for 40 pages? >> this'll be the last question. >> so judge posner given your feelings about some of the members of the judiciary and the opinions about the right, what is the role that you think president should be playing ideally when the judiciary's reaching decisions on what role if any should over be playing?
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>> i have a very low opinion of -- what i don't like about the legal system is it so backward looking, like president of the constitution or constitution, the original constitution ratified in 1788, that's 228 years ago. and smart people at a time like a jefferson said look, you can't write a constitution that's going to be meaningful in the future, in the distant future. in fact, he thought you were supposed to have a new constitution every 30 years. that, of course, didn't sell. but a number of the people said yeah, it's not, you can't treat this as some sort of straitjacket because the world
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is going to change, and that, in fact, has been the attitude of the supreme court. what the body of constitutional law today bears only an incidental resemblance to the text of the constitution and all the amendments and someone. and that's how it has to be. that's fine. but, of course, the supreme court justices and the profession generally is reluctant to admit that so you have this originalism, textualism. scalia was big on this, supposed to decide cases based on what people thought in the 18th century. ridiculous. and very little attention actually pay to and there are very few honest originalists. certainly not scalia. and precedent is very similar.
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supreme court reluctant to overrule previous -- if they are worried that people think the supreme court isn't very good because they decide these cases and 10 years later they overrule them. but, of course, the precedent issue is not a constitutional issue. its attacks, a judicial opinion and after a few years, many years it's obsolete. not paying any attention to that anymore. but the supreme court notion, the supreme court justice, they feel under pressure. for one thing, congress doesn't like the supreme court. ..
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>> so i think that looking backward is really, that's the worst thing about the profession, looking back. they made such a fuss last year because it was the 800th anniversary of magna carta, about which people don't know anything. so i think magna carta is the beginning of the jury, and it's, you know, great charter of liberty. magna carta was about -- there
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was this very unpopular king of england, john, really bad, and the barrens who were -- barons who, i think, were a higher tier of english aristocracy than they have come to be -- is that right? so they, they didn't like this guy. and they managed to get him to agree that if a baron was prosecuted for anything, his guilt would be decided by a jury of his peers. that that didn't mean peer literally, a peer as an aristocrat, it had to be other barons. they weren't saying that ordinary people were going to have juries. so after a few years, john -- i think it was still john -- repealed magna carta. eventually it was restored.
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but it's not really anything -- i went to a, i was invited to some kind of bar thing where people were talking about the magna carta and, oh, they were all salivating over magna carta, it was so great. [laughter] shows what a great system we have, had it for 800 years. forget magna carta. you can see i'm a sourpuss, right? >> let me close with the last question. back to the personal. >> well, actually, that's a very important issue -- [laughter] and the only mistake in bill's book is that he misnamed my cat. [laughter] he called her dinah. dinah was a cat of ours.
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in fact, a famous cat because the new yorker ran an interview of me back in 2001, and they were very insistent that dinah be -- they wanted to have a photograph, and they put a photograph in the new yorker of me holding dinah. they were very insistent about that. and i actually got some hate mail -- [laughter] not from the dog people, but dye a that was very shy -- dinah was very shy, and she did not want to be photographed. and i, i got at least one letter from someone who said, you know, looking at the picture, looking at the eyes of that cat, that cat was, you know, did not want to be held. [laughter] and photographed. they shouldn't have done that to your cat. [laughter]
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so that was -- i thought it was hi area yous, the fact that -- hilarious, the fact that the new yorker has circulation of several hundred thousand. i love that, several hundred thousand people are going to look at my cat. dinah was not able to capitalize on her -- [laughter] on her celebrity. and eventually, poor creature died. now we have, our current cat is named pixie. so when you do another paperback, because pixie, needless to say, she read the book. she was bothered when she came to dinah's name. [laughter] yeah. so i'm a cat person. [laughter] i admit it. >> yeah. >> are you -- is it because you're anti-dog, or is there just something about cats?
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>> no. and we've had -- my wife and i have had cats, i mean, had dogs. we had a dog, i had a dog when i was growing up. i think the cats, well, okay, here's the big difference. the dogs are, the dogs are kind of servile. we had a dog, we had a norwegian elk hound when we lived in washington, and it was a large dog, and it was, you know, a formidable dog. but if you so much as frowned at our dog, charlie, what did we -- i've forgotten his name. >> [inaudible] >> fang. yeah, he had a great name, right? he sounded frightening. but i say, if you frowned at
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fang, his lips would tremble. [laughter] because, you know, they tend to be servile toward people. and cats, the opposite. they don't -- our cat, wonderful cat, she regards us as servants. [laughter] and treats us accordingly. [laughter] and i think it's just a much more interesting relationship than you feel how it is to be servile. [laughter] to be a member of a lower class. [laughter] because the cat, you know, they're elegant and graceful and bossy. very definite. and and pucks city likes to -- pixie likes to, when i'm typing
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most of the time, i have a mouse pad to the right of my laptop, and i have a mouse, a wireless mouse on it. and pixie likes to come over and sit on the wireless mouse. that, of course, paralyzes me. if i try to reach in under her for the mouse, she'll scratch me. so she enforces her decisions, and it's delightful. i love it. [laughter] >> all right. well, the books are available, you can also get kittens at your local shelter -- [laughter] and join me in thank both judge posner and -- [applause] [inaudible conversations]
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>> on his web site in mark levin, mark levin provides a list of books he deems required reading. ben shapiro's novel true allegiance, looking at american america's downturn and the war in afghanistan. "wall street journal" columnist and author kimberly strassel says the political left is using scare tactics to silence conservative speech in the intimidation game. and be in liars, radio talk show host glenn beck talks about how fear makes americans fall for the false promises and lies made by politicians during campaigns. "wall street journal" reporter
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jay solomon reports on military, financial and covert battles of the iran wars. mark levin also recommends peter schweizer's graphic novel on the investigation into the clinton foundation, clinton cash, as well as john lott's the war on guns which analyzes and attempts to debunk anti-gun studies. another recommendation is stolen sovereignty in which daniel horowitz argues that the overreach of the judicial branch is silencing free speech. three more books recommended by mark levin, american underdog by congressman david pratt who advocated a conservative fiscal policy is beneficial to all americans. lieutenant general michael flynn's the field of fight and flyover nation by radio talk show host dana loesch in which she argues the u.s. is dividing into two regions, coastal america and flyover america. the full list of book recommendations is available at
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>> it is back to the federal government's long mobilization of the war on crime promoted a particular type of social control, one that signals the target arrest of racially marginalized americans and the subsequent creation of new industries to support this regime of control are among the central characteristics of domestic policy in the late 20th century. the decisions that policymakers and officials acting in closed circles or as part of a larger coalition made at the highest levels of government haddism publish bl -- had immeasurable consequences, however unintended some of those choices may have been at different times and in different political moments. ultimately, however, the bipartisan consensus of policymakers fixated on the policing of urban space and eventually removing generations of young men and women of color from their communities to live inside prisons. we can excuse a set of actions and choices these historical actors made as a product of their time or as merely an electoral tactic.
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but by doing so, we will continue to avoid confronting legacies of enslavement that still prevent the nation from fully realizing the promise of its founding principles. until recently, the devastating outcomes of the war on crime have gone relatively unnoticed. for many americans, it appeared as though discrimination ended with the civil rights movement, and the united states had moved beyond race-based systems of exploy sayings. alongside the -- exploitation. a formidable black middle class surfaced, and african-americans assumed positions of power with greater visibility from the rise of black mayors in the 1970s to displays of black wealth for popular consumption to the presidency of barack obama. these achievements promoted discourses of cultural pathology and personal responsibility even further, making it seem as though the systematic incarceration of entire groups of racially-marginalized citizens reflected the natural order of things. political representation and the fact that some black americans
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have amassed substantial wealth and capital do not mean that historical racism and inequality has ended, which i'm sure is not news to many of you in this room today. african-americans grew more affluent after 1965. by the end of the 20th century, the net financial assets of the highest fifth of black american households were $7,448, only 448 above that of the lowest fifth of white american households. and the black middle class has always been concentrated in the public sphere in social services where mobility is tied to the extent of state spending on domestic programs. in celebrating the racial inclusion championed by african-american activists and their allies in classrooms across the nation during black history month every year, the fact that many of the critical reforms of the postwar period have been negated by national crime control priorities remains unrecognized. for instance, nine years after the passage of the voting rights act, the dawn of mass incarceration, the supreme court
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ruled it constitutional to deny convicted felons the right to vote. states have consistently removed convicts from voter rolls ever since the court's 1974 richardson very ramirez -- richardson v. ramirez decision, and today more than six million americans are deprived of the franchise. as a result of the racial disparities in american policing and criminal justice practices, an estimated one 1 out of 13 african-americans will not vote in the 2016 election due to a prior conviction. because of this felon disenfranchisement and the set of punitive policies behind it, a key civil rights gain of the to 1960s has come undone. we can go on and on. to make an already questionable situation worse, the u.s. census mainly counts people who are incarcerated in state and federal prisons as residents of the county where they are serving time. and sentence counts in turn determine representation. so although rural areas are home to the minority of the u.s. population, they are home to the
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majority of prisons. in other words, urban americans who tend to favor democrats lost representation because of how felon disenfranchisement works and rural districts, that tend to favor republicans, gained representation because of how the prison system works. meanwhile, as mobility remains stagnant, public schools in neighborhoods are more segregated than they were before the civil rights movement. >> you can watch this and other programs online at >> you're watching booktv on c-span2, television for serious readers. here's a look at what's on prime time tonight. we kick off the evening at 7 p.m. eastern with national book award finalist kathy o'neill who reports on the harmful effect of big data and mathematical models. then at 8:15, burt and anita folsom talk to booktv about mitch rutledge, a former death row inmate who befriended the
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couple in 1983. and at nine, jeff chang weighs in on race in america. at 10 p.m. eastern, margot lee shetterly discusses her book, "hidden figures: the american dream and the untold story of the black women mathematicians who helped win the space race." we wrap up booktv in prime time at 11:15 with a book party for tevi troy's most recent book on how presidents have dealt with disasters, "shall we wake the president." that all happens tonight on c-span2's booktv. [inaudible conversations]


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