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tv   Book TV In Depth  CSPAN  June 11, 2011 9:00am-12:00pm EDT

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issue. with the united states and western powers get behind, in the interests of the people. the vast majority of the afghan and pakistani people, then perhaps there could be some kind of resolution. all the ingredients are there. just like 9/11 and the reaction to the war in iraq. it will be a strategic thought -- a strategic shock could be more catastrophic than previous wars. >> that is all we have time for tonight. thanks to our guests. [applause] >> thank you very much. >> that was elizabeth gould and paul fitzgerald on booktv. for more on the authors and
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their work visit >> we ask what are you reading this summer? here's what you had to say. send us a tweet at booktv using the tag summer reading to let us know what you plan on reading this summer. e-mail us at booktv/ up next author and professor eric posner. the university of chicago's kirkland and ellis professor of law will speak on international law and the difficulty of a climate change treaty and the balance between security and
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liberty. mr. posner is the author of "law and social norms" and "the perils of global legalism". he is the co-author of several other books including "climate change justice" and "the executive unbound: after the madisonian republic". >> host: this is booktv's monthly author call in program where we feature one author and his or her body of work. we were pleased to pro -- host eric posner, a law professor at the university of chicago and we are in chicago at the chicago tribune with fast and we are joined by a studio audience as well who will have questions for professor posner. professor posner, start by giving us a snapshot of what you do and what you write about. >> guest: i am a professor of law at the university of chicago. i have been there for 15 years. i write a number of different
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topics. constitutional law, particularly the powers of the president and international law. and other legal fields, contract law and banking law as well. >> host: you are the kirkland and posner professors at the university of chicago. what does that mean? >> that is given to professors when they reach a certain level when they're old enough to get one. doesn't mean anything beyond that. >> host: let's establish your pedigree right off the bat. you are judge richard posner's sun. >> guest: he is the judge of the second circuit court of appeals. he was an academic at the university of chicago law school. he is well known for a variety of opinions on various things. in the legal world he is best known for introducing economics
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to the law. >> host: let's show you professor posner's book so you get an idea what he writes about. he published his first book in 2000 and that was "law and social norms". he has also written "the perils of global legalism" that came out in 2009. professor posner has co-authored several books including limits of international law," "new foundations of cost-benefit analysis," balance: security, liberty and the courts," "climate change justice," and "the executive unbound: after the madisonian republic". i want to start with that one. "the executive unbound: after the madisonian republic". in my reading of that book is it fair to say that you write that the separation of powers as established in the united states is not working? >> that is right. it is not working. it has eroded over the centuries. the result is the president has become much more powerful than
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the founders anticipated when they designed the constitutional system in the 18th-century. >> host: is that a bad thing? >> guest: i don't think it is a bad thing. the purpose of the book is to criticize the conventional wisdom that this is a bad thing. the president has become a too powerful that is unaccountable to the people. the view that i served with my co-author is the world has changed a great deal in the last 250 years. congress and the judiciary no longer function as well as the founders anticipated they would. there has been a natural evolution of power to the presidency as a result. >> host: who is your co-author? adrian never meal, professor at the university of law school. >> host: what is the practical effect of having a more powerful executive? >> guest: the libya
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intervention. president obama decided on his own to send u.s. military forces into libya. under the constitution as written he is supposed to get the authorization of congress. that did not happen. obama is not the first person to do this. president clinton did something similar when he said u.s. forces into serbia and other presidents have before us. this is an evolution of presidential power that congress has acquiesced to. >> host: there was a lot of criticism in the bush did illustration about the power of the executive and dick cheney, well-known proponent of executive power. did the bush administration pushed the ball forward when it came to unleashing or on binding the executive? >> guest: it did but not as much as people believe it did. weather -- one of chaney's ideas
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was the president was powerful back to the nixon administration and there was a backlash as a result of watergate and his view was we put our country to be secure and function when the presidency had to be as powerful as it was up until nixon. he and others in the administration sought to reassert these powers. much of what the bush administration did, perhaps almost all of what it did felt comfortably in the grassroots of previous presidents. same thing with obama. presidents have a tremendous amount of power. the bush administration took advantage of existing understanding and precedents. >> host: you write about international law. we got this e-mail for you from christopher went in virginia. he writes in do you believe that
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the obama administration has mostly continued or departed from the bush administration's legal framework in the fight against terrorism? >> guest: there have been some significant breaks. on examination they seem less significant than they might appear. the obama administration repudiated torture but the bush administration have also more or less given up on coercive interrogation or torture by 2007. the obama administration wanted to try more people but had to give up on the idea. in other respects the obama administration has continued bush administration policies. warrantless surveillance is an example. the use of drones to fascinate people who are considered threats to u.s. security including american citizens.
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the assertion of strong secrecy privileges which has made it difficult if not impossible for people harmed by counter terror operations to make lawsuits. really detention of people without trial is something that was greatly criticized during the bush administration but the obama administration has continued that as well. >> host: you use the term tyr o tyranophob tyranophobia. >> guest: it is the unreasoning fear of powerful executives. this country has a long tradition of that. at the beginning it was quite justified because when the country was founded it was the only large republic or quasi democracy at the time. most countries were kingdoms and the founders were well read in the classics and in european
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history as well, fear is that the u.s. would follow the precedents of other republics and degenerate into a monarchies and into a tyranny. they were very worried about this and the constitutional design can be explained in large part by their efforts to prevent that from taking place. what has happened over the last few hundred years is most countries have become democracies. various institutions that were unknown in the eighteenth century including the party system and the modern robust freedom of the press which have arisen have reduced the fear -- reduced the risk that a powerful executive would engage in abuse of power. >> host: two books that you have written, "the executive unbound: after the madisonian republic" and "terror in the balance: security, liberty and the courts," are they written for law students or the lay public? >> they were intended for both
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groups. scholars and the public. they do assume a certain amount of knowledge of the history of the president and constitutional law so surge in segments of the public. >> host: in "terror in the balance: security, liberty and the courts," this is a quote from "terror in the balance: security, liberty and the courts," if the case for coercive interrogation during normal times is weak because the moral harms' outweigh the benefits the case and dramatically strengthens during emergencies. during emergencies the moral harms' from coercive interrogation remained constant while the potential benefits rise. this is a simple application of the trade office's. what does that mean? >> guest: this goes back to debate about the worth of interrogation. basically a utilitarian one. any policy they might pursue is
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justified as benefits are greater than the cost. prisons are justified because they reduce crime. the same with coercive interrogation. there is a history of abuse of coercive interrogation which provides reasons for not using it at least in normal times. in an emergency, everybody appeals to the ticking time bomb hypothetical, a stronger argument for using coercive interrogation. during an emergency when there is a significant threat to the public the benefits from using it go up. the arms are still considerable so it shouldn't be done lightly but there may be justification for using coercive interrogation in such circumstances. >> host: you refer to the court
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system. what are the court cases that have changed how we look at terrorism and how we treat coercive interrogation? >> guest: surprisingly the courts have been silent. they have not had as much influence on counterterror policy as one might expect. i don't mean literally silent. there have been cases like the hand in case and others. what is interesting about these cases is people were challenging the bush administration for example for detaining people. the supreme court says that is fine. these can be tamed people because we are at war. people challenged the bush administration for having military trials rather than civilian trials for respected members of al qaeda. supreme court says we don't like
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this because of problems with the statute. these trials are still possible. the supreme court has never addressed the issue of torture. there are some older cases that suggest very strongly that torture violates due process. >> host: welcome to in death. this is your chance to talk to author and law professor eric posner. 202-624-1111 in the east and central time zones. 624-1115 for those of you in the mountain and pacific time zone. you can send an e-mail to is our e-mail address or send a tweet to or our handle is@booktv. we will take those calls over the next couple of hours and we will be taking questions from our audience in chicago as well.
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what do you mean by the term global legalism? >> guest: that means the excessive faith in international law as a solution to problems as international cooperation and security. >> host: is there such a thing as international law? >> guest: there is such a thing as international law. it is effective in limited circumstances. the view that our call legal globalism that i criticize, you see more in academia and in europe more than in the united states that if countries would agree to more international treaties problems like war and climate change would go away. the argument in the book that i make is there are basic problems of collective action at the international level which did
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not exist in countries and it is difficult to solve those through international law. >> host: in your book "the perils of global legalism" you write that legalism and careless thinking conspire to produce a picture of international law that bears little resemblance to reality. >> guest: there is a view of international law especially human-rights, actually constrains states quite effectively. during the budget ministration people criticize the bush and administration for violating stern and norms of international law but did so because it could and other countries violate international law because they can get away with it. in some circumstances states cannot get away with violating international law and from an academic perspective it is important to understand that conditions under which international law is effective
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and ineffective so that when you are designing new institutions you're more likely to produce effective rather than in effective institutions. >> host: who are social norms and who abide by them? >> guest: they are hard to define. one could think of them as a rule that govern people's behavior that are not enforced by any particular individual or institution. people -- emily post and people who write adequate books or give advice about how they should behave. one of the very interesting and frustrating things is we are never really sure what they are and we constantly are negotiating about them. >> host: you write that legal rules are best understood as efforts to harness the independent regulatory power of
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social norms. >> host: one of the points in that book is law professors have spent too much time trying to evaluate laws in a sociological vacuum. so the impressive picture of legal scholarship is you have the government and a set of law the government creates and enforce those laws and that is all that is going on. so the tradition in legal scholarship, is smaller tradition that i belong in, that in most of our everyday life our behavior is not governed by the law. it is governed by social norms war in another way of putting it, how people perceive us, our concerns about how people perceive us, our instinct to conform with what other people like doing. it may be that certain
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circumstances the government and harness the power of these social norms in order to accomplish what it cares about. >> host: it is expensive to enforce social norms. >> guest: one of the funny thing about social norms. you often see people behaving in ways they don't really want to behave in and make them uncomfortable or are costly. there is a social norm which is eroding gradually that men wear ties and suits the way we do have formal occasions and other occasions. it is not that comfortable to wear a suit or tie. i have a tremendous trouble remembering how to tie the knot every morning and getting the length right. it is a source of unreasonable frustration for me. this is how started thinking about these things. why don't people just dressed the way they want to all the time? but they don't. the interesting question is why
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they don't and that has been a challenge. people have been trying to meet but not successfully for centuries. >> host: as a law professor what does that have to do with the law? >> guest: suppose you are concerned about crime in the inner city for example. too much crime, we want to do something about it. the standard approach is you pass more laws and increase sanctions and you hire more police and hope the crime rate will go down. there is not that much evidence the crime rate will go down as the result of those actions. it might help on the margin but the crime rate going up or down doesn't explain in such a simple way by the policies the government chooses to use, what is going on? in some inner-city areas it may be the case that if you break the law that will enhance your status.
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so people who break the law, if the law is made stricter, the incentive to break the law might go up as well. so these were in attendance that might be created if we don't take into account what is actually motivating people. >> host: one more quote from your book "law and social norms" deals with privacy. the increase in the commitment to privacy over the last century is tightly linked to the decline of community and the rise of the rule of law. >> guest: the erosion of privacy? >> host: the commitment to privacy. over the last century is tightly linked to the decline of community and the rise of the rule of law. >> guest: it was a while ago that i wrote that. i think probably what i was thinking was in the old days, in the nineteenth century in a small town somewhere, people didn't commit crimes very much.
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why did they not commit crimes? it was because there was a big police force and the court and all that apparatus we rely on today. is because everyone knew what everyone else was doing. there was no privacy. you did something harmful you would be run out of town were ostracized or something like that so over the years the scale of human interaction has increased enormously. this has created the need to have more police and personal judicial system is. in the courts of this happening, there's a cost and benefit. the benefit is you are no longer constantly being watched by people and that makes you more able to have privacy in the first place and that makes people more aware of what they lose when the government takes away your privacy. on the other side you deal with these bureaucrats and police and so forth who may not be as sympathetic or sensitive to the
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needs of the community than neighbors were in the old days. >> host: this is in death. phone-number are at the bottom of the screen. 624-1111 in the east and central time zones. 624-1115 in the mountain and pacific time zone. is our e-mail address and our twitter to eric posner, we begin with a call from maryland. please go ahead with your question or comment. >> caller: good day and brittle mr. posner and c-span. i think we have just witnessed a giant killing in the last 20 years. four.5 million people killed in iraq. seven million people killed in
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afghanistan. six million people -- killed in the first atomic bomb in eastern, though. the nuremberg principles in 1950, and medical protocols written because of evil written in a number of code in 1933. you have written the international laws of war are hampered by the technology of war, the ability to war. that is how they are intended. no one who has been to war or suffered war, the footprints of world war ii wrote to the nuremberg principles. if you haven't said this, it takes two minutes. >> host: we don't have time for that, but professor posner? >> guest: a number of wars have killed a lot of people. i was not sure what the reference to the atomic bomb was.
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maybe i misunderstood that. these wars may or may not have been justified. that is not my area of expertise to evaluate. the question was about the law of war. wars are supposed to be conducted according to some rules. these are embodied in the geneva convention and other treaties and the norms of customary international law. in world war ii the nazis violated these and this had not happened before, in as not a dramatic away, the allies tried them for war crimes legal convicted of a number of them and went to jail. at the time the view was this would start a new era in which these atrocities would not be repeated. one of the points i make is that has not happened. there have been any number of atrocities including genocide that have taken place since
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world war ii. soldiers continue to commit war crimes. this is true of american soldiers and other soldiers. the question is why haven't the laws of war stop this from happening? what i try to do is explain why they are weak and it boils down to the fact that we don't have a world government. we don't have an international court powerful enough to compel people to comply with these wars. states in gauge in a decentralized form of cooperation. that form of cooperation is weak because state there independent. some are powerful and some are not so powerful and the result is these violations continue to occur. i don't think this is a good thing and i have never defended violations of the laws of war. i do think and maybe this is what the caller was referring to, that the rules that have
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been established to address atrocities may probably make more sense at the time they were invented and they make today when we have new sorts of problems. problems like al qaeda. >> host: in your 2005 book "the limits of international law" you write that some global problems may simply be unsolvable. this is a depressing conclusion but it is consistent with all we know of human history. >> guest: i do think that is a problem and a big problem. i don't think we are ever going to address the problem of war. i think war is always going to be with us. i am pretty skeptical that there is ever going to be an effective treaty to address climate change. what are have always been interested in is why is it so difficult for countries to do this at a global level when it developed country problems like pollution and security can be
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addressed pretty effectively. the reason is there is no global government. people are too diverse to be willing to form a single world state so we're stuck with the state system and cooperation among states is necessarily limited. that is something we have to live with. >> host: is the u. n an effective body for international arbitration? >> no. it is not effective. this is partly by design. the only part of the united nations that has legal authority is the security council. the security council has 15 members. five of them can veto any resolution proposed. these five countries, united states, britain, france and china rarely agree about everything. it becomes very difficult for
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the security council to order something be done to address the problem. the question is why can't we reform the security colossal? maybe we could have majority rule or something like that. no state will consent to that because they are afraid they will be and the minority, what matters a great deal to them and could cause serious problems. that is the basic problem of international organization. the united states -- united nations doesn't solve it. >> host: the chicago tribune sponsors the printer's row lit fest in chicago at the university center at the corner of state street and congress just south of the loop. we are with author and law professor eric posner for are in that program and we are covering several panels at the lit fest this year. you can watch those live.
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we covered several yesterday and we will cover three more this afternoon. you will be able to see. we invited a studio audience for people interested in talking with us. judge posner can stand at the microphone and take your questions as well. this e-mail from alex who is a history candidate in chicago. my name is alex and i live in hope park, illinois. my question is in in the wake of wiki leaks what legal challenges might be possible or desirable regarding international law governing the internet and also regarding law governing journalistic publication of classified information? >> guest: that is a complicated question. there is no international law governing the internet. there are a number of agreements and protocols that insure the internet functions across borders but there's no international body you can go to
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to challenge or defend the wiki leaks people. there are laws that wiki leaks probably violated against the dissemination of classified information. difficult to enforce those laws for complicated reasons. strengthening them probably wouldn't do much good because this is the whole point of wiki leaks, the institution, the people you would need to prosecute or go after are spread around the world where the united states doesn't have the power to reach them. >> host: jackson, wyoming, you are on with eric posner. >> caller: let me say that the concept of the croatians and the use of the handkerchief. what does religion have to do with international law?
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how can countries and states come together with a belief system for people who believe that the earth is flat and how can we get it moving to get rid of organized religion? that is one of my big questions. >> host: any answer for that caller? >> guest: at a more general level, what the caller's question illustrates is diversity of opinion not just in this country but around the world. this is one of the reasons it is so difficult to get together and agree on international law. any kind of legal enactments assumes the majority -- even within a particular state where there is a similar value or interest it is hard to get dramatic legislation enacted. at the international level this
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problem is multiplied enormously. there are 200 countries with wildly different views and religious views. different views about policy and international cooperation. >> guest: >> host: tell us who you are and ask the question. >> my name is david curtis and i am president of the chicago area. i think a lot of citizens have a certain degree of distress at the last several supreme court appointments where democrats seem to be aligned on one side and republicans are aligned on the other side. my question to you is to what extent is this really knew? to what extent do you see it being increased and to what extent is that a problem? >> guest: i agree with you that this is a worrisome trend. it is not really new.
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there are examples historically where presidents nominated and ultimately appointed supreme court justices for political reasons. most famously fdr who got justices appointed to endorse the new deal which up until then had been received pretty skeptically by the supreme court. the problem has gotten worse since the 1970s. in the 1970s under chief justice warren became more aggressive about advancing political or ideological view about the meaning of the constitution and became more aggressive about state law. this created a political backlash most famously in rover's is way. people are more conscious of the supreme court and began to believe essentially that if supreme court justices of their
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party were in the majority, their ideological views would prevail in the political arena. this accelerated with the bork nomination in the 1980s. there is this review that because these justices have power to strike federal and state statutes it is important to have justices in place -- there's no way out of this unless the supreme court decides on its own to be less aggressive about striking down statutes. >> host: this tweet from the republican. posner justifies torture on cost-benefit analysis but whose analysis is used? anyone who justifies torture.
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>> guest: i should comment on that. okay. justifying torture and cost benefit analysis is not quite what we were trying to do in this book. what we were interested in understanding is why people regarded coercive interrogation and torture as so much more horrible and shocking than other things the government does which are not nearly as controversial. putting somebody in jail for life is a way of imposing a tremendous amount of harm on that person and we tolerate it because the benefits are greater than the cost. the costs to that person are quite large but the benefits to society are large as well. if you take that logic and applied it to torture it is the same sort of analysis, just that the empirical question of the effectiveness of torture and the
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second order effects on people are much more complicated. to be clear, i don't think the bush administration ever did a good job justifying torture and i am not persuaded that torture was an appropriate -- in the last ten years. in the book we are addressing the more theoretical question which is what is wrong with it if the government is allowed to put people in prison? another example under the obama administration it is considered okay and not controversial to kill people without giving them a trial and traditional procedure of protection that precede the death penalty. except for extreme forms of torture killing a person is worse that torturing him and some cost-benefit analysis is used to justify the practice. i find these views puzzling but having said that i understand torture is an extremely ugly
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practice. certainly not something you would want to do unless you are in an emergency and there is an immediate threat to a large number of people and even then there are strong arguments that it won't be justified. it harms worse than whatever short-term benefits it might have. maybe by uncertainty might be untidy but that is the best i can do. >> host: back to your book "terror in the balance: security, liberty and the courts" when the government makes mistakes judicial intervention cannot improve matters. >> guest: taken out of context that might sound more critical of the courts than i am. the problem which has been pointed out by supreme court justices and many other people for many decades is that during wartime the courts are in a
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peculiarly difficult position. justice robert jackson made this point during world war ii in a famous case. it is hard for the judges who don't have military experience or usually much foreign policy experience to be able to second-guess the government when the government says we have to put those people in jail or we have to send troops in that location or these harsh tactics are necessary. the tension or military trials or what have you. the tradition in this country up until maybe the last ten years is that the courts are silent during war. they are not willing to tell the executive certain wartime tactics are unjustified. you mentioned earlier to me that i said that the courts didn't do much in the last ten years. that is a little bit of an exaggeration. they did more than they had done in the past. they did review and criticized
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executive policy much more than in the past but they ended up not issuing decisions that cause change in executive policy. the judges r. judges. they are used to interpreting contracts and addressing race and sex discrimination and the country is at war and they evaluate internment policies. they don't feel they are qualified to do that. >> host: art from north carolina at e-mails to you in connection with your analysis of the rise of the executive what role does the parallel rise of independent agencies like the fcc, sec etc. how do these agencies and effort from various government departments like the commerce department and agriculture department etc.? >> guest: a very good question. many people won't know the legal
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background here but very briefly, one of the features and a rise of the executive is the growth of the bureaucratic state. before the roosevelt administration most of the things are problems, pollution and so forth were dealt with by state governments and in the last 50 years the federal government has to a considerable extent taken over. one of the issues in the roosevelt administration and since then is who in the federal government should run the agency's that do these tasks and ultimately most of the agencies like the epa are controlled by the president. the president appoints the head of the agency. there are certain independent agencies and the most famous is the fed where the president has less control because he cannot remove the people.
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how do these fit in? they are constraints on the executive relative to a world in which these independent agencies did not exist but relative to where we were 50 years ago, they tend to enhance the president's power because the president has a fair amount of power over independent agencies as well as ordinary agencies. >> host: another question from the studio audience. , to you are and what your question is. >> my name is ed that and i am from cleveland, ohio. my question, i hope you will comment on it. i don't know whether you will or not but i am wondering about arab spring and the people's movement in the middle east. sometimes we are intervening and other times we are not.
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tea >> guest: international law doesn't really say anything about the development from the u.s. perspective. the arab spring is a matter of policy. the u.s. government wants to promote democracy but at the same time is afraid that if it puts pressure on the authoritarian leaders of these countries the country will collapse into chaos and anarchy and that is worse than an authoritarian system. some might say human-rights treaties have something to say about the arab spring. it may be the case that the pro-democracy people are influenced by human-rights treaties. more likely that they simply find the west -- western
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institutions like the rule of law more attractive than the authoritarian system in which they live. >> thank you. we are live in chicago with professor and law professor and author eric posner for are monthly in depth program. next call is from sherman oaks, calif.. go ahead. >> >> caller: my question relates to climate change and international climate justice. has any attempt been made to your knowledge to determine in approximately what future year or decade the united states contribution to accumulated atmospheric carbon dioxide will no longer be the single largest accumulation from one nation as its certainly is now after so many decades of our being the greatest national heat better, until which time i suggest our nation has an obligation to take
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the lead in reducing fossil energy use, pioneering dramatic energy efficiency and green energy measures and technologies and organizing a global response to climate change which the u.s. so far has emphatically refused to do clearly thanks mostly to the republican party's climate policy irresponsibility. >> host: we got your point. professor elizabeth gould 18? >> guest: i agree with the caller's general view. china will overtake us. that was not the deck of the caller was trying to make. the united states has made a substantial contribution to the problem of climate change and should try to read the response.
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i agree there should be in an ideal world a treaty that would result in a reduction of greenhouse gas emissions at a powerful level. i agree also the republicans drag their feet and that is quite unfortunate. the problem is a climate treaty won't work unless china, india, brazil and other huge industrialized nations participate. they don't seem to be willing to do that. that is the problem. why aren't they willing to participate? they are willing to receive money and subsidies to reduce but they are not willing to cut back on their own on climate emissions. why is that? the reason is not denial -- they have not tried to deny climate
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change is a serious problem caused by humans. they have other priorities. if you have been in beijing or any other major chinese city and you look around and you see immediately this massive pollution it is particulate matter. you can see very far and it is hard to breathe and open your mouth. to the extent the government wants to adopt policies that will garner support from the public the immediate thing to do to get a political payoff is reduce that type of pollution rather than greenhouse gases which are invisible and have a long-term effect. this is a problem. i wish i had a solution to it. the u.s. cutting back on its own is not going to address the climate problem in any significant way. >> host: >> host: in your book "climate change justice" the know where this was taken? >> guest: i don't. it was chosen by the publisher
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but it is a great picture. >> host: in your book you read this. we strongly -- you say our argument is unusual. we strongly favor a climate change agreement especially because it would help poor people in poor nations and we also favor redistribution from the rich to the 4. at the same time we reject the claim that certain intuitive ideas about justice should play a major role in the design of a climate agreement. >> guest: the popular debate in the united states the issue is climate treaty or no climate treaty people don't go into how the treaty should be designed but in the academic and popular debate in other countries there is a strong debate over who
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should pay. which countries should have the greatest version? there are two basic claims. one is that the u.s. should bear a disproportionate burden because the u.s. is responsible for the majority or substantial amount of greenhouse gas emissions so far. the other is the u.s. and other wealthy countries should bear more of a burden because they are rich and others are poor. one of the arguments in the paper and in the book is these claims, while intuitively appealing, are much more complex and problematic than they first appear. so for example, if you make the rich countries pay it is less likely they will participate. there is a problem that general matters and turned to trees when it is in their interests. if they're willing to enter into a climate treaty because down
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the road the cost of -- benefits of avoiding climate related disasters are greater than the short-term costs of reducing emissions but then you say by the way you have to contribute a few extra billion or trillion dollars because other countries are for the country won't join in to because countries don't do that. they entered trees that are in their national interest. that is how politicians get reelected. the u.s. and other countries read distribute wealth to other countries through foreign aid and that is a good thing but that is a much better way of helping countries and through our climate treaty where the u.s. takes on more of the burden. with foreign aid you can deal with problems of redistribution that have been quite challenging. for example one of the problems with foreign aid is you give money to a foreign government
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and the foreign government is corrupt and ends up in the pockets of officials rather than food for poor people and people tried to come up with various ways of addressing that. we redistribute wealth through a climate treaty by in effect giving subsidies to a foreign government then you are back to the initial problem which is that the money might be lost to corruption rather than the benefit of the people in that country. it is best to keep separate these different goals. one goal, deal with global warming. the other goal is help poor people in other countries. if you adopt different policies for each of those goals. >> host: this is booktv's in depth program. our offer is law professor eric posner. next call from freeland, michigan. >> caller: thank you very much. i would like to ask about
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something you talked about a little bit before about the supreme court and politicizing of it. legislating from the bench is the cliche. since these people are basically making political decisions, they are not really above politics or anything like that, shouldn't they and other people have suggested this, shouldn't they basically be elected like other politicians? would that make more sense? i was wondering what you think of those kinds of ideas. thank you very much. >> guest: in most states judges are elected including the high court judges in those states that make constitutional decisions and i do find the idea of selecting judges appealing or at least not as outrageous as
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most lawyers do. it is appealing for the reasons that you give. i don't think it really worked for the national government. for one thing we have to amend the constitution which would be probably impossible to do. for another thing i think there is a virtue in shielding the judges from popular pressure. otherwise although i do agree they are politicized they would be even more politicized if that happened. a more modest, sensible reform would be to reduce their term from lifetime tenure to 12 years or something like that which is the norm in places like europe. lifetime tenure is very unusual around the world. that would require a constitutional amendment and is probably unrealistic but that is the sort of reform i think would be effective.
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>> host: what do you think the seventh district judge richard posner would think? >> guest: i don't know. i am a little wary about saying what i think his views are. i don't know. i have to pass on that question. >> host: here are eric posner's book. in 2000 he wrote "law and social norms". in 2009 "the perils of global legalism" came out. "the limits of international law," "new foundations of cost-benefit analysis," "terror in the balance: security, liberty and the courts" came out in 2007 and then he co edited a book called law and justice, "climate change justice" and "the executive unbound: after the madisonian republic" came out in 2010. what does law have to do with happiness? >> guest: it doesn't have that much to do with happiness. it has more to do with
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unhappiness. there is movement going on which is quite interesting, the government when it passes a law or adopt a policy has to think of how it affects people and often the method they use is called cost-benefit analysis. they figured out how much people would be willing to pay for this and how much they would be willing to pay to avoid this. the standard example is let's shut down some paper mills because they are issuing pollution that is causing harm. in order to decide whether to shut them down or continue to operate what we look at is how much people are willing to pay to avoid the harm and compare that to the higher cost of paper. happiness approach which has been proposed by some economists is you shouldn't look at how much people are willing to pay because ultimately that doesn't measure what matters which is their happiness or the subject of well-being which is the sense
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of well-being that a person has because their life is going well. and the way subjective well-being is measured is through surveys. people are asked how things are going on a scale from 1 to 10 and they might write down 7 or 6 or 5. and are they living near a paper mill or are they living near an airport? through statistical analysis, you can figure out these sorts of things that promote people's happiness and the sorts of things that don't. in the united kingdom they have been quite aggressively pursuing this approach. it is hard to know what is going to happen but it is an interesting alternative to cost-benefit analysis which many people have criticized. >> host: who is the r co-author and what is your relationship to him? >> guest: he is currently the
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administrator for the office of information and regulatory affairs which is an office within the office of management budget. he is a political appointee of president obama and works from the white house and he oversees what the regulatory agencies are doing is one of these people who has been a promoter of cost-benefit analysis although he has quite a nuanced view. we have written a number of papers together at the university of chicago and we spoke together because we found the happiness literature quite interesting and we wanted to explore its implications for law policy. >> host: have you had a relationship with president obama? >> guest: i don't have a relationship with him. i went to law school with him so i knew him of a little bit there.
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i didn't see him much in the hallways but i did run across him once in awhile on the playground. i talked to him every once in awhile but we are not house or anything like that. i wish him well but i haven't gotten a christmas card from him or anything. >> host: martha lives in belgrade lakes, main in the summer and charleston, south carolina in the winter. sondra d. a. o'connor was an international us regarding law. she advocated looking at law for other countries for certain cases before our supreme court. what is the stance of the present supreme court justices regarding this? what do you think about looking at international law when we put an eye toward u.s. law? >> guest: this is a big controversy. current justices to support this include anthony kennedy, justice
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prior and i think sonia sotomayor. maybe one or two others. the liberal wing of the supreme court. we wrote a paper about this, one of the papers we wrote. i don't think it is a bad it as long as it is done in a prudent and narrow way. just so everybody understands the controversy hero because high-profile cases, the supreme court and usually justice kennedy would said this particular practice like executing people who commit crimes as juvenile for executing people who are mentally retarded is something the united states does but no other country in the world does this so in interpreting the eighth amendment which pascual and unusual punishment we should take into account the norms as they prevail in other countries.
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this upset a lot of people especially those who support the death penalty partly because this methodology was introduced in such hope for a -- high profile cases that become instantly controversial and it is in tension with the idea you should interpret the constitution according to the understanding at the time that it was ratified. but the fact is it is useful to look at what is going on in other countries. it is useful form of information and in the united states it has involved a time in another way so every state is sovereign in a certain way. each state has its own court system. ..o resoft difficult -- resolve difficult questions will look at what other courts are doing in other states, and this is a form of borrowing foreign law, at least looking at what other sovereigns are doing in order to help resolve cases under our own law. and i think that's fine as long as, you know, it doesn't just become pretextual for producing an outcome that you support for
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ideological or political grounds that you don't, you don't want to admit. >> host: eric posner, this tweet from w. kennedy: what's your opinion of the court ruling on citizens united? [laughter] >> guest: well, all right. so this is a little bit outside of, you know, my field. so i'm hesitant to say much about this. the citizens united was a supreme court case which struck town certain campaign finance laws on first amendment grounds. i'm not a first amendment absolutist. i think there are situations where you want to constrain speech. one that we're all familiar with and have no problem with such as fraud and so forth. and one is a little more sensitive about doing that in the electoral setting. but the people who are worried about money corrupting politics, you know, they've got a point. you don't want to assist them in which the various wealthiest people because of their wealth have more influee th
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have more influence than other i people do., yo that said, and i hate to, youeig know, my mind is being untidy again, but on the other hand when the government tries to interfere with the way people to spend their money in order to promote ideas, you know, you can have bad outcomes. so "the new york times" is a wealthy cooperation that's promoting ideas all over the place. we probably don't really want the government to regulate them even though it is a fact that they're wealthy, they have outside influence, and so the opinions of the people who happen to work there and the owners probably have more influence than those of ordinary people. >> host: next call for eric posner comes from indianapolis. good afternoon. >> caller: good afternoon, wonderful. professor, i can listen to you talk all day, you're very interesting. [laughter] but i do have a comment to make regarding at the beginning of the interview when you talked about how the increase in crime,
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um, was -- well, back in the, i guess, in the later days, um, increasing -- the crime level was low because people in a small town knew each other, and so there was, um, the inability to operate, you know, engage in criminal activity because you wouldn't be found out. i would say that that's not necessarily, that doesn't hold up because you have instances in inner cities where, you know, crack houses and criminal activity are operating in broad daylight. and people know who the criminals are. but the thing is that they fear retribution from these criminals if they cooperate with the authorities. and they don't feel proper protection from the authorities if they were to speak up. can you speak on that a little bit? >> host: thank you, caller. >> guest: yeah. that's a terrific point. and, you know, i was speaking in
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kind of generalities. i think it is true that in the 19th century in a small town there wasn't the sort of crime problem that you, that you see today. although there could be all kinds of horrible things going on, you know, it's not illegal. like, you could have, for example, horrible racial discrimination. so whatever the norms of the town were would prevail because, because people would sort of watch what each other is doing. but you're quite right. in an inner city today, these sorts of things can be reversed. and this is also an explanation for why organized crime, the mafia and so forth has often been very powerful within cities. sometimes organizations like the mafia will supply services to people that they're not getting from the government, so they'll provide support in return and not inform on the criminals. and as you point out in other cases the criminals are just so well organized and so powerful that they can intimidate people
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and prevent them from cooperating with the authorities. you know, it's a complex, it's a complex problem, and i acknowledge your point which is that in my earlier statement i excessively simplified the reality. >> host: eric posner, how to you choose what you write about? >> guest: it's, you know, it's what i'm interested in, what seems important and what i know. so if i'm familiar with a field already, it's more likely that i'll be able to make a contribution. >> host: next call comes from portland, oregon. good afternoon to you. >> caller: hello, professor posner. say, john mccain delivered a speech on the senate floor regarding torture, and then he wrote an op-ed piece in "the washington post." in it he said that it wasn't
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torture, you know, that got us major leads in the intelligence community to find osama bin laden. and then he continued where he said, you know, torture, a person will say anything his captors want to hear whether it's true or false if he believes it will relieve his suffering. did you talk to john mccain? would you comment on his position, and also doesn't this, doesn't this put in harm's way american military personnel who are in the combat theater in jeopardy if they are taken as prisoner? thank you. >> host: thank you, caller. >> guest: yeah. yeah, you know, there's, yes, there's debate about whether
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torture contributed to osama bin laden's capture. it's not a very edifying spectacle. i think the answer is, you know, we don't know, you know, maybe not. i have no idea personally, and as i said earlier, i don't think the bush administration ever made a good case that torture was necessary. and i think part of the problem is that the bush administration relatively early on sacrificed a lot of its credibility, and so when it made certain assertions, one didn't know whether to believe it or not. i don't agree with mccain's argument that a person will say anything under torture. i just don't think that's right. you know, people are constantly being threatened by criminals, you know, what's your atm number? if you don't tell me your atm number, i'm going to hurt you. what to you do? you give him your atm number. so at least intuitively it seems to me that it's reasonable to
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believe using force to get information from people is going to work. maybe not very often, maybe just sometimes. again, i don't know, these are complicated questions. i've spoken to some people in the u.s. military who do interrogation including a colonel who's the head of, i think he's the head of interrogation in the air force. he's very much against torture. he thinks it's horrible, he made very powerful argument that it should never be used under any circumstances. but he did say, you know, u.s. forces sometimes when when, you know, they weren't authorized to will, you know, beat up people in order to get information out of them. it works which is why they do it, right? which is why it's a problem for him and why he has to work very hard in order to persuade the people that in the long term it's much better not to use force, it's much better to use rah port. so these are problems i don't have any particular insight in, and i'm happy to defer to the
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judgment of john mccain or this person i spoke to in the army or experts. and i counderstand most experts -- i do understand most experts don't think that torture is used very well. i think it might be used in the most extreme circumstances. and john mccain agreed about that. he was asked, well, what be you have a ticking time bomb situation? he said, oh, well, in that case maybe it would be justified, and that's sort of my view as well. >> host: so is that the same cob collusion you -- conclusion you reach in "terror in the balance," your 2007 book? >> i think i've become a little more cautious than i was in the book. the book was written in a somewhat more abstract level than defending the bush administration. we were mainly interest inside the question about why -- what was interesting about mccain's view was he thought torture should be illegal, nonetheless, he thought it was prop tore use in the extreme circumstance of the ticking time bomb.
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and that's kind of puzzling pause if you tell people it's illegal, they're not going to use it. why not tell american officials it's illegal except when you have the ticking time bomb? so this kind of academic issue was really what the focus was of the book. and in the book i think in retrospect maybe we were a little bit too casual about the, you know, the difficulties of the issues. which i do -- i think it's difficult and, you know, it's not the sort of decision i would want to have to make. >> host: william mcrae from seattle e-mails in to you: professor posner, you claim the bush administration didn't exercise any more executive power than other administrations. however, you exposed your allegiances when you failed to mention the massive number of cheney/bush signing statements. those absolved them of legal liability from the bills the president signed. why is this not a form of tyranny of the executive?
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>> >> guest: yeah. i actually wrote a whole paper about signing statements. not the sort of thing that people would want to read, it's very technical. but to answer the question, signing statements are a funny little tempest in the teapot. they don't actually have any legal effect as a practical matter, so if somebody breaks a law and the person's brought before court and the judge, you know, is told here's the law, and by the way, the president issued this signing statement saying this law's invalid, the judge would ignore that. it doesn't have any legal standing. so what a signing statement is, you might think of it as kind of a memo to the executive branch, you know, this is the president's understanding of what the law is. and you and the executive branch take this into account as you go about your business. because the signing statements that the bush administration issued are kind of vague, i
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mean, they're a lot like sort of rhetorical or political exercises, i don't know of any incidence where you actually could trace some kind of abuse of executive action to any particular signing statement. so the bush administration issued these signing statements. they're troublesome in some respects. in some case they were based on very aggressive interpretations of presidential power. but, you know, bush got these interpretations, or his lawyers got these interpretations from previous presidents. so you can find the same interpretations and signing statements issued by president clinton or president reagan. it's in that sense there's more continuity here than rupture. >> host: next call comes from paynesville, ohio. you're on the air. >> caller: yeah. they just arrested a serbian war criminal who committed crime against bosnian citizens in bosnian territory in violation of bosnian law, but instead of having his trial in bosnia,
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they're having one in the netherlands with a very possible judge and jury that has no bosnian -- which seems like a big overreach. if there isn't such a law, shouldn't there be a law that says you can't have an international war crimes trial without having a local one first? is. >> host: thank you, caller. >> guest: you know, that's a very complex and important question, and the court that is trying this fellow whose name is mladic is called the international tribunal for the former yugoslavia. the established back in the 1990s during the yugoslav civil wars, and it was established precisely because there was no domestic, there were no domestic trials of people like mladic, and the reason there weren't is because there was a civil war going on. so the bosnians who are committing war crimes or the zerbes who were create -- serbs
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who were committing war crimes were committing crimes in other countries, right? the serbing didn't want to prosecute their own people because they thought, maybe they approved, maybe they didn't approve, but they were their guys. so this tribunal was set up precisely in order to insure that these people would, ultimately, be prosecuted. now, the tribunals are models on the nuremberg tribunals. there's no jury, it's just a bunch of international judges. and a number of people are concerned that when you have an international court like this, you're not going to have adequate procedural protections with the result that, you know, maybe innocent people will be convicted, although it's very hard to believe that mladic is innocent. that's the trade-off that you make. this is, you know, right at the heart of the debates about international law. if you leave everything just to the countries, the countries may not do the right thick. they may not -- thing. they may not prosecute war criminals who have caused harm to people in other countries.
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but if you have the international system do it, then people, their trials might be influenced by fact factors that are unrelated to what they actually did, there might be international politics or international power relations that influence the outcomes. >> host: now, professor posner, either in the limits of international law or the perils of global legalism, you wrote about nuremberg, and, essentially, paraphrasing you said the successful. but at the same time you said the settlement with tokyo after world war ii was not as successful. why, what was the difference? >> well, you know, as a matter of sort of historical understanding, i think most historians think nuremberg was successful and the tokyo tribunals were not success. why? because the nuremberg tribunals went on for much longer, there's really just a couple trials coming in after the war in japan.
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there was a very negative reaction to the tribunals in japan which suggests that, you know, made people think that it was just victor's justice. and the japanese were not imprettied by these -- impressed by these tribunal, they were not sort of persuaded that japan had done anything worse than what the other countries had done. now, you know, the war about nuremberg is, in fact, the germans were impressed by the tribunal. actually, at the time they weren't. they thought it was just victor's justice as well. but i think over the years the germans have come to see that the nuremberg tribunal was justified because the nazis were uniquely horrible. the japanese did a lot of horrible things, but not on the scale of the nazis. and in many ways what japan did was the sort of thing that countries had been doing, you know, for centuries. and it was -- one thing that was troublesome about both nuremberg and tokyo tribunals is the
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allies provided an advance that we would not be prosecuting, right? so even though americans and british and certainly the soviets committed war crimes, that was just off the table which did make it look like victor's justice. i think that was less of a problem with nuremberg because the nazi really did seem uniquely bad. but it was more of a problem in japan where, after all, americans had dropped the atomic bomb. one could make the argument that, yes, the japanese started the war, but in terms of the atrocities committed during the war, both sides were in pretty bad shape. >> host: asheville, north carolina, please go ahead with your question or comment for author eric posner. >> caller: yes, thank you for taking my call. i have two questions. the first question is leading up to the football bubble that blew -- to the financial bubble that blew up in 2008, the rating agencies were rating all this paper as aaa. everyone knows there's only so
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much commercial paper that can be rated as aaa. my question is, why were none of these people that were doing this charade ever prosecuted? and my second question is, what are your views on the recent supreme court decision that allows corporate entities to, basically, contribute boundless money to elections, political campaignses? i personally -- >> host: thank you. asheville, thank you. professor posner, talked about the citizens united case a little earlier, i think that's what he was referring to. >> >> guest: right. you know, the short answer is it's not clear they violated any criminal laws. the people who raided -- i mean, there are lots of, you know, actors involved many of whom did things that were maybe unethical
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or certainly dwell. but if you take the rating, you know, they were giving their opinion on how safe they thought these assets were. it's hard -- there's no evidence that they knew that the assets were riskier and, nonetheless, gave them very high ratings. the best evidence is that they were full of, like, virtually everybody else, most people thought these assets were safe. most individual, most investment banks, governments, you know, everybody. and they thought they were safe because they believed that the models that had been developed to evaluate their riskiness was accurate. >> host: your co-author in "the limbs of international -- the limits of international law," jack gold season smith. who is her? >> caller: he used to be a professor at the university of chicago law school which is how i know him. he was in the, he was the head of the office of legal counsel in the bush administration, and he's, he's most well known for
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having, um, repudiated the torture memo that had been issued by the department of justice which had held that certain forms of coercive interrogation were, did not violate u.s. law. and also for -- repudiating may be too strong a word, but i guess withdrawing and sort of advising another memo that had to do with surveillance. >> host: this e-mail from austin williams, could you please discuss the concept and practice of federalism as it has changed over time? does the current desire in some quarters for a return to federalism represent a healthy trend to increase freedom or a complete misunderstanding of our history? >> guest: federalism is the principle that the states rather than the national government will, you know, control a substantial amount of u.s. policy. of course, the national government's going to control defense and regulate the
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national economy, but people think that the states should, you know, regulate as much as possible. so, you know, one example would be abortion. federalists think states just come up with whatever abortion policy they want from a complete ban to liberal rules, and a person who's critical of federalism might say, well, that's the sort of thing the national government should determine. so federalism was a very important principle back when the constitution was ratified in the 18th century. my view is that it's much more difficult to sustain in modern times because, basically, as a result of technological changes and communication and transportation, we have more of a national market. we have more of a nation than we did at the time. so whenever a state regulates, the problem is that its regulations will cause perverse effects to neighboring states. that is one of the costs of federalism. that's more of a problem than it was in the 18th century, and i
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think this is just a trend that one has to recognize. now, having said that, in many parts of the world country are sort of actually coming apart. people don't like it when they're regulated by a distant government which seems unaccountable, and that leads to a resurgence of federalism. my view, though, is that in this country this type of feeling is probably pretty limited. there have been eruptions of this. there was one at the beginning of the reagan administration as well. but the fact is that most of the problems, the things that we're really worried about, health care, the financial systems, security, the environment are things that have to be regulated at the federal level because they are nation, they're national problems, they're not problems. >> host: are you a member of the federalist society? is. >> guest: no. >> host: was that founded at the university of chicago? >> guest: no, it wasn't. i'm not really sure about the details, but i think it was founded by a number of professors from different
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universities, and i guess it has an office in if washington. it's not part of any particular university. >> host: next call comes from fort mojave, arizona. hi. >> caller: hi. professor posner, i'd like your comments on subject matter of activity that creates criminal activity or tends to do something to accelerate criminal activity, and i'm thinking specifically about drug laws that criminalize possession and use of chemicals that in and of themselves is not harmful per se, it's not drug possession and use, it's not like murder or theft or rape or something like -- and no other person is harmed by the specific use of drugs. and, in fact, as i understand it, it's not -- one needs not to prove that when one is under the influence of a drug, that that person is at that time, that's some kind of a state of
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immediate threat to the health and safety of the public. so, and i particularly would like your focus on how this might operate in minority sections; black ghettos, hispanic communities where these kinds of problems are accelerate ed, from my understanding. >> host: professor? >> guest: well, again, you know, it's not something i've done much work on, and i'm a little hesitant to give my views which are not particularly informed. but, you know, i think the point that the caller is making is that drug use is often called a victimless crime. it might harm you, like cigarette smoking, but is that a reason to make it illegal? you know, i don't know. i think it's a tough problem. we have an era of prohibition in
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this country which is based on the same theory as drug illegalization. although we generally let people do what they want, certain types of addictions maybe are so harmful to the people that the government should get involved or maybe they have these third party effects that may lead to destruction of the families and the communities. i don't have strong instincts about whether drugs should be legal or not. i guess i'm conservative enough to think that unless we have, you know, very powerful evidence that drug regulation is, you know, extremely harmful, we should probably continue with the current system. i am uncomfortable about the very long sentences that are given to people, however. >> host: i think it was in your book, "new foundations of cost-benefit analysis," that you wrote about marriage and gay marriage. and doug robinson from new york city e-mails in. the 1996 federal defense of
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marriage act provided that no state would be required to recognize a same-sex marriage from another state. and also defined marriage for federal law purposes as opposite sex. if we are a country which protects the rights of the minorities over the majority, doesn't this act seem unfair and violates the constitutional rights of lesbian and gay americans? >> guest: yeah, you know, i think the act is unfair. i didn't support it. i don't really see the reason for it. i think states, this is the sort of thick -- i mean, i think this is the sort of thing that states should decide on their own taking into account the values and needs of people living in the state. i think it's a little glib to say, well, you know, because we protect the interests of minorities in this country, it follows that you have to allow gay marriage because, you know, as a majority of constitutional law, that's not the case. often we do not protect minority
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interests. the minority interests have to be powerful enough and the group lacks political power to insert interest in the legislate they've arena. in fact, gay and lesbian groups are politically quite powerful, they've been very success. , and i think there's reason to believe they will continue to be successful. so, you know, my instinct is that there's not a strong argument for judicial intervention, but, you know, it may be justified. it's hard to say. >> host: next call for eric posner comes from bellville, illinois. good afternoon to you. >> caller: good afternoon. thanks for taking my call. professor posner, i was one of your students at the george mason university law and economics program in california, and you were excellent. and it's great to hear you again. my question is, what is your opinion and critique of the international criminal court,
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and do you think that we should ratify the treaty and be participants in it? >> guest: okay. so the international criminal court is a court that was set up in 1999. it went into operation in 2002. and what it's supposed to do is, um, be a court that can hear charges against anybody anywhere in the world for violating an international crime. genocide, a violation of the laws of war and so forth. i've been critical of this court. i understand the humanitarian impulse behind it. it's just not clear to me that it makes sense or that it would work in the manner that is intended. and here is why. so when we have domestic -- we have criminal courts in a domestic system. and i think to a degree that people don't usually recognize these courts rely a great deal on discretion, on the discretion
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of prosecutors, on the discretion of judges, on the juries. um, you can't set up a system of rules that's just going to operate like a machine on its own. you need people to make judgments. and the reason the criminal justice system in the united states works, you know, pretty well, quite well by international standards, is that, you know, basically, people agree on what should be criminal, under what circumstances maybe criminal behavior should be excused. and so the system works relatively smoothly. so a court system is only effective if it's surrounded by a network of institutions staffed by people who have, you know, basically, similar values. and you need other, you need a legislature to change the law when they're no longer working so well, and you need an -- it's very complicated. and, you know, it's taken centuries for this kind of system to evolve. well, there's no international government, so the international criminal court is just kind of
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floating there by it. it has its own prosecutor as well as it own judicial system, and the -- because, you know, international crimes are being committed constantly everywhere, all around the world, the prosecutor, you know, unavoidably has an enormous amount of discretion to decide where to focus his energies. and this is very dangerous because people in different countries will think that they're being picked on. there's no way, you know, to show ha you're acting in a dis-- that you're acting in this a dispassionate or impartial way. so you can create very problematic political tensions, the institution can, because it's not tied to, like, a democratic political base. and so the problem has already arisen in africa. so far, you know, the international criminal court has only pursued prosecutions in africa. now, in many cases the countries actually invited the court, but once the court has gotten involved, it's been very
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difficult for the country to say, you know, we've changed our mind. amnesty might make sense. and african countries are now saying why are you picking on us? why don't you go after the americans or europeans or chinese? this is intended to undermine the legitimacy of the court. i think under these circumstances there's probably a good reason for the united states not to join, although i think the u.s. has been sensible and pragmatic so far in giving support to the international criminal court in situations where u.s. policy interests are at stake. ..
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appellate court of the ninth circuit. as a result of the filibuster he withdrew. i don't have any particular the use on his qualifications. he seems qualified. i certainly don't know the details. but the broader question is whether it is troublesome that the defendant is using the filibuster to prevent the president from nominating in getting appointed people who he wants and to the majority of the senate support. and at think the benefit of the filibuster is it means that on average you will have more moderate judges. fewer judges who are at the political extremes. that is probably a good thing. the cost of the filibuster isth that probably some highly qualified people are not goingyo to be appointed to the courts,o
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and that is troublesome. t i guess in the end i don't findo the judicial filibusterlibu bothersome. >> host: please comment -- and this is another tweets. please comment on the patriot act and judicial review or lack thereof.he >> guestr: yes. the patriot act was a statute enacted in the wake of nine / 11 which gave the government's certain powers to investigatein and pursue people that it had not had before. it is kind of a grab bag of powers to engage in certain types of searches and so forth.s a lot of these things were things that were justified by te a logical changes.ha the switch from analog to digital technology and so forthr some of them were more so rth. troublesome. i thought at the time that it was justified for the simpleem reason that aftere september 11th it seemed to mef that it suggested there was more of a threat to americans from
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foreign terrorists that there have been trori it had not been prevented. it became reasonable to think w. should give the government moreo powers to go after suspected terrorists then the governmenthh had before.ement it's very hard to know how h exactly to balance liberties and security, but it seemed likely e that the balance had not beenl set correctly. had and so, you know, i think of thi whole the patriot act was sensible. one could certainly quarrel wit details about it. at that time i think people were troubled by it. a lot of wild accusations that it was w i don't believe that any of tha' panned out. h i think the court said, youi in know, this is fine. the patriot act, it doesn't it infringe on any constitutionalon rights. >> host: next call for ericcoe posner comes from rockaway beach, ore. high. >> caller: high. my question is about article one section nine.
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it gave our government the ability to create money in 1913. we prioritize that by creating the poor reserved. since then the central bank has. been determined in mullen saidbe -- determining monetary policy o could be to much -- democratize this policy? the money power should belong tm the people and not the privatepi banks. since we are heading toward thes imf style policy with tax onwads health benefits in the social security, and education. >> guest: yeah, that's a great question. i just taught a class on the federal reserve board, so this stuff is in my mind. and i can think about it a lot. i don't think it's angry to say that monetary policy was privatized because of the federal reserve board, it's a public institution. the members of the board of governors are all appointed by the president with senate
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confirmation. they are the people with most of the power. the president of the federal reserve bank, that's more complicated. i don't want to go into details although i suspect the caller may have those people in my. banks have some influence over their appointment. the fairest conclusion is it's a legitimate public agency. you might say, the question might be, well, should congress make monetary policy rather than as independent agency? that would be more democratic. you know, that may be a good idea. in great britain, for example, they have a central bank but traditionally it have to get permission from the cabinet, which is responsible to the parliament. so it may not, it may work. the usual concern is that elected politicians are at least worried about the next election so if they have control over monetary policy, they would
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inflate the money supply in order to great kind of an artificial boom, just during the election. but the result, the economy will boom briefly, people will vote for the incumbent. but then when you do that over the long-term you cause serious problems with the economy. that was the reason for getting a story to an independent agency in the first place. but it's possible that congress would behave more responsible than that. we don't know because it's never been tried. before the federal reserve act, monetary policy kind of decentralized, but i guess i would be nervous about doing that. i think on the whole, the federal reserve board has done a pretty good job with world war ii in managing the monetary supply. it hasn't made series enough mistakes to justify abolishing it and trying some of the institutional approach. >> host: newport beach california, you're on with author and law professor eric
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posner. >> caller: my question is about torture. torture has been around since human history, but hear people talk about it today in light of the war on terror, it seems to me that it is treated like a new and unfamiliar activity. and my question is, how could this be? it seems to me to be a pretty well understood activity, and i'm wondering why there's so much debate about it. my own view is that the application of it is basically for punitive reasons, and that the intelligence values are simply a smokescreen to hide this from roy vicious motives, of people who want to do that. i would like to which you have to say about it. thank you. >> guest: it's possible. you know, if it doesn't have any value, as i said before, i don't really, it's a complicated question. if it doesn't have value for
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actually preventing lots of people from being harmed it should be abolished immediately. and it is hardly possible that people, maybe in other countries more than in this country use torture in a punitive way rather than due to obtain information. i don't know. my reading of history is that any practice that survived for centuries and centuries is probably, the people who do it probably find it useful. they are not crazy enough to engage in a practice that is actually perverse and makes it harder for them to govern. watch changed i think is value, and particularly since world war ii, people -- well, i would say starting with the enlightenment and and particularly since world war ii. people come to think of torture as a horrible thing to do to other people, and you know, i agree. i agree. i think that's what almost all
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circumstances the should be appointed. >> host: just to follow-up on that, this is from daniel in texas, and e-mail. would doctor posner be willing to comment on the legal reasoning of the torture memos written a john woo and jay bybee? >> guest: john wood and jay bybee, i read an op-ed about them, and it's complicated. in one sense the memos are not very good. debt ridden kind of a sloppy way, and the authors make claims about executive power that are controversial without acknowledging their controversial. and in other ways make the sorts of arguments that make lawyers cringe. lawyers write legal argument to try to be as narrow and careful as possible. but i do think that they receive more grief than justified because the executive, what they were riding a traditional
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executive branch jurisprudence, they were in the justice department. they were not judges for example. the justice department lawyers have traditionally advanced aggressive interpretation of executive power. these include people like antonin scalia who is now supreme court justice, and all kinds of people distinguished and not so distinguished going back sentries. these people tried to be good lawyers for their clients, come up with legal arguments that would justify what their clients want to do. and so you -- they could draw on this proud secular interpretation of statutes and constitutional law. law, to justify the use of interrogation. you might say this is just terrible, these people shouldn't be riding in this sort of slanted way, but then you should criticize all the lawyers in the office of legal council going back a long time. i don't think they behaved that
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different from their predecessors. during the clinton administration, for example, very fine lawyers in the office of legal council. they didn't justify torture but they did justify unilateral american military intervention in other countries which is also hard to justify based on what the constitution says, it says there has to be a declaration of war in the war powers act which says you have to inform congress to get their consent after a certain period of time has passed. the same sort of very strong arguments say these rules, but we can interpret them narrowly and light of the president traditional executive power. so, if you take that context into account, i think the number is less shocking, you know, less extreme than it appeared to people. drama this is booktv's "in depth" program. our monthly series with one author featuring his or her body of work. eric posner, law professor and author is our guest live from chicago.
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we've got about an hour left in our program today. be right back. ♪ ♪
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>> host: and we continue livee from chicago with author ericic professor posn month's in-depth. professor posner, we were justt showing our viewers some of your favorite authors and greatest influences. i want to start with one of yt r favoritest authors, nietzsche. >> guest: nietzsche, he was
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this german philosopher living in the 19th century. why is he my favorite authors? he writes beautifully and something to aspire to. he is highly critical of conventional norms and views. and when i read them in my 20s it was inspiring because you felt like you could say anything. if you felt you were right and you thought carefully enough about something, you could be, you know, you are free to make those arguments. he has a kind of irreverent streak and critical streak. >> host: what about nihilism? >> guest: i don't think he was a nihilist. and i'm not a nihilist. i do think he was skeptical about enlightenment values, and in particular a kind of
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enlightenment view that through reason we can build an institution that will solve our problems. and that, consistent with my sense of things, he articulates it a particularly powerful way. >> host: who is samuel moyne who you're currently reading his book the last utopia, human rights? tragic he's a historian and he wrote an interesting book about human rights. the book is a fairly academic book that argues that the rise of the human rights movement should be dated to the 1970s rather than to early appeared with conventional wisdom. i'm interested in human rights as an academic topic. i've been writing about it a lot so his book was a natural book for me to read. >> host: 202-624-1111 if you live in the eastern/central time zones.
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202-624-1115 for those of you in the mountain/pacific time zones. or send us an e-mail,, or you can send a tweet,, or at booktv is our handle. you list as your greatest influence, professor posner, stephen chevelle and cass sunstein. >> well, steven shavell is a harvard law professor who i had in law school, and you know come in the first year of law school you learn a lot of law and it's not always clear why one rule makes sense rather than another rule. and i would just use a very simple example. in great britain, if you bring a lawsuit and you lose you have to pay the attorneys seize on the other side. whereas in the united states if you bring a lawsuit, you pay your own attorneys he and the other pot -- of the site pays
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their attorney fees regardless of who wins. a natural thing to ask is why, which rule is better? maybe the british rule is bad and we should accept it. i thought steven shavell was very clear about the different cost of benefits. he applied the kind of cost-benefit analysis. and he writes very clearly, so i modeled a lot of my scholarship after his, although his is much more mathematical and i tend not to use mathematics. cass sunstein we've talked about before. he's just a very admirable person. he is so committed to scholarly enterprise. that is quite inspiring. now, in public he's written controversial things, and this is got a lot of attention. when you public office people get upset about that sort of thing. that's the world we live in, but for an academic it's important to say controversial things, to be provocative, to question received wisdom and not to worry
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that people will get upset at you for doing this. and i think he is a very good example. >> host: we spent the last almost two hours reviewing some of your writings. do you find yourself politically in agreement with them? >> guest: i agree with him about something. i think generally speaking is more liberal than i am. but read right where we agree about something. about climate change for example, that's something we agree about and where we disagree, you know, we're not going to write. >> host: again, show you some of professor posner's books so you can get an idea of what he writes about if you're just tuning in. "law and social norms" was his first book. it came out in 2000. "the perils of global legalism," 2009. "the limits of international law," 2005. "new foundations of cost-benefit analysis."
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"terror in the balance" came out in 2007. "climate change justice" and "the executive unbound" both came out in 2010. back to your calls, tweets and e-mails. we will start with sarasota, florida. >> caller: my name is candace. good afternoon, professor posner. my question is, international law ideas about sharia law coming into the united states and which would trump which. how would you imagine sharia law and international law and the united states constitutional law? thank you very much. >> guest: scheuer. sharia law doesn't have any legal standing in the united states. so the only law of course the courts will enforce indian estates is law that's enacted by
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legislatures, and the common law, the, a judge made law. the result of millions of judicial opinions year after year after year, interpreting previous traditional opinions. it's kind of customary law. sharia law is never quite -- either legislation or in common law adjudication. now, you know, i think is a bit of a controversy floating around. i forget the source of the controversy. it may be someone, you know, i'm cautiously said under certain circumstances sharia law might be recognized in u.s. courts. there's a very limited set of circumstances where american courts will enforce foreign law. this is pretty technical stuff, and it's pretty dull so i will keep it short. but basically suppose there's a dispute between two people in morocco. suppose those two people end up in the united states and they
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bring a lawsuit against each other in the united states. so the american court has to perform what's called choice of law, to figure what sort of law should regulate their behavior. if it's a contractual dispute should be to contract law of the state in which they bring their dispute in osha to be the contract law of morocco? and so, courts for hundreds of years have been enforcing foreign law in these circumstances. although again, usually because somebody has are both parties have very strong contacts with the foreign country. you know, generally speaking this has been uncontroversial. after all, it's too americans are in morocco and they have dispute, that start indian estates we've got the moroccan courts to apply american law. as opposed to moroccan law. moroccan law is not sharia law so i don't want to be misunderstood by that. there are conceivable circumstances where some foreign
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country has incorporated sharia law into their own law and that might be appropriate for those rules to apply to some kind of dispute between people in those countries to end up in the united states. that might be okay. i have no problem with it. i don't think any lawyer would have any problem with that. >> host: professor posner, this is from frank arena the meaning and, good afternoon, please comment on what he believes is the ever-growing creativeness of prosecutors, in particular the case of senator john edwards. >> guest: well, that seems like a loaded question, but let's see. so, you know, the question draws on a legitimate concern that's been going on for a long time in which is prosecutors have too much discretion. and prosecutors to have an enormous amount of discretion because there's so many laws out there and it's hard to do much without violating, particularly
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if you're a business or even a politician. politicians are led to receive money for the campaign, but maybe not for personal reasons, but sometimes it's hard to draw the distinction. these are tough questions and that's what you have the courts to sort them out. prosecutors, they have so much power to draw people into the court in the first place which can be a horrible experience, but it's possible we should be worried about what they are doing. is a very complicated debate. i don't know enough about the edwards case, but what i've read in a newspaper would suggest that the argument that he violated a law to regulate the use of campaign donations. but i don't know enough about the facts of the case to comment on a. >> host: next call comes from las vegas. >> caller: good afternoon. yes, professor posner, i'd like to ask you about, there's a book called the unspoken alliance by an author named sasha.
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in fact, booktv did a big thing on him about six months ago. and i don't know if your family with this book but it basically documents the history of israel's support of the apartheid government in south africa, mostly for the '70s, the '70s and '80s. and it demonstrates that he was the first person to go into the south african archives. he found out what was really going on between israel and south africa, and he maintained that israel was trying to sell a nuclear bomb to south africa via sharon peres in 1973 come and that fell through because basically israel was asking too much money for it but to all kinds of huge -- >> host: what's your question for professor posner? >> caller: especially as a jew i'm outraged but i would like to
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ask you, don't you think the issue should be massive, massive reparations to the black people of south africa who are obviously, you know, terribly injured by this for 20 years? i understand a lot of countries were supportive of apartheid, but shouldn't israel of all countries in the world know better than to support an not detect a government like that? and they're so aggressively friendly to these people. >> host: professor posner, what, with your expertise in the law, how do you respond to that? >> guest: i do know the details of this. i was under the impression that there was some kind of collaboration between israel and south africa to create a nuclear bomb. israel has a nuclear bomb. they created this nuclear bomb because they feared that they're going to be attacked and then destroyed. i don't know the degree of collaboration. i don't know whether south africans were harmed or not, so i don't want to accept the premise of the question because i haven't read this book and i'm
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not inform. the broader question though, which is a good one, is what do you do when countries collaborate or cooperate with countries that do horrible things to their people? now now, the united states, you know, far worse than israel has been collaborate with horrible countries for a long time. and it was always a reason for it. during the cold war the united states would come operate with support, dictatorships in central america and south america and africa and so forth. and it wasn't because the u.s. want to cause harm to these people in this country's or want to exploit them. they just thought we're in this war with the soviet union. the soviet union is doing the same thing with other country. if we say look, you've got to become like us, a democracy, comply with human rights, you know, if we're going to put a military base on your soil than the countries all does go to the soviet union and the united states and its allies would be more isolated. so this is -- these are the hard
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questions one has to address in international relations. if you think you're under in significant enough threat and your values are at stake him you're going to have to make a compromise. in a way the most famous was the u.s. alliance with the soviet union during world war ii, and the theory was the soviets did horrible things to their own people and to other people in other countries, but the nazis were worse and we could defeat the soviet -- and we couldn't buy ourselves. the cooperation was justified. now, the story to tell that israel is correct, it's basically the same logic. one would have to evaluate it on its own merits. what were the risk is real legitimate face, what with arms if any, that resulted, and then you have to come up with some moral judgment. >> host: eric posner, if for
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one to read "the perils of global legalism," what would they conclude about the future of international law and your views on that? >> guest: the future is bleak, i guess, or it's not as rosy as many advocates and supporters believe it is. this is not a new view. this goes back a long time. sort of skepticism about whether international law and international institutions can really solve the most problems like war and today, climate change. that doesn't mean that international bodies me and it's not that under certain circumstance. international trade law has been helpful in bringing down trade barriers and increasing the well being of people both in our country and in poor countries. and there are other areas of international law, international cooperation that are quite effective. what i'm skeptical about is this
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kind of utopian view that we are progressing steadily toward a system of the international rule of law as is it is often put, where countries will be held accountable for the harms that they inflict on their own citizens or on other countries. you know, i just don't see that >> host: this e-mail from a ph.d. student at indiana university of pennsylvania, professor posner, i said you as a source in a paper i am writing about trademark and copyright. you wrote a paper entitled when is parity fair use? my question is how do you feel about companies like disney removing fictional characters that were once part of the public domain like a fairy tale character snow white and copywriting and/or trade marking them in order to control the way in which they are used? >> guest: i have to beg off that
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question. in that case i didn't write that paper. he is mistaken. [talking over each other] >> guest: i am not an expert on intellectual property. >> host: fort wayne, new jersey. you are on with eric posner. >> caller: hello? >> host: go ahead. go ahead with your comment or question. >> caller: the like to ask about gay marriage. according to your logic, what if one state says they are married and another says jews can't get married, how is it different from saying gays can't get married? >> guest: that is a good argument and a standard argument
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that has been made by a constitutional right to gay marriage. obviously that would be extremely bad and i wouldn't support that. it comes down to where do you draw the line? what if people start making claims for example to plural marriage? that is probably not going to happen but one has to think about that in terms of the principal. do we say basically the way people want to conduct their lives is entirely their own business and the state should never get involved, you could make that argument and then you could say there are no restrictions unless it causes harm to a third party. that is not the way our constitutional traditions are. the state has a traditional right to regulate marriage. marriage is a legal construct to some extent.
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they have been doing this for hundreds of years. you should hesitate before you tell the state to stop or to radically change a practice that has been -- is part of our identity. i am not opposed to gay marriage. what i said earlier is i thought it should be something state legislatures should decide. you make a good argument that state legislatures might make bad decisions and the judicial information is justified and i wish i could say there was a simple answer to this question. >> host: we are live from the printer's row live fast which is the book festival from the chicago tribune held the first weekend of every june. we have a question from the audience. >> my name is like. you entered two questions regarding the relationship between the administrative state
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and the growth of executive power. you said the growth of the administrative state has enabled executive power to rise. and the technical question of the federal reserve. you touched on democratic accountability. my question is what are your views? is there a cost-benefit analysis where some trade off with a democratic accountability is acceptable if there's a corresponding benefit? >> guest: it is a cost-benefit analysis but not the kind you could reduce to dollars. this is a general point. as the country gets bigger and the level of government rises it becomes more possible for government to supply certain types of goods that economists call public goods. clean environment, security,
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regulation of trade and prevention of fraud. it could be done more efficiently because the economy is scaled and the more effective the government can be but as that happens people are more remote to their government and they feel their vote has less influence on policy. to some extent that is true. policy will reflect the average fee is and values of the person in this huge country whereas if you have smaller countries sorry federalist system you have different policies. my view is in the last hundred years because of the reduction of communication and transportation costs there have been greater benefits to having a lot of scale, big countries with centralized government. you could still say whatever these benefits are you lose too much and we should have a more democratic system, but people
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have acquiesced in this. people seem to think it has worked but there are \es. generally people feel more prosperous and safer in a large centralized system than they would if we still lived in a highly federal system with a weak executive. >> host: is teaching in law school conducive to writing? >> guest: it is. teaching and research go together very well because as you to research you get ideas on how to teach and as you teach students ask questions you have thought of and that helps you come up with research topics that are worth writing about. >> host: after graduating did you go right into teaching? >> guest: i practiced for a couple years. i was in the justice department so you were asking about the office of legal counsel.
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i was exposed to constitutional law under george herbert walker bush and clinton. >> guest: what drew you to teaching? >> guest: practicing law is fun and i have done quite a bit since becoming a professor from time to time. there's a lot at stake and it is interesting but what is frustrating is you get a little issue and have to address it and you move on and you can think about it very deeply and what i like about academia is months or even years getting to the bottom of some topics. >> host: who should go to law school? >> guest: you have to find law appealing. i don't think it is a good idea to go to law school because it pays well or is secure because it may not pay well indefinitely
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and it is not clear to be secure any more. some people thinking about going to law school should do research because most legal process is not like what you see on tv, in court rooms and so forth. involved giving advice to clients and helping to structure contracts and people should try to figure out whether this activity is interesting or not. >> host: this e-mail from michigan, what is your opinion of justice antonin scalia, elena kagan and seventh circuit court judges frank easterbrook, richard poster and diane wood associated with the university of chicago? >> guest: it is awkward so i'm not going to answer that question. easterbrook is terrific.
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i read his opinions sometimes for legal work or as part of scholarship and i find him incredibly impressive thinker. there is a lot to like and not to like. in long run he will be remembered as somebody with important ideas. i don't agree with all of them but he is an important person. elena kagan, too soon to tell. elena kagan is respected by people on the inside. >> host: is the university of chicago academic community and enclave that is special in a way? >> guest: it is special. the university of chicago is committed to research and people tend to be serious about research although some people are accused of having ideological agendas and economists are accused of that. i don't think that is fair.
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i have political views like everybody else but what is special about the university is the central focus his scholarship and research and people take it very seriously. >> host: about 30 minutes left with our guest, eric posner. in-depth live from chicago. you are on the air from california. >> caller: thank you, professor posner. my question is about global warming. many scientists point out computer models which were the basis of global warming are in perfect with many fact left out and are and understand that many of the regional people who were on the ipc see have asked to have their names removed and also that thousands of scientists a couple years ago signed a paper in which they believe the theory of global
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warming have much left before it could be proved. my question to you is do you think recommending policies which are going to have profound influence on the lives of our people, the economy, the growth of our nation, its production etc. should be based upon a theory and you have written a book from what i and stand which is not completely valid on the validity of what you still question. thank you and i appreciate c-span books. >> guest: i am a law professor, not a geophysicist and i have to go on what the experts say. my hand is did -- i realize the caller disagrees but i believe there is a scientific consensus that there is global warming and it is caused by human activity. i have read enough of the science as far as i'm concerned as a non scientists to find it
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persuasive. science is messy and individual scientists will say things they later retracted or people criticize and scientific progress goes in fits and starts and people make mistakes. it is conceivable the scientists are wrong about climate change but i think there is enough consensus that it makes sense for policymakers to act on the assumption that it is a real and serious problem and if you look at what the government does, it does a lot of stuff based on science which is imperfect as it always is. you need to regulate and you can't wait until there is a scientific consensus. you have to make a judgment. the problem is serious enough that even if it is possible that turns out not to be really a
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problem, it is frightening enough to justify going forward with some sort of regulation. >> host: is cost-benefit analysis only an economic argument? >> guest: it is an economic mess. it has to be justified on philosophical and moral grounds, it is a technical method that regulatory agencies use to evaluate possible regulation. there is a controversy, reduce the amount of arsenates and water supply. there's an infinite amount of money. barseback at low levels won't hurt people. we don't want it too high or low and fixed right level. the analysis is useful way of
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doing that. i am persuaded it is a useful technique and people are critical about and then there's an ongoing debate. >> host: it gets to decide where the balance is? >> guest: the person appointed by the president or even the president himself, the decisions were made on cost-benefit analysis or they are done badly. or by political approach. >> host: next call from portland, oregon. >> guest: a question regarding circumstantial evidence. we have seen as becoming more and more prevalent and less and
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less credible. what affect do you think people like rush limbaugh and so forth have on the social norms of the day? >> guest: it may be that as i mentioned earlier prosecutors have a lot of discretion and often when you prosecute the person and send him to jail it can be based on circumstantial evidence rather than the person making -- witness testifying as a person who does something wrong but sometimes circumstantial evidence is quite powerful and it is up to a jury to decide whether it is a sufficiently powerful. juries do a reasonably good job at that but i don't have any particular knowledge about its effectiveness. i didn't understand the second question.
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>> host: he was talking norms. [talking over each other] >> host: opinion leader who sets source of -- social norms. >> guest: let me say something. the interesting thing about social norms as compared to what is there's no formal way to change them. you change the law by going to congress and say please change it and maybe they will and maybe they won't. some social mores that bothers you like wearing a tie or gay marriage or the opposite, the social appropriate of many places with respect to gay marriage, how the change that? can't go to congress because congress will defer to the norms rather than try to change them. opinion leaders, celebrities, influential people, can sometimes get these enormous change just like persuasive arguments for being who they are.
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>> host: david levine, what are your fox on why so many judges and he goes on to say usually those appointed by democratic presidents have so little regard if any for the economic consequences of their decisions? >> guest: i don't know that that is true. i think -- i don't think there's a big difference in republican appointed democratic appointed judges at least not in that respect. there have been scholarly studies that try to see the extent to which republican and democratic appointed judges, it is not a huge difference. and republican judges a skeptical about regulation. it is just a different world view. people tend to be conservative and worry about regulations. the free market does pretty well
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and the government often makes mistakes and liberals and democrats are more skeptical about the free market and are more in favor of government regulation. this is true of judges and decisionmaking. >> host: next question is from 9 yoda, illinois. >> caller: i live in the country and i am a farmer, i have gotten a lot of -- i called in about professor posner and it is a privilege to talk to you. you said several things about scientists have a consensus about global warming and there's a lot of scientists that disagree with it. i am in the country and have been living here for 56 years.
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i counted 60 jet streams overhead. we are always told all of this stuff we're doing on the ground is causing global warming and i personally don't believe in global warming theory because i have heard scientists say that maybe it is as simple as this and i have been watching this pretty close because i listened to a lot of weather services and stuff and since the beginning of february i have had an increase in sunspots which makes more sense than anything. when the sun gets hotter we get hotter. the scientists say it is carbon dioxide in the air. anything under 30,000 feet gets washed out. anything over stays there. >> host: where are you going with this for professor posner?
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>> caller: ad that uses 2,000 gallons of diesel fuel, that is more than i use on my farm. i am just trying -- why when we go with experts that tell as global warming is having this effect and we are getting down to where the clean air act which carlson -- sunstein wants to get rid of dust and we create a lot of dust blew the dust gets cleaned out of the air by rain. none of these things are taken into consideration. we have all these brilliant people that have ideology agendas and they want to control just like you said we need to read distribute to make global
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warming to favor cheaper countries. y instead -- >> host: i think we got the point. professor wikipedia -- professor posner? >> guest: local conditions are very complicated. the government to washington doesn't always understand and can enact regulations that don't make sense for a particular region or a particular area where certain conditions are different from the way they are elsewhere but i stick to what i said before. my reading of what scientists have said is there's a consigned to the consensus. if it is wrong--but that is good in a way. that would be awkward. i think it is probably right. scientists have looked at sunspots. it is a very simple graph you look at showing how much carbon dioxide is in the hemisphere and
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has been increasing for the century and look at temperatures and there is a close correlation whereas there is not a correlation between sunspot activity and temperatures. that said, if we need some kind of climate treaty, you do want to design the treaty in a way that is not put unfair burdens on some people and one of the things the caller was getting at was maybe as he sees it the regulations put excessive burden on farmers and not enough on airlines or something like that. those are difficult political questions that have to be worked out. >> host: as a farmer in illinois i think he is feeling like a victim of some esoteric fox. >> guest: it is not just a farmer in illinois. i don't have a deep understanding of climate change. i have to take the word of
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experts. everything i write about, are right about the law which i understand. certain policy judgments have to come from people who are specialists. the world is a complicated place. people specialize, get ph.d.s and so forth to understand small aspect but i don't think policymakers have any choice but to rely on this expertise. this is troublesome in a democracy because ordinary people ultimately are supposed to make policy choices and if they feel because their representatives are making policy choices on the basis of science they don't understand or has not been explained to them that is a significant problem. i don't have any solutions. >> host: eric posner is our guest. we are in chicago. a gentleman at the mike woods like to have the question. >> i am gary levin from illinois. i should have asked for some make up for a computer enhancement.
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i wish my voice was better, more like norman rose who was the voice of god. rich colombian coffee or steve reeves who was hercules. maybe you should count up instead of down because the programs you put on our 10. i would hope what i say is worth the time because i am not as photogenic as our host and our guests. >> host: go to your question. >> i want to recommend some books and give people the chance to read and down. my question will be asked in the beginning. can democracy work if people are not all intellectual which unlike michael medved and is not people putting ideas before people, people -- and intellectual is given to study, reflection and speculation. think of how many people don't know the religion or nationality of our president, people got here 10,000 years ago, abortion
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is wrong even a failure of birth control is done soon, the martyrdom of dr. kevorkian, letting people die with dignity on cable, maybe we should live each day not as if they are last but we would want to live in a better future. so the caller's voices were not very clear. it is matt j. p l's fault if a magazine from england, they got 88 out of 100. maybe the economy will get good enough to afford $60,000 a speaker. dr. christopher hill whose program you didn't should take for the show talked-about a co-author too. he wrote physics for poets and i mentioned stein way is the speaker's cost $188,000 but includes a cd on the amplifier. he is a musician who would like -- >> host: could we go back to your original question which was about democracy and intellectuals?
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please read the question? >> i am gary. the second murder and the meaning of life. these are optimistic. sex, murder and the meaning of life. < human about how we view indians, blacks and jews and two authors who wrote a book called out of character which means our character might not be set in stone. three very important books of 823 pages and so -- >> host: we are going to leave it right there. there was a question about the effective democracy. >> i did say anything inappropriate. >> guest: the question about democracy and intellectual. this has been a problem people recognized over a century ago. the united states became more of a mass democracy, intellectuals became worried that ordinary people would in affect have too
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much influence. ordinary people who are not particularly educated or understand what was going on and the worry among the intellectuals was they would have too much influence on politicians as a result politicians would make bad decisions. i don't think that is right. a lot of people are not very educated or informed but most people vote on the basis of how the economy is doing or whether they feel secure and are not interested in particular policy instruments that the government chooses. they want to see results and that gives the government of freedom to rely on experts to a certain extent to choose whatever appropriate policies are in order to achieve goals people agree with. >> host: eric posner has written books on social norms and international law. here's an e-mail that combine them both. raymond from rhode island. if a middle eastern sheikhs with
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an 8-year-old bride checked into a manhattan hotel in new york or the u.s. authorities arrested him for being in violation of new york or u.s. law? >> guest: so he is not berrying in the united states. he is already married. once he is in the united states the united states would not recognize his marriage as valid. if the 8-year-old run away, i don't think u.s. authorities would return the 8-year-old to him on the grounds that the law of the country in which he comes from he has control over his child's life. on the other hand if the 8-year-old doesn't run away and it doesn't come to the attention of u.s. authorities nothing is going to happen which is more likely or more likely still be 8-year-old would have been left in the country and not brought into the united states. >> host: a few minutes left for
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our guest. next call from chicago. >> caller: hello. professor posner, an honor to speak with you. please comment regarding the supreme court members citing constitutional law from other countries. david curry, for former member of the university of chicago law school is cited frequently by the supreme court his position about the united states constitution was the first major product of constitutional democracy. the movements of the seventeenth, eighteenth and nineteenth centuries and our constitution became and remains a model for the development of other constitutional democracies and as such, we can learn from the other constitutional democracies who have already learned from us. >> guest: a similar question was asked before and what i said was
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it makes sense for justices if they do this in an honest and sincere way to look at what is going on in other countries for the purpose of interpreting the u.s. constitution. at least under certain circumstances. and the general concern which is a legitimate concern is if you give the justices the interpretive method that they might use as a screen for implementing their ideological preferences. that is a real concern which makes me a little bit nervous about this practice but i am not opposed to. >> host: ryan moore this e-mails in to you you taught me contracts as a first-year law student when you were visiting at nyu. you were a favorite of the students in our section. i am wondering how if at all you believe your work on social mores relates to hayek's view on
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the distinction between law and legislation? >> guest: nice to hear from a former student. >> host: who like you. >> guest: even more so. it typically challenging question. hayek was a famous thinker well known for as the critic of the regulatory state and he believes the government simplifying greatly didn't have enough information to engage in the kind of regulation the liberals support. there is a connection between that you and my review of social norms. one of the points i made about social mores is they govern people's behavior to a tremendous extent which is underestimated and if the government doesn't take into account how people are in fact influenced by social norms when
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they enact regulation, you could have bad advocates. he is right and i think a lot of people think he was right. that the government has to be very cautious when it passes laws and regulations because there is so much that it doesn't understand. on the other hand, hy costanza too far. there are certain problems that are relatively -- influencing behavior which seemed to work. taxes, criminal punishment. the government is often justified in engaging regulation. >> host: eric posner is our guest and boston, you are on the air with him. >> caller: unlike to ask about earlier when you were talking about israel's support for the apartheid government. you were talking about juxtaposing it with american support for in the film
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dictatorships -- have you never read about american companies exploiting third world countries and poor countries for economic reasons? do you really think it is better for the cold war and if true why it america exploiting so many countries for cheap labor and so forth? how can you say it is just a matter of the cold war as opposed to american companies exploiting poor people, frequently non-white people in other countries so they can make billions and billions of dollars of profits. they're being paid $0.50 the day. how can you know nothing about it? >> host: we got the point. >> guest: you are taking my earlier answer out of context. i was trying to draw a comparison from israel to united states. the u. s has security reasons
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for propping up or at least not pressuring dictatorships in other countries. i was making a pretty cautious point. i don't know if the security reasons were justified. i think they were plausible but quite a respectable argument that the u.s. should instead have been more aggressive about these dictatorships and given them less support. you say what the u.s. is doing or partly doing was propping up these dictatorships in order to support american companies that were exploiting people in these countries. exploitation occurs but it is complicated because what you call exploitation could just be called trade and investment. most countries including democratic countries which are -- welcome trade and the investment because if american companies build factories, there are jobs for people there and if there is trade then people in
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those countries can build things and get foreign currency they can use to buy things that they need. there is exploitation in the sense that those people are going to be paid lower wages that americans doing similar jobs but that is why the trade occurs in the first place. american companies were to pay them the same wages they want to invest in these countries. there would be no reason to. so the people in those countries are being benefited from most forms of foreign investment and trade. there are cases where that doesn't happen. where the government is very corrupt but i think all in all, this type of globalization were wealthier countries invest in poor countries and trade with the poor countries have benefited people in those countries quite a bit. notably in china, china is the
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best example where 20 or 30 years ago, virtually the entire country was incredibly impoverished and in the last 20 years something like three hundred million people have gone from living on a dollar they to having a respectable livelihood. that is because of trade and investment. >> host: if you were advising a google type multinational company when it comes to international law or u.s. law or chinese law, is this an area that is getting more fuzzy with the multinational corporations? >> guest: has become more difficult and people often call this globalization. you have these companies we often identify as an american company or a german company but they have shareholders all over the world and shareholders are the ultimate owners who a ultimately control the company does. the company will set up offices all over the world and it may be
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unclear what nationality of the company is. these companies can take advantage of differences in law to make profits and sometimes that is troublesome. sometimes it is less troublesome if the companies are just doing business in a more efficient way. the lawyers for google face challenges. they have to deal with foreign and international law to some extent. it is a more complex world that we lived in as recently as 20 or 30 years ago. >> host: of ohio, you are on the air. >> caller: thanks for taking my call. yesterday on booktv we heard from lara caldwell who wrote long way home, about the young man who left the game after a fight. he was not even there when a man was killed but later six months
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later he was picked up, he spent almost six months in the cook county holding area and was not convicted of anything. they say 5% of the people picked up fall into this category. that is out of hundreds of thousands that have been arrested. i am wondering how this could happen in a democracy. >> guest: how could it happen in a democracy? ordinary people want to be protected from crime but they don't want to pay high taxes so the elected representatives are squeezed between these two sort of contradictory impulses, impulses or intentions and the result is they may skimp on procedural protection or training for police or court officials with the result that
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we get this attitude. >> host: this e-mail from seattle. professor posner, can you comment on the philosophical basis of the roe v wade decision? we have a situation in which every federal judicial appointment hinges to some degree on the candidate's views on abortion. should this question have been left to state legislatures? >> guest: with the benefit of hindsight it would have been good to leave it to state legislature but i do think it has had a bad effect on national politics. i am a strong -- if you are abortion-rights proponents you won't believe that. i am an abortion-rights advocate but not as passionate as other people and these questions are serious. it is a bad thing that appointments and nominations turn on the judge's view of abortion rights or at least the constitutionality of abortion rights because the legal system is so much more complex and so
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much is going on that you wouldn't think that single question should be driving what is going on. >> host: this e-mail in the spring of 2010, n.y.u. and harvard law school at a conference to discuss law firms being highly critical of law school curriculum for which reason corporations have reduced hiring. are these corporate law firms correct? given the economic times what would you say are the cost benefits of one entertaining the idea of law school? >> guest: law firms have always complained about legal education. they think we teach too much theoretical stuff and don't give enough practical experience or teach in of practical skills. the law schools have been trying hard over decades to introduce more clinical teaching and more
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practical teaching. my own view is it is hard to teach that. the only way to learn to conduct a deposition with lawyers do all the time is to actually do it. where there is the real case and you are with a senior lawyer and you watch what he is doing and you are about to have some questions. most of one's knowledge of the law can be based on practical experience, not book learning. >> host: >> host: just a few minutes left with eric posner. santa rosa, calif.. >> caller: my question is about international trade marks and internet domain names. you said you're not an expert in intellectual property, but i think organizations can have a lot of control over who gets what domain names and do american citizens have recourse through the government to appeal
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a decision made by an organization like that? >> guest: i don't know the answer to your question. ican is an interesting institution. it is not a formal legal institution but a body that has been set up to assign domain names as the caller mentioned the. it has internal appeal procedures and there has been litigation about domain names but i don't think american institutions have the authority to reverse a decision by ican. >> host: an earlier caller talking about the book long way home, chris tweets in that the subject of long way home was in a holding for six years, not six days as the caller mentioned. professor posner, this e-mail came in for you as well that i wanted to get to.
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there we go. not sure, from sandy in colorado. how did we get so far from the intent of the original constitution? this is not a federal democracy, it is a democratic republic. states have autonomous authority over the federal government. >> guest: that is the view many people had 200 years ago. it is not clear that that was the founders''s view but let me answer the question this way. the founders had certain expectations about how the constitution would work but they had no idea. they were gambling. there was basically no precedent and they were hoping government structures would work a certain way. they were wrong. almost immediately a party system arose, the party system have a lot of influence over how
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government works. almost immediately the executive became more powerful than any of them fought. over the years things change. technology changed, people's views changed. the risk is the constitution if interpreted according to its original understanding, won't catch up and will be ignored so over the years courts have reinterpreted it. ordinary people reinterpreted it and its meaning has definitely changed. some people like the way it changed and some don't but it is clear to me the regional understanding has not much relevance. >> guest: >> host: what did you teach less semester? >> guest: our top banking law and federal reserve. >> host: do you make of your own classes or are you assigned? >> guest: it is a charged
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negotiation. anything could go. >> host: will -- what will you teach next semester? >> guest: i think i will be teaching contract law. >> host: where do you find time to write? they writing your office or at home? >> guest: i right in my office and at home. we don't teach over the summer so there's time. >> host: what is your next book? >> guest: i have two books. one is a book on contract law basically for students and another book is about international law. it is meant to be almost a reference work which brings together my ideas and other people's ideas about how our international long works. >> host: if you were to recommend one of your books which one would you recommend? >> guest: maybe the perils of global legalism. i consciously wrote that for people who were not experts.
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my other books are for an optimistic audience. anybody can get something out of them. the perils of global legalism is intended for large academic audience and address issues that lots of people are concerned about the role of international law. the extent to which they did this regard those norms. the influence of globalization on american government. >> host: let's look some of the other books as we close on in death. law and social norms, "the perils of global legalism," "the limits of international law" came out in 2005, "new
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foundations of cost-benefit analysis" in 2006, "terror in the balance: security, liberty and the courts" in 2007, law and happiness came out, this was a book he coedited with cass sunstein. "climate change justice" and "the executive unbound: after the madisonian republic". both 2010. professor eric posner, thank you for joining us on our in-depth program. >> thank you. >> visit to watch any of the program's you see online. tied the author or book title in the search bar on the upper left side of the page. you can share anything you see on easily on the upper left-hand side of that stage and selecting the format. booktv streams live on 48 hours every weekend for top nonfiction books and authors. >> what are you reading this summer? booktv wants to know.
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>> what i read recently is a hopeful book that i wrote called the speech and i reread it. it deals with the filibuster in december. talking about a bad agreement reached by the president on engaging bush's tax breaks for the wealthy and also goes into detail about why the middle class in this country is collapsing and also talks about the growing inequality of america and what this means for the future of the country. i did we read it and it was a good book. third world america by arianna huffington was a very readable book. a very good writer. she touches on the trends we have been seeing for a number of years in terms of our films physical infrastructure in terms
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of education and health care that frankly if we do not reverse and the this is her point and we will look like a third world country. a friend of mine came back last year from china. he flew into the united states and sitting on the floor, playing was delayed. he was wondering which was the third world country? the united states or china? moving elson the wrong direction, physical infrastructure and more people without health insurance, growing gap between the rich and everybody. and a big interest in wall street. and the point is we got to get our act together and reverse those trendss to what it should be. another book that i am reading
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right now is a book about the life of somebody i had known for a number of years, a good friend i have known for many years and that is willing nelson and the book is called willie nelson:an epic life by joe neck hopeski. it is not the most readable book in the world. he gives us the name of everybody in the world having anything to do with willie nelson but given the fact that willie nelson is clearly one of the great entertainers of our time, he is really an icon and a unique type of individual because of who he is, his entertainment qualities. in vermont where i have seen him he brings together just a huge range of people, most singers
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will appeal to this group of people or that group of people. he brings them altogether and that has a lot to do with his personality, his decency as a human being, his gentleness, his decency, a strong supporter of rural america. people are interested in learning about the life of a guy born in arkansas and migrated to texas, he worked in the cotton fields, he grew up very poor, he has a unique ties to working americans today. willie -- i am a big fan of his and this is a good book that talks about his life. last book, pretty interesting actually, the topic might be considered boring, a book called the financial crisis.
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that was put together by the commission congress established to look at the causes of the financial crisis, how they ended up bringing us to the place we are now which is the worst recession this country has experienced since the great depression. it is tough reading because what you are seeing is the incredible recklessness from these people on wall street producing worthless financial instruments, and leading us to where we are now, talking about the great power of wall street and their business models. if anyone wants to understand what is going on in america today you have to understand wall street, understand the incredible power they have economically and politically. this book does a pretty good job
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doing that. some of what i have read and am reading. >> tell us what you are reading. send us a tweet at booktv. >> parter jim gentry, the title of your book is "in the middle" and on the edge and you mention always in the middle and on the edge of different parts of idaho civilization. what do you mean by that? >> the present day--in ways that those areas were more water and had a larger indian population in the beginning and we are almost exactly in the middle and what i argue in my book is windfalls is in the middle between two canyons which is easy to see. it is also between boise and almost to the south and in the middle basically of northern
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nevada. and the river valley and sun valley an earlier. everybody wants to be in the middle but it is not fun to be on the edge and i argue the fact that when falls has been on the edge in a number of instances has made people more defensive than they might be hand is crucial in understanding our history. for example when the freeway was built in the 60s and the freeway was built north of twin falls and there was this tremendous disappointment that somehow plan falls -- that we were on the edge again. >> how did native americans and pioneers influence the development of windfalls? >> native americans move around a great deal. in my book i suggest they moved like a lot of senior citizens do today. when the weather was warmer they moved into the kansas prairie
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area, what is present-day for south hills. they migrated a great deal. new contacts in this area, fur trappers, oregon trail trappers. these were the first people who came through this very and wrote about it and in 1811, the hunt party came and we are celebrating the 200th anniversary and they made people in the east aware of the area for the first time. >> your book looks at the rise of unions. why did you decide to add that and how did you research that topic? >> extensive research over 13 years and what i was dealing with at the time was local newspaper and it adopted a dry
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area. it adopted prohibition -- natural prohibition. often individuals would obtain alcohol in nevada just as today nevada legalized gambling and people in twin falls for the jackpot 50 miles away so there's the interesting tension between the desire to not have a gambling will be used today but also access to it in northern nevada. really following the newspapers in terms of what was deemed important in the city. >> what is the biggest change over 100 years of existence? >> we celebrated in 2004 the 100th anniversary of the city and just a little over 100 years
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ago there was irrigation here. so there was basically no agriculture. there has been a tremendous growth of agriculture in the last 100 years and in the city itself there has been a growth associated with travel in interstate 84 and also development of tourism and other factors that could not have been envisioned 100 years ago. >> how does your book help understand the region of twin falls? >> the twin falls region, what i was trying to make so i could deal with those things influencing twin falls but not deal with county history for example. what it really does is focused on twin falls but also allows me to deal with a lot of issues tangential to twin falls like the opening of the sun valley
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area in 1936. that sort of saying. >> your book has numerous anecdotes about windfall over the years. can you give us an example that sums up twin falls that you enjoyed researching? >> really fascinating. one of the things i really enjoy it was the focus on community. that windfalls is still a small enough area that community is important and may be my own southern roots in a small town, community is importance of the focus on community and how to develop community is interesting. >> you are not from idaho or twin falls. what made you interested in writing this book? >> i completed


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