Transcript: Well I don’t . . . I don’t have the knowledge to give a responsible answer. But since . . . but I would like to see . . . I’d like to see . . . I’d like actually to see very heavy carbon taxes. And I’d also like to see larger government expenditures devoted to a range of defensive measures against catastrophe. But I think actually it’s kind of hearsay, but I think the . . . I think the American people are under taxed. You know we have very low tax rates relative to most countries, and I think too low. I think . . . I think only government can deal with these catastrophic risks – not that the government has to do any of the research or anything; but the resources required, I think, for effective protection against them . . . require a large-scale government spending. So I think we’ve been too . . . I think we’ve skimped on government expenditures too. It’s partly a diversion. It’s the diversion of Iraq which has been so extraordinarily expensive. But if we were ever able to extricate ourselves from Iraq, which costs about $100 billion a year, I’d certainly want that $100 billion to be devoted to other national protection and not given back to the taxpayer.

Recorded on: 11/21/07

Transcript: Well I’d like to think the . . . all my traditional. Twenty six years as a judge, I think there’s some impact on legal doctrine in areas . . . in many areas that are quite unrelated to these hot constitutional issues. And then as far as more academic thinking or writing . . . Or not all academic; some of it semi-popular. Well I’d like to think that it’s helped to show the . . . the . . . how helpful economics can be in dealing with a variety of public policy issues. And also helping us to understand the courts, and understanding, you know, the vacuity of a lot of this . . . both the traditional legal vocabulary and the more theoretical, constitutional argumentation that’s succeeded that we’ve been discussing. Now if you asked me this question 30 years ago or something, 20 years ago, in the ‘70s, which was a very different era than the . . . in economic thought in this country, I thought then what I was . . . what I was trying to do was part of the movement – originally a very small movement – was to . . . was to, you know, revise antitrust law and regulatory law to give much more play to free markets and be much less, you know, ___________to use a French term. But that war . . . That war was won, you know, beginning with the Reagan administration. That war has been won. So now, you know, we’re dealing with a lot of other issues.

And in recent years I’ve been particularly concerned with catastrophic risks. One is global warming where I . . . I wrote a book called “Catastrophe” ___________ subject. It was published in 2004 and written, you know, in 2003. And I take some pride in the fact that despite being a conservative, often we . . . thought to be a really reactionary beast, I did think, you know . . . I did think global warming . . . I thought then . . . I thought it was a very serious problem. And I was particularly concerned with . . . because back to the question on concern, I was particularly concerned that people were too much focused on the consensus predictions as to the consequence of global warming, which was a smooth, gradual increase over the 21st century which would have very serious consequences, but not until the later part of the century. And what I emphasized in my book was that there’s a great deal of uncertainty about this, and that it could be much more rapid; and that we shouldn’t just look at the consensus forecast. We should . . . Again it’s basic cost-benefit analysis. If there’s a one percent chance of a very serious disaster, you don’t ignore it by saying, “Well it’s one percent. We’re not gonna worry about it until it’s 51 percent or 100 percent.” So . . . And it has turned out since 2003 or 2004 that the scientists were underestimating the rapidity of global warming. And so now it’s recognized as a more serious problem where we should have been dealing with it, you know, 10 years ago. And we should have been saying look, you know, we have this consensus forecast. It’s gradual. It’s not too alarming; but we have a substantial uncertainty as to . . . It could be much, you know, milder than we think. It could be much more severe. We have to worry about the severe __________ and the distribution of probabilities. And I was, and remain, also very concerned about the terrorism problem. I don’t think we’re dealing with it very well. And you know there are civil liberties concerns. I’ve written about that. But I do think we have to, again, take that . . . the risks of terrorist attacks with weapons of mass destruction – we have to take them seriously. I think it’s relatively low probability; but low probability events with very bad outcomes, if they materialize, deserve serious consideration. So . . . so I . . . So as I say, the problems have changed since the ‘70s, but I hope I’ve been keeping abreast of the current problems in trying to make a constructive contribution.

Recorded on: 11/21/07

Transcript: Well the replacement of Justice O’Connor by Justice Alito did . . . did change the balance on the Supreme Court significantly. And you know Roberts has shown . . . He’s new. He’s only been there a couple of years, but seems to be probably actually more conservative than Renquist whom he replaced. So yeah, it’s a more conservative court, and there are different directions. They could keep chipping away Roe v. Wade. And at the . . . You know there’s been a kind of program of conservative retrenchment. Well it’s retrenchment and expansion. It’s not entirely retrenchment. But so some of the conservative justices are hostile to federal power. They’d like to alter the boundary between state and federal power in favor of the states. So define . . . So Congress is allowed, among other things, to regulate interstate commerce. So the more broadly you define interstate commerce, the greater the Congress’ regulatory power. So they continue shrinking that. ___________ these hot national security issues now, and the conservative justices are, you know, more likely to endorse broad presidential power. But that’s less certain. Justice Scalia has actually written a strong opinion in one of the cases against presidential powers, so you can’t be sure. And it’s hard to predict these things because, you know, at the moment you have four liberals; four conservatives; four pretty extreme conservatives. And then you have Justice Kennedy in the middle, and he’s actually quite conservative, certainly by historical . . . If you look back to the ‘60s, very conservative. But he’s not as conservative as those four, so sometimes he swings to the left, and that makes the court quite unpredictable. So he wrote . . . You know he didn’t write, but he joined an opinion by Justice Stevens holding that, you know, carbon dioxide – the global warning villain – was a . . . could be deemed a pollutant – that the Environmental Protection Agency could regulate. And that was a significant liberal decision, and Kennedy joined that. So . . . so he’s not . . . And of course he . . . he wrote the opinion which invalidated the execution of 17 year olds. And he’s written two opinions that were very sort of pro-homosexual rights. So . . . so there is an element of unpredictability in him which makes the entire court unpredictable because he’s the swing justice. And of course you don’t know when there will be further vacancies, who will fill them, how they’ll be filled. And also justices sometimes change their . . . their views and kind of drift one way or the other.

Another thing related to that drift, it’s often . . . It’s often difficult to know whether a judge or justice is changing his ideology; or he’s in the same place, but the environment is shifting. So you can be in the mainstream, and as the stream shifts you find yourself on the extreme left bank or the right bank. So as the court becomes more conservative, some of the conservative judges may say, “Well I’m not really that conservative.” So then they begin to look somewhat more liberal. So I think Justice Black in the ‘60s would have been the extreme liberal drifted as the Warren court became more and more liberal he, not really changing his views particularly, became more conservative. Relative . . . it’s all relative ___________.

Recorded on: 11/21/07

Transcript: Oh I don’t think . . . Judges at our level, I don’t think think much about public opinion. I think the Supreme Court does because, you know, it’s interesting example a couple of years ago. There’s a Court of Appeals for the Ninth Circuit, which is California and a number of the western states decided that the phrase “under God” in the Pledge of Allegiance was unconstitutional. And that caused a certain sensation. But on the other hand it was just the Ninth Circuit. It was just the west. And anyway it was subject to appeal by the Supreme Court. Well the Supreme Court found a technical ground for reversing the decision. It didn’t deal with the issues of religious freedom that are involved. It was very technical. Now if the Supreme Court decided “under God” in the Pledge of Allegiance was unconstitutional, that would have a tremendous impact. And I . . . I think the Supreme Court justices, consciously or unconsciously, are mindful of the public opinion consequence of any decision. But at our level, our decisions would rarely have significant effect on public opinion. So the response to the public is not a . . . not a factor. But on the other hand, there’s no doubt that judges’ ideological views, and political responses, and moral feelings and so on are influenced by the temper of the . . . of the community. So some of us think what we mean by morality is durable public opinion, right? So the judges will share the morality of their community, which is ultimately a product of what people feel. So public opinion has a, you know, tremendous underground effect. The courts are all more conservative, for example, than they were in the ‘60s. So there’s been an ideological drift in the country. And equivalently, there’s been a change in public opinion, and that’s affected who has been appointed as a judge; but also effected how judges react.

Recorded on: 11/21/07

Transcript:  Well I think very substantially.  See American law . . .  This is the fun of it actually.  American law is extremely uncertain.  And now the majority . . . even . . .  Even given that, the majority of cases are cut and dried if you look across the whole American system with their millions of cases filed every year.  And most of them have no merit, or some have obvious merit, so . . .  But when you’re talking about a federal appeals court, a significant fraction of the cases that come to us are . . . arise in unsettled areas, or the facts are very uncertain.  When you get to the Supreme Court, the percentage of, well, really indeterminate cases are really much higher.  But at our level it’s high.  It is high.  It is significant.  So given uncertainty, what our . . .  You know there are two kinds of uncertainties.  Statisticians make a distinction between risk and uncertainty.  Risk is where there’s     . . . there’s uncertainty . . . there’s a lack of certainty, but some probability can be assigned to the risk.  So you can . . . you can deal with it.  Uncertainty in the way statisticians . . . some statisticians use the term means there’s no probability that can be assigned to this risk, but you still have to deal with it.  So an example would be supposed you’re deciding whether to get married.  You can actually assign a risk of divorce.  You can look at the statistics on divorce and say, you know, 50 percent of marriages end in divorce.  But you don’t know the probability of your marriage ending in divorce, right?  So that’s uncertain.  You still have to make a choice, but you couldn’t assign a probability. You couldn’t do a cost-benefit analysis.  Well that’s the position we’re in much of the time, and those are the interesting cases.  And what . . .  And if you think of the marriage choice, what is going to determine your decision is going to be highly personal to you.  And that’s true with the judges.  So your ideology, your temperament, your response, how do you . . . your experience.  You may have    . . .  You may have been a defense lawyer – a criminal defense lawyer.  That’s giving you some perspective.  If you’ve been a prosecutor, that’s giving you another perspective.  Academic, something else.  If you’re . . .  If you have what’s called an “authoritarian” personality, you’re going to be . . .  You’re probably going to be conservative, and you’re probably going to be very rule oriented.  You’re going to set a very high value of “definiteness”.  And if you’re the opposite personality, not.  And as I mentioned Justice Breyer, he doesn’t like rules.  He likes very general standards.  And some of his colleagues are the opposite, like Justice Scalia who is very . . .  He really likes rules.  He doesn’t like standards.  And that, I think, is the temperamental difference.  Temperament being shaped by . . . by biological factors, but also by upbringing, experience, you know, the times in which you grew up.

One of the things I know shaped my . . . my own ideological development is I reacted very negatively to the riots and protests in the Vietnam period.  I really dislike that stuff.  And I think that had a . . . had an effect.  Now of course other people reacted the opposite.  They thought this was terrific.  You know they’re nostalgic for it.  So the same experiences can have different effects on people depending on I think, you know, deep psychological factors which are _________ biological.  So (16:22) but as a I say, whenever you have people who are making decisions that are not . . . cannot be made in a kind of an algorithmic way in applying a formula . . .  And to an economist, the  . . . the epitome of algorithmic decision making is cost benefit analysis.  And it would be nice if in a case we could say that we decide one way, there’s some probability of the following measurable adverse consequences in future cases as a result of adopting this rule.  But you rarely can do it.  In a larger number of cases, you can’t do a statistical analysis, but you know that the adverse consequences of one choice greatly outweigh that of the other.  But then as I say, that is . . .  There’s a large number of cases where you simply do not know.  And so you’re, you know, personal characteristics then shape your decision.

Recorded on: 11/21/07

Question: Beyond a simple title, how would you describe what you do for a living?

Transcript: Well the academic research and writing is distinct, although . . . distinct related to the judging. So my academic work continues to be primarily focused on economic perspective on issues of law primarily, but related issues in public policy because I’ve written about aging and about sexuality. And these are topics where I think there is a neglected economic angle. But I’m eclectic, and I have brought to bear sociology, and philosophy, and other history, and so on in other areas. So that’s . . . that’s the academic. But as far as being a judge is concerned, we don’t choose our cases, so just take ‘em as they come. And I’ve been . . . Where I’ve seen an opportunity to use economics and judging, I’ve certainly taken that opportunity. But more important really than that, my dissatisfaction with this moralistic . . . traditional, moralistic category of law continues. And I’m disturbed by the degree to which the lawyers arguing cases to us present them in terms of this traditional vocabulary without focusing us on the facts, on practical considerations – clearly economic, but not limited to them.

Question: How do you decide what a verdict should be?

Transcript: Well a pragmatist is someone who thinks that the consequences of a proposed course of action are the critical factor in deciding whether you wanna follow that course. And then in a . . . in a judicial case there are always two sides – plaintiff and defendant. One is gonna win. Each is advocating a course of action which will have consequences, good or bad. And I’d like to get the lawyers to focus, and I’d like my own response to a case to focus on what those consequences are likely to be.

Question: How do you weigh the arguments?

Transcript: Well a lot of the time it’s just intuitive. We’re given enough facts to make a rigorous cost benefit analysis. But often one feels at least a confidence in one’s intuition that if the parties . . . that if you can figure out concretely what will happen if one side or the other . . . if one position or the other becomes the rule of law to govern future cases, you have . . . One has confidence in that outcome, then one feels one is making a pragmatically sound decision.

Question: Do you reconsider decisions you’ve made in the past?

Transcript: Well judges don’t look back actually. (Chuckles) Any judge who is realistic will realize that a significant percentage of the votes he’s made in cases are either indeterminate as to whether they’re right or wrong, or they’re wrong. So I’ve . . . I’ve sat in more than approximately 6,000 appeals in my 26 years as a judge. Now I know there’s a percentage of those cases which . . . which I . . . which I voted incorrectly. But I have no inclination to look back and try to figure out which they were. Now sometimes in a new case people . . . parties will advocate a position that is contrary to one I took in a previous case. I’m happy to re-examine my earlier position; but I don’t sort of independently in the absence of challenge look back and try to figure out what’s right or wrong. And the other thing that . . . So I’ve written . . . So as I said I’ve heard more than 6,000 cases. I’ve written almost 2,500 opinions. I’ve forgotten most of them. I don’t carry 2,500 opinions in my head. But if I’m reminded about a case, as I say, I’m happy to reexamine my position.

Recorded on: 11/21/07

Question: Who are you?

Transcript: Richard Posner. And I’m a judge of the United States Court of Appeals for the Seventh Circuit. New York City in the . . . during World War II? Well of course I was . . . I was just a small child obviously. I was aware of the war, and we lived on the eighth floor of an apartment on Central Park West, and my friend lived on the sixth floor. And I envied him because I thought if a bomb fell, you know, it would hit the eighth floor before it got to the sixth floor. I remember the news reels. New York has not actually changed much in its physical features or its crowdedness and so on. And we moved to Scarsdale in 1948 when I was nine, and I actually liked that a lot better. So I love to visit New York, but I don’t have any desire to live here.

Question: When did you know you wanted to pursue law?

Transcript: Well it’s all a series of accidents. My father was a lawyer, and law was kind of a residual choice for people who didn’t have strong occupational motivations. So when I was in college, I majored in English. And I gave some thought to going to graduate school and literature, but it didn’t appeal ultimately for a variety of reasons. So I just went to law school. And just a default option. I didn’t have any particular passion for law or anything like that. And . . . But in the ‘60s after I’d graduated and worked in Washington, I became interested in economic regulation, application of economics to law. And then when I started teaching at Stanford in 1968, I started meeting economists. And I came to Chicago the following year. So as far as my interests are concerned – the professional interests – they were determined mainly by engagement with economic cases in the ‘60s and then meeting economists.

Recorded on: 11/21/07