power faith and it is very timely to say the least justice and the executive unbound. >> welcome to "in-depth" it

is books he read monthly off their call-in program every feature one author with his or her body of work. we're pleased to be sure eric posner year at "chicago tribune" printer's row with press and also joined by a studio audience as well who will havene h questions for the professor. c start by giving as a snapshot of what you'd do and what you write about. >> i am a professor of law at the university of chicago and have been there 15 years i read about a number of different topics and constitutional law in and particular the powers of the presidency with international law and. >> do good to rated from

harvard but what does that mean? >> the title that is given to professors after they reach a certain level and are old enough to deserve the title. it does not mean anything beyond that. >> establishing your history who is your father. >> the sec -- seventh court of appeals before he was a judge who was an academic at the law school and is well known for a variety ofy of opinions on various things in the legal world he is i known for introducing economics to the law. >> let's show you the professors books you have an doe idea of what he writes about.nd t in 2000 he published the first book called a lot and social norms and also written the perils of globale ou legalism coming out 2009. b

the professor has the co-authored several books including the limits of international law and the terror in the balance coming climate change justice and the executive fund down. in my reading, is it fair toec say that with the separation of powers is now working? >> that is right. it has been eroded over the centuries and the result is the executive president has become much more powerful than the founders anticipated when they designed the b system in the 18th century. >> is that a bad thing? >> i don't think so. part of the purpose of the book is to criticize conventional wisdom for people to say the president

has become too powerful and unaccountable but the view of the book that i assert with my co-author is that the role has changed a great deal and congress and the judiciary and no longer function as the founders anticipated they would and there is a natural a evolution to power as a result. >> they syria colleague of mine at university of chicago. >> host: the what is the point* of calling more powerful executive? >> guest: a libyany on intervention, president obama's decided on hiswn own to send the u.s. military forces into libya broke under the constitution he should get the authorization of congress but that has not happened.do

obama it is not the first person to do 1999 when he sent u.s. forces into serbia, and other presidents have before. so this is an evolution in presidential power. it's one the congress has, basically, acquiesced to. >> host: now, there was a lot of criticism during the bush administration about the power of the executive, and dick cheney a well known proponent of executive power. did the bush administration push the ball forward when it came to, as you say, unleashing or unbinding the executive? >> guest: it did, but not as much as people generally believe it did. one of cheney's ideas was that the presidency was actually much powerful up to the nixon administration, and then there was this backlash as a result of watergate. and cheney's view that was for the country to be secure and to function well, the presidency had to be as powerful as it was up until nixon. and so he and others in the

administration in an unusually self-conscious way sought to reassert these powers. but much of what the bush administration did, perhaps all of what it did, fell comfortably within precedents of previous presidents. and the same thing with obama. presidents do have a tremendous amount of power, and the bush administration took advantage of existing understandings, traditions and precedents. >> host: well, another thing you write about quite a bit is international law. we've gotten this e-mail in for you, and this is from christopher wank of virginia. do you believe that the obama administration has mostly continued or departed from the bush administration's legal framework in the fight against terrorism? >> guest: mostly continued it. there have been some significant breaks. the -- but on examination they seem less significant than they

might appear. so the obama administration repudiated torture, of course, but the bush administration had also more or less given up on coercive interrogation or torture by 2007. the obama administration wanted to try more people, but it's had to give up on that idea. but in other respects the obama administration has continued bush administration it has continueds. policies with the warrant was surveillance and the use of drones to assassinate people who are considered threats to u.s. security including american citizens. the assertion of strong secrecy privileges which makes it difficult if not impossible to bring lawsuits.th and really detention of people without trial is

greatly criticized during the bush and administration although obama's hasfear continued as well. >> what is to iran and phobia? >> that is a combination of tyrant and phobia and the unreasoning fear of the excessively powerful executive. the country haexsy a long tradition of t po iran a phobia. was it was justified in the beginning because it. >> most countries smirking them and. >> but also with european history feared the u.s.ona policy would degenerate intoso a monarchies then a tyranny. they were very worried about the constitutional design to be explained by their

efforts to explain that from taking place but what hasre u happened is most countries have become democracies and various institutions and known including the party system and the modern and robust freedom of the press which i think has greatly reducedgald a. >> the books you have written this terror in the balance. worthies rich and for law students orst the public?en >> they were intended for both groups. this dollars and the public but there is a certain amount of knowledge of the history and constitutional law.

>> host: if the case for perversive interrogation is weak because of the moral harm outweighs the benefits come in the case dramatically strengthens during emergencies. the moral harm. this is a simple>> application of this goes back to the bush administration arab debate and the view we have had is essentially utilitarian. in a policy from the government is justified if h theel benefits are greater than the cost. this is something everybody is familiar with, the prisons camerase harm to people but they are justified.sa the same idea of applies to

coercive and tugo eight -- but that provide stronggu reasons for not him to use up. in the emergency, but during the emergency when there is significance of the benefitsso could go up and the harms considerable if done lightly but there may be a justification during that circumstance. >> host: in the subtitle of the book terror in the balance to refer to a courtem system.. what are some of the court cases that have changed how we look at terrorism and how we treat the aversive interrogation? >> separate -- surprisingly

they have been silent. we have not had but the supreme court case, but if people are challenging the bush administration bent the supreme court to but to have military trials other than civilian o triose for the respective members about kind of what they say we don't like this so muchst beaches is a dead these types of words but also

feeling very strongly. >> host: this is your chance to talk with law professor eric posner are handled is that booktv. we will take your calls over the next couple of hours and also taking questions from our audience in chicago as well. what is a term global legalism? >> guest: that means the excessive faith as a solution to problems of

international cooperation and security. >> host: is their international law? >> there is. >> host: is effective? >> guest. >> ltd. circumstances. of abuse that i criticized is that lowered may be in academia. >> the problem like war and climate change, it goes all the way. the argument in the book is that there is problems with it is very difficult to sell those if not international lot. >> host: your book you write politics and idealism and careless thinking can

the inspired to say in the first and loan resemblance to run the looking at international law that is. >> you go criticize a violation of marvell arms but to other countries violate the natural law because they can get away with it. now some circumstances they cannot that is from the economic perspective. and the conditions under which it is an effective so when you design new constitutions is more than the effective or ineffective. >> what our social norms? >> they are hard to define.

one could think of them that. >> host: although people will. >> guest: emily post and people who writes etiquette books lowered giving advice how they should be cave, . >> host: but you ride to legal rules are best understood as a efforts too. >> one of appliances off from a service of spent too much time.

>> host: the implicit picture is you have a government and one that enforces the laws and that is how it is going on. >> it is another tradition. but most of the everyday lives, the behavior is not governed that much by the law but instead covered by social norms or another way, how people perceive us or our instinct. >> i am waiting for trish. >> it is expensive to respect banners to enforce the social arms. >> one of the funny things

is you also see people behaving in ways they do not want to. >> there is a social norm that men wear ties and suits the way that we will do. >> this is our started thinking about it. why don't people drive tour they want to? they don't. that is the interesting question but people tried to meet the not very successful. >> host: what does that have to do with a lot? >> perhaps there is too much

crime as a standard approach to seven new hope the crime rate goes down. >> host: but it is the policies of the government and what they choose to use. but in some inner-city areas, that may be the case that if you break the law that will enhance your status proposal people who break the law even if the lot is made stricter than those laws in a break so it is worth some incentives to be created if we don't take into account what is motivating people.

>> host: one more book and this year rose with privacy. >> but the decline of the community and the rise over the rule of the loss. >> >> of the rise of the rules. >> this is a nice after the old days that people did not commit crimes very much. why? not because there was a bolide police force and all of the apparatus that we rely on today but because there was no privacy. if you did something there was marvell you would be to find out of town.

>> there is a cost benefit employment data you know, we're constantly being washed? put they came later probably. but you have to do with all of the bureaucrats and police a man of be as sympathetic for sensitive to the needs of a community that's it depends and business "in-depth" her from the phone numbers are of the bottom of the screen.

>> suit also go to twitter. >> the web with your question nor comment. mr. president i strong. >> 4.5 million people ofin those in iraq down those that come home and 6 million people came from a first eas atomic bombs in the stern, though her from the.

>> there was not part of the war unless i am not sure the reference to the atomic bomb and maybe i misunderstood the but these words may and may not have been justified period from.

>> as is customary with international law, also violating the rules and it has not happened before but at this.not >> sit there will continue to work hard that is filled with other soldiers. why haven't they stopped from happening? and am i scotiabank try toak.

explain it boils down to the fact we don't have a world government or international court powerful enough but instead but those that have been established to address those atrocities, maybe more sense at the time they were invented then today when we have problems like al qaeda. >> host: in your 2,005

book, you write some global problems may be on so-called. this is directed to a person but consistent with all we know of human history. >> i do think that is a problem. the maggot there is ever going to be the treaty to address climate change, why is it so difficult forh countries to do this that the global level? >> but we still have tohi

cooperateng and something we have to live with. >> host: is the un and in effective body for arbitration? >> no. it is not effective and is partly by design. the main part of the unitedng nations. >> guest: but then no b states continue because with

respect to some issues, that would cause serious problems they're not willing to tolerate. >> the first weekend of june this trivia sponsors the printer's row live fast held downtown chicago at the oriversity center. south of the loop and with professorrograw eric posner for the "in-depth" program also covering several panels here at the lit fast this year and we can watch those live. recovered seven is today and three more this afternoon that you can see. a we also invited a studiotalk audience if those areyo interested been talking with the judge to -- is the ap

candidate but to say i live in a park illinois but my question is with wikileaks what legal challenge by the possible or desirable regarding international lot of governing the internet but also regarding louisiana paternalistic publication of classified information? >> guest: that is a complicated question. there is no international law governing then. fen interne. there's a number of i agreements and protocols to ensure that it functions across borders. but no international body you can go to do to challenge lowered defend wikileaks people. >> it is difficult to

enforce for the reasons but strengthening them would not do good h because the whole point* is the institution or the people that you need to prosecute or go after are spread around the world and the united states does not have the power to reach them. .po . came from the galatians, and it was first used as a handkerchief. but my question to you is what does religion have to do with international law? i mean, how can countries, states come together with the belief system that was brought to us for people who believe that the earth was flat? and how can we get a movement to get rid of -- [inaudible] that's one of my questions. thank you. >> host: any answer for that

caller? >> guest: well -- [laughter] maybe at a more general level maybe what the caller's question illustrates is the tremendous >> it's the tremendous diversity of opinion not just in this country, but around the world. that's why it's difficult for countries to get together and agree on international law because legal -- any kind of legal enactment assumes something like a consensus, at least the majority and even in a particular state where people have similar values and interests, it's hard to get dramatic legislation enacted. at the international level, this problem is multiplied enormously. there's around 200 countries, people in these different countries with wildly different views, different religious views, different views about policy, and this makes international cooperation very difficult. >> we have a question from the audience. tell us who you are, sir, and ask the question.

>> i'm david curtis, a resident of the chicago area, and i think a lot of citizens have looked at a certain degree of stress in the last several supreme court appoint wants where democrats are aligned on one side, republicans aligned on the other side, and my question to you is to what extent is this really new? i know it's not really new, but what extend to you see it being increased, and what extent do you think that's a problem? >> yeah, i think i agree with the premise of your question that this is a worry smit trend -- worrysome trend. it's not really new, and there's examples historically where presidents nominated and 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 skepically by the supreme court, but i think the problem has gotten worse since the 1960 and 1970s and the reason is that the supreme court particularly in the 1960s under chief justice warren became much more aggressive about advancing political or ideological views about the meaning of the constitution, and it became more aggressive about striking down laws, particularly state laws, and this created a political backlash, of course, most famously with rowe vs. wade. the people began to believe that essentially if preach court justices of their party were in the majority, then, you know, their ideological views would be prevailing in the political arena, and so this accelerated with the borg nomination in the 1980s and now both in the supreme court and lower federal

craters, there's -- courts, there's a view because the justices have that much power, it's important to have -- it's important to have justices in place who support my or your political opinion. i don't think there's any way out of this until -- unless the supreme court decide on its own to be less aggressive about striking down statutes. >> this tweet for you from neorepublican. justify torture on cost benefit analysis, but whose analysis is used? anyone who justifies torture in >> i should comment on that. okay. [laughter] well, let's see. first of all justifying torture on coast benefit analysis, that's not quite what we were trying to do in the book. what we were really interesting in understanding is why people

regarded coercive interrogation or torture as horrible and shocking compared to other things the government does that are not nearly as controversial. putting somebody in jail for life is a way of imposing a tremendous amount of harm on that person, but we tolerate it because -- i have to say the benefits are greater than the cost. the costs of the person are quite large, but the benefits to society are large as well so if you take that logic, apply it to torture, the same sort of analysis applies. it's just that the empirical question of the effectiveness of torture and its sort of second order effects on people are much more comp catted -- complicated. now, to be clear, i don't think the bush administration ever did a good job of justifying torture, and i'm not persuaded torture was an appropriate tactic in the last ten years. in the book, we address the more

theoretical question which is what's wrong with it if the government is allowed to put people in prison? to give an another example, under the obama administration it's considered okay and uncontroversial to kill people without giving them a trial and the traditional procedural protections that proceed the death penalty. well, except for extreme forms of torture, killing is worse than torturing him. it's used to justify this practice, so i just find these puzzling, but having said that, torture is an extremely ugly practice, not something you want to do unless you're in an emergency and there's an immediate threat to a large number of people, and even then, there are strong arguments that it's -- that it won't be justified. it has harms worse than whatever

short term benefits it has. maybe my uncertainties about these factors make me an untidy thinker. that's the best i can do. >> you write, "even when government makes mistakes during emergencies, judicial intervention cannot improve matters." >> yeah, so taken out of context, that might sound more critical of the courts than i am. the problem, which has been pointed out by even supreme court justices and many other people for many, many decades is that during wartime, the courts are in a particularly difficult position. justice robert jackson made this point during world war ii in some famous cases. it's hard for the judges who don't have military experience, who don't have much foreign policy experience to be able to second guess the government when the government says, you know, we have to put those people in

jail or we have to send troops in that location or these sorts of harsh tactics are necessary, detention or military trails or what have you, and the tradition in this country really up until maybe the last ten years is that the courts are silent during war. they just are not willing to tell the executive that certain wartime tactics are unjustified. now, you asked or you mentioned earlier to me that i said that the courts don't do much in the last ten years. i mean, that's a little bit of an exaggeration. they have done more than they have in the past. they did review and criticize executive policy much more than in the past, but like in the past, they ended up not issuing decisions that caused dramatic changes in executive policy, and the reason is these judges, you know, they're judges. they are used to interpreting contracts and addressing, you know, race and sex

discrimination, and certainly the country's at war and they're asked to evaluate term policies, and they don't feel qualified to do that. >> one e-mails into you. in connection with your analysis of the rise of the executive, what role does the parallel rise of independent agencies like the fcc, ect., how do these agencies differ from the various government departments like the agriculture department, ect.. >> that's a very good question, and so you know, people don't know the legal background here, but briefly, one of the features in the rise of the executive is the growth of the bureaucratic state so before the roosevelt administration, most of the things that, you know, are

problems like pollution and fraud and so forth, they were dealt with by state governments, and then in the last 50 years. the federal government has to considerable extempt taken -- extent taken over, and one of the issues was both during the roosevelt administration and since then is, you know, who in the federal government should run the agencies that do these tasks, and ultimately most of the agencies, let's say the epa, for example, are basically controlled by the president. the president appoints the head of the agency and can remove the agency. there's certain independent agencies and the most famous, of course, is the fed, where the president has somewhat less control because he cannot remove the people, so how do these fit in? well, they are constraints on the executive relative in a world where the independent agencies did not exist, but relative to where we were 50 years ago. the -- they tend to enhance the president's power because the

president does have a fair amount of power over independent agency over ordinary agencies. >> another question here from the studio audience. ma'am, tell us who you are and what your question is. >> i'm edna from cleveland, ohio, and i came here for the printers row, and my question, i hope you want to comment on it, i don't know whether you will or not, but i'm wondering about arab spring and the people's move wants in the middle east. sometimes we're intervening, other times we're not. what about international law in that regard? >> so, international law as it often is to the disappointment to people is silent on the arab spring. it doesn't really say anything that's relevant and from the u.s. perspective, the arab spring is a matter of policy, and there's a basic tradeoff.

the u.s. government wants to promote democracy, but at the same time it's afraid that if it puts pressure on the authoritarian leaders of the country, the country will just collapse into chaos and anarchy, and that's worse than an authoritarian system at least in the eyes of the administration. some people might say that 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. it's more likely that they simply find the left and western institutions like the rule of law more attractive and democracy more attractive than the author tar -- authoritarian systems in which they live. >> thank you, ma'am. we're live here with professor and author eric posner for our monthly in-depth program.

next call from sureman oaks, california. please, go ahead. >> caller: hello, my question relates to climate change and international climent justice -- climate justice. has any attempt been made to your knowledge to determine an approximately what future year or decade the united states contribution to accumulated atmospheric carbon dioxide will no longer be the single largest contribution from one nation as it is now after being the greatest national emitter until which time i suggest our nation has an outsized obligation to take the lead in reducing fossil energy use, pioneering green energy measures and technologies, and organizing a global response to climate change. which the u.s. so far has refused to do, clearly, thanks mostly to the republican party's

climate policy irresponsibility. >> great. we got your point. thank you, caller. prefer posner. >> yeah, i agree with the caller's sort of general view. first to answer the question, china will overtake the united states as the aggregate emitter of greenhouse gases in 20-30 years. i don't know the exact amount, but that was not the point the caller was trying the make. the point the caller was trying to make is the united states has made a substantial contribution to the problem of climate change, it should try to lead a response. you know, i agree. there should be, you know, in an ideal world there would be a treaty resulting in the reduction of greenhouse gases to tollerble level. i agree the republicans dragged their feet and there's unfortunate and not justified, but the problem is that the

climate tritety is not going to -- treaty is not going to work unless china, india, brazil, and other huge industrialized nations participate, and they don't seem to be willing to do that. that's the problem. now, why -- why are they not willing to participate? i should say they are willing to receive money, willing to receive sub sigh dies to -- subsidies to reduce, but not willing to cut back on their own with climate emissions. why is that? the reason is not denialism. iraqically in china where the government is reluctant to join a treaty, the government doesn't try to deny this is a problem caused by humans. what i think is going on in china is that they, you know, they got other priorities, and if you have been in beijing or any other major chinese city, look around, and you see immediately, you know, the massive pollution. the pollution is particlat matter.

you cannot see far, and it's horrible to breathe and open your mouth. the idea that the government wants to adopt policies, the immediate thing to do to get a political paveoff is -- payoff is to reduce that type of pollution rather than greenhouse gases that are invisible with a longer term effect. this is a problem. i wish had 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. >> in your book, "climate change justice" this is the picture on the front cover. dupe where this was take -- do you know where this was taken? >> i don't. it was chosen by the publisher, but it's a great picture? >> in your book, you write this, and this was coauthored by david. first of all, you say our argument is unusual. "we strongly favor a climate change agreement because it helps poor people in poor nations, and we also favor

redistribution from the rich to the poor. 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." >> so, yeah, you know, the popular debate in the united states, the issue is just climate treaty or no treaty, and people don't go into the question of how the treaty should be designed, but in the academic literature and in the popular debates in other countries, there's a strong debate over who should pay, you know, which countries should bear the greatest burden. it's clear all countries have to bear a burden, but the question is what country bears the greatest burden? this goes back to the caller's question. you know, there's two basic claims. one is that the u.s. should bear a disproportioned burden because the u.s. is responsible for the substantial amount of greenhouse gas emissions so far, and the other is that the u.s. and other

wealthy countries should bear more of a burden because they are rich and other countries are poor. one of the arguments in the book is that, in fact, these claims while intuitively appealing are actually much more complex and problematic than they first appear, and so, for example, you know, if you make the rich countries pay, it's just muchless likely they're going to participate, and then there's also a problem which is that -- because of the general manner countries enter into treaties when it's in their interest. if they enter because down the road the cost of climate -- the benefittings of avoiding climate related disasters are greater than the short term cost of reducing emissions, but then you say to the country, you have to contribute in a few extra billion or trillion dollars

because other countries are poor. the country is not going to join into it because the countries don't do that. countries enter into treaties when it's in their national interest. that's how politicians get reelected. other countries redistrict wealth through foreign aid, and that's a good thing. that's a better way of helping countries rather than through a 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 such -- that can be quite challenging. for example, i mean, one of the problems with foreign aid is that, you know, you give money to a foreign government, and the foreign government is corrupt and ends up in the pockets of officials rather than for food for poor people, and in the foreign aid world, people try to come up with various ways of addressing that problem. well, if you redistrict wealth through a climate treaty by giving subsidies to a foreign

government, then you're back to the initial problem that the government, the money might be lost to corruption rather than going to the benefit of the people living in that country, so, you know, it's best to try to keep separate these different goals. one goal, deal with global warming. the other goal is help poor people in other countries, and you adopt and pursue different policies for each of those goals. >> this is booktv's in-depth program live from chicago. eric posner is our guest. next call comes from freeland, michigan, please, go ahead. >> caller: yes, sir. thank you very much, gentlemen. i'd like to ask about something you talked about a little bit before about supreme court, and the politicizing of it, legging from the bench -- legislating from the bench i

guess. these people make political decisions, not really above politics or anything like that. shouldn't they have suggested this? shouldn't they basically be elected like other politicians? would that make more sense? i was wondering what he thinking of those kinds of ideas. thank you very much. >> yeah, well interestingly in many, i think in most states, judges are elected including the, you know, the high court judges and the states who make institutional decisions, and i do find the idea of electing judges appealing or not as outrageous as most lawyers do, and i find it appealing for the reasons you give. that said, you know, i don't think it really works for the national government. for one thing, we have to amend the constitution which would be probably impossible to do. another thing, i do think

there's a virtue in shielding the judges from popular pressure otherwise, you know, although i do agree they are excessively politicized, i think they would be more politicized if that happened. i think a more modest sensible view, a sensible reform would be to reduce their terms from lifetime tenure to 12 years or something like that which is the norm in places like europe and other countries. life tenure is extremely unusual around the world. that, too, requires a constitutional amendment and is probably unrealistic, but that's the sort of reform i think would be effective. >> what do you think the 7th district judge richard posner would think of that proposal? >> i don't know. i'm a little weary saying what i think his views are, so i don't know. i'll have to pass on that question. >> eric posner is our guest.

here's his books. in 2000 he wrote "law and social norms" "the limits of international law," and then he coedited another book in 2010 as well as the "executive unbound". law and happiness, what does law have to do with happiness? >> well, it doesn't have that much to do with happiness. it maybe has more to do with unhappiness, but there's this movement going on which is quite interesting which, you know, so the government when it passes a low or adopts a policy, it has to think about how it affects people, and often a method they use is cost benefit analysis and

figure out how much people would be willing to pay for this and willing to pay to avoid this. a 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 to let them continue to operate, well, we look at how much people are willing to pay to avoid the harm, you know, and compare that to the, you know, the higher cost of paper. the happiness approach, which has been proposed by psychologists and some economists, say you shouldn't look at how much people are willing to pay because ultimately that doesn't measure what matter which is their happynd or subject of well-being or the sense 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, you know, how are you feeling? how are things going for you on a scale to 1-10, and they might

write down 7, 6, or 5. you look at the conditions. are they living near a paper mill or airport, and through statistical analysis you figure out the sorts of things that tend to promote people's happiness and the things that don't. in the united kingdom, they are aggressively pursuing this approach. it's hard to know what's going to happen, but it's an interesting alternative to cost benefit analysis which many people have criticized. >> who is your co-author and what's your relationship? >> cass sunstein is in the office of administration affairs, oira, the office of management and budget. he's a political appointee of president obama and works in the white house and oversees what the regulatory agencies are doing and is one of these people

who has been a promoter of cost benefit animal ice, but he has a nuanced view of it. he's a friend. he used to be at the university of chicago. he was there when i arrived at the university of chicago in 1998. we've written a number of papers together, and we did this book together because we both found happiness literature quite interesting, and we wanted to explore its implications for law and policy. >> now, have you been at the university of chicago long enough to have a relationship with president obama? >> i don't have a relationship with them. i knew him slightly. i went to law school with him so i knew him a little bit there, although i didn't see him much mountain hallways, i ran across him on the playground, and so, you know, i talked to him every once in awhile, but, you know, we're not pals or anything like that, and i wish him well, but i haven't gotten a christmas card from him or anything like that.

[laughter] >> well, martha e-mails into you and sandra day o'connor retired and looked at laws in other countries for certain cases before our supreme court. what is the stance of our present supreme court justices regarding this. i simply add what do you think about looking at international law when we put an eye toward u.s. law. >> yeah, this is a big controversy. the current justices who support this approach include justice anthony kennedy, justice breyer, and i think justice society mayor -- society -- sot omayor. the liberalling of the supreme court. cass sunstein wrote a paper on

this, and i don't think it's a bad idea as long as it's done in a prudent and narrow way so just so everybody understands, this controversy arose because high profile cases, death punishment cases, for example, the supreme court, and i think usually justice kennedy said, well, this particular practice like executing people who committed crimes is juvenile and people who are mentally retarded, yeah, the united states does this, but no other country. we should take into account the norms as they prevail in other countries, and, this upset a lot of people, especially people who supported the death penalty partly because this methodology was introduced in such high profile cases that it was instantly controversial and it's also intentioned with originalism, the idea to interpret the constitution according to the understanding

at the time it was ratified, but the fact is it is useful to look at what's going on in other countries. it's a useful form of information, and in the united states, it happens all the time in another way so every state in the country is sovereign in a certain way. each state has its own court system, and the state courts for hundreds of years when trying to resolve difficult questions to look at what other courts were doing in other states, a form of borrowing law, 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 just doesn't become pretext for an outcome of an idea you support on political grounds that you don't want to admit. >> eric posner this tweet from w. kennedy. what's your opinion of the court ruling on citizens united? >> well, all right, so this is a little bit outside, you know, my

field, so i'm he hesitant to say much about this. citizen united was a supreme court case which struck down certain campaign finance laws on first amendment grounds. i'm not a first amendment absolutist. there's situations where you want to constrain speech. there are ones we're familiar with and have no problem with such as fraud and so forth, and others are more sensitive of that in the electoral setting, but the people worried about money-corrupting politics, they have a point. you don't want to assist them in which the very wealthiest people because of their wealth have more influence than other people do. that said, and i hate to -- my mind is untidy again, but on the other hand, when the government tries to interfere with the way people spend their money in order to promote ideas, you know, you can have bad outcomes,

and so, you know, the "new york times" is a wealthy corporation promoting ideas all over the place. we don't want the government to regulate them even though the fat they are wealthy, have outside influence, and so the opinions of the people who work there and the owners probably have more influence than those of ordinary people. .. 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, 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 >> i would say that is not necessarily holding up.d you have dinner cities with br crackhouses and activity operating in broadht daylightbu and people the move the criminals are. but they have theorit retribution on a criminal if they cooperate with the authorities.ies and don't have proper protection from the authorities if they were to speak up. could you speak on that? >> this is a terrific planes and i was speaking with

generalities but 19 century small-town there was not the crime problem that you see today although there could be horrible things but it is not illegal for example, discrimination so whenever the norms were would prevail because people would watch what each other was doing. quite right these could be reversed also the explanation why a organized-crime is far fallmes within a city. sometimes it will supply services to people when they provide support in return and as you point* out where so well organized and powerful everyday people prevent them from core

operating with the authorities. it is a complex problem and tag dollars a point* negative a in my earlier statementiv a simplified the reality. >> host: how do you choose what you read about? >> guest: it is what i ams interested in and what i'm know. f fi fiat familiar with the field already can i make and contribution? >> the next call comes from portland oregon. good afternoon.rega john mccain delivered a speech about torture then will the op-ed piece in the "washington post." and it he said it was a

torture metz says sen good intelligence committee but then c continued where a purchase will say anything whether if it is true or false.you but did you talk to john mccain and could you comment on his position in also doesn't this put inan harm's way the american military personnel who are in the combat theater in jeopardy if taken as prisoners? thank you.eb >> there is the debateure whether torture contributed to the osama bin login

capture. and the answer is we don't know. maybe not. i have no idea. but as i said earlier i don't think the bush administration ever made a i case that torture was a necessary. part of the problem is the bush and administration sacrificed credibility that nobody knew whether to believe it or not.ill i do not agree with the argument they would sayhat anything but i don't think that is right. people are constantly threatened by criminals.our tell me the atm number or i will hurt you. what do you do?o i don't know of using force

will work i don't know. these are complicated questions. there are those in the military who do interrogations' including the colonel who is thelo ok hei of interrogation with the air force.ib he makes a powerful argument it should not be used under any circumstances but did say u.s. forces although not authorized will be up people to get information t. rich's why he has to work hard but if not long term is much better not to. so these are complicated empirical problems with noand particular insight and i am happy to defer to john mccain and i do understand

i don't think it works very well. >> that is why it should not be used routinely but maybe in the most extreme circumstances and john mccain agree. what if you w have a ticking time bomb? he said maybe in that case. and that is my view as well. >> host: is that the same conclusion in your" seven -- 2007 book? >> i am a little more cautious that was in thebook book. it was written in a moreefen abstract level. we were interested in thethe question why was puzzling i about mccain he thought it should be illegal but thought it was proper to commit torture in the extreme circumstances. that is puzzling because bute

it is left with a ticking time bomb. this issue is thely focus ofhe the book. in retrospect may be be were too casual about the difficulties of the issues of which i do think it is difficult. >> host: email, you claim the bush and mr. setian did not exercise any more executive power than other administrations bert w. expose your allegiances when you fail to mention the massive number of the cheney bush signing statements that of some of them from legal liability from the bows the president signed. why isn't this a form of tyranny? >> arrow zero paper on

signing statements. not the sort of thing people would want to read. it is verype technical but. >> they have no legal effect as a practical matter. if somebody breaks saw saw -- below what and by the way the president issues a signing statement saying though what is valid because it violates the power thehat judge would ignore that.at if has no legalem standing prepare you may think of it as a memo to the executive branch. this is the president's understanding of what the what is.an then you take this into account as you go about your business. because they are vague, .

>> their troubles some in some respects and based aggressive interpretations but bush got these from others to find the same issues with president clinton or ray given that there is not. >> the next call comes fromeah. ohio. >> caller: they arrested a serbian war criminal against bosnian citizens inosni violation of the law. but the trial is in at the

meadowlands. >> if there isn't a law should there be that but the course that is trying, called the international o tribunal for the former yugoslavia established back in the i 1990's during the civil wars but people understood there is a civil war going on soor those who were committing war crimes they were against t

people in other countries. they thought the war criminals approve your did not improve so the tribunal was set up precisely to ensure thatet people would ultimately be prosecuted. there is lowered jury. and the number of people arean concerned if you have the internationalrn court you know, how theth protectionsbe that 78 other people are convicted medicis good trade-off that you make.t of right at the heart of the debateat about international ies, if you leave everything just to the country they may nott -- do the right thing orot prosecute war criminals but if you have the

international system than people the factors that are unrelated to what they did with the international politics or the influence of the outcome. >>th host: professor posner either the limits of international law that you wrote about the nuremberg trials and that it was successful. but at the same time you said the settlement with tokyo after world war ii was not as successful. what is the difference? >> it is a matter of historical understanding in most you both think it wasy? successful. >> there is a negative

reaction to the tribunal in japan. which many people think it was just justice. the japanese were not impressed by the tribunals or persuadedrt of anything worse.t, the war about nuremberg, atac the time they thought it was just justice as well but over the years the nuremberg tribunal was justified w because nine it was uniquely horrible but the japanese to a lot of horrible things but not to the scale of the of that the nazis. d many ways what japan did was a sort of thing countries have been doing for centuries and one thing that losses troubling is the

nuremberg and tokyo b tribunals the allies have the defense but we would not be prosecuted. although they committed war crimes that is off the table. added was less of a problem with nuremberg but itthbu more of a problem with japan where one could make the argument that guess they but started the war but in terms of the atrocities committed committed, both sides were in bad shape. >> please go. ahead with your question oryo comment for 39. >> caller: thank you fork taking my call. two questions. leading up to the financial bubble that blew up in ra 2008, .

>> what are your views of the recent decision that corporate entities can contribute boundless money to be elections and political campaigns? you.st: thank >> guest: he talked to drop the citizens united case earlier. >> guest: i will respond to the first question. that is very hard. the short answer is not they violated criminal law but there is a lot of factors involved with things that were unethical but if you

take the rating agencies they gave their opinions on what the assets were. there is no evidence that they were riskier and gave them high ratings. the best evidence is they were fooledl like everybody else.el most dividual some of investment banks, everybody.ey b it is because they believe the models that the historic day she and the historical data. >> the co-author of the limits of international law.on >> the professor from harvard law school is -- used to be a professor at the university of chicago. he was ahead of the office of legal counsel in the bush and administration and most well-known for having

repudiated the torture memo issued by the department of justice which calls day's show the of course, of the interrogation did not violate u.s. what and also. >> host: could you please discuss theus concept and practice of federalism as it has changed over time.tes federalism is a principal the state rather than the national government will control a substantial amountib

of the state's thinker they should regulate as much but one example is abortion. the federal say they should come up with whatever policy so thoseha constitutional dry buys and 18th century my view it is much more difficult to sustain because basically as a result of technologicalmore changes in transportation, we have more of been national market and marvell nationhe. whenever the state regulates p the coast that is one of the cost of federalism and ofcent the problems in the 18th century and i think it is aur

trend one has to recognize. having said that come on they are comingge apart staged a. >> might feeling is limited.nati but at the federal level it is a national problem. >> host: are you a member society?deralist >> no. rea i am not sure of the details but i think there wasss founded from.

>> call me on the phone with the subject matter to see the activities that creates criminal activity or 10 is to do something to a separate criminal activity.ng with the drug laws that criminalize the possession and use ofat chemicals that in and n of itself it is not like murder or theft or rape if another person is harmed by the specific use of drugs. as i understand it, . >> they have to have

agreement from the public. particularly our by kim focused on how this may operate with the minority sections of the black, a ghetto, hispanicob to see where these kinds of problems are accelerated as to my understanding. >> guest: again, not something i have done much work on and i am hesitant to give my views that are not informed by its the point* he is making is drug use is called victimless crime. li it might harm new but is that a reason to make it. illegal? i don't know. it is a tough problem we have the era of prohibition based on the same theory

that although lead to an early look them do what they want the certain types maybe there were so harmful it leaves two committees and families provide on how strong instincts about whether drugs should be the go but i am conservative enough to think unless we have very powerful evidence that drug regulation is extremely harmful, we shouldem. continue with the current system. i am h uncomfortable with a very long sentences given. >> host: in your book new foundation of cross benefit analysis and the defensive mayorrr rich actives that no

state would required to but then as the opposite sex, and free pretax the rights. >> that doesn't seem fair and also o with the constitutional rights of gay americans. >> i do think the act isit unfair. i did not support its. this is the thing.ates this is what states should decide on their own taking into account. >> you have to allow game bearish because as part of a constitutional law that is not the case. we try not to protect minority interest. mine are powerful enough

that. >> in fact,, movingd k upward.o >> we will have thinking we have popular opinion. my instinct is there is not as strong argument for judicial intervention but it may be justified. it is hard to say. >> host: the next call comes from. >> car was one of your students at george mason ofyo economicsu program and california and you were excellent. good to hear from you again. my question is what is your opinion and critique of the international court to see

if we should ratify the. >> 1999 they go into operation and what it is supposed to attack those does anybody anywhere in the row could violate the international crime. genocide come a violation of the losses and i have beenaria critical. and understand the humanitarian temples falls behind this but it doesn't make sense or that it would work in the matter that is attentive prado when we have criminal courts in the domestic system prepared to the degree people saw recognize the would not

prosecute under the discretion of richard -- judges. >> you agree corrects wish to be criminal and criminal behavior should be excused crooks so the system works relatively smith. cy but it is only effective bid is surrounded by institutions who have basically similar values. >> there is no internationalfloa governments of the criminal

court itself has its own prosecutor has brought us eight own system. because international crimes are committed is still we all over the world, the prosecutor unavoidable a half of the enormous discretion to decide where to focus his energy. that is very dangerous because people in different countries think they are being picked on. we're ready to show your acting'r for a partial day. you canrt create a political conscience and the cost is to shrink and because it isn't tied to the democratic political base. the problem has arisen in africa the international criminals court has pursued prosecutions in africa. in many cases they lied but once they were involved to say we've changed our mind.

with this tends to undermine the legitimacy of acirc corporate go under the circumstances there is probably a big reason not to join although i think theyt have beento pragmatic to givee . check-in to the icc. >> what is the professor think of the g.o.p. filibuster nomination to the court of appeals? >> >> this guy is back to the earlier question of the post localization the supreme court and by eight was

nominated by president obama for the federal appellate court of the ninth circuit and as a result he withdrew. i have no views. >> and know they're qualified the. >> 22 tivo how he wants and the wave of those support the benefit is. >> that is probably a high of a w qualified people.e co that is troubling but in the

and i don't find a filibuster bothers me. >> please comment on the patriot act and the then bed judicial review or lack thereof. >> it was a statute but a lot of these maura breen debt but i don't mind to switch to analog. s some are more trouble some. i thought that after 9/11 things heated up. >> have you looked on the

floor it is unreasonable to think they should have more powers to go after the terrorist. it is hard to know how they balance liberty and security but it seems likely. one could quarrel with thetime details but at the time he. is proud because not it wast unconstitutional by it this is a picture of the patriot act. the next call comes from oregon. >> caller: i would like to ban order government's ability

to create money. what about the fed? >> could we democratize the monetary policy by going back to the 1913 models to put the reserve under the treasury's of the money power belongs to the people? open to thate tt policy with the excellent infinitive withw security. >> that is a great question.t

>> but the question might be shouldn'tb of congress makey monetary policy? that would be moreo democratic. but that make a good idea to embrace for the central bank but traditionally it had to get permission from the tap which isr responsible.e >> the usual concern is the elected politicians areied always worried about the last election if they have control over monetary policy they will inflate the money supply to create the

artificial boom just during the auction. there is some time or the economy will bloom than when you do that because serious problems. that is the reason to give up the authority. >> it is possible to congress and we don't know becauseit n before the fed acd monetary policy was. >> host: -- day conceptualize but i would be nervous about doing it.th of those polled fed has done a pretty good job with world war ii to manage though monetary supply. with has not made serious mistakes tous abolish to create other institutional. >> newport beach you were on with arid prose under.l my question is this the

matter how could this be? it seems to be well understood and wonder why there is so much today. my ownou view is theicat application is basically for and punitive for the intelligence values that are a smokescreen to hide the vicious and sadistic motives for those who want to do that. >> it is possible.f and is complicated. does have value to

prevent those who were armed it should have been abolished but it was possible that people's countries use torture but my reading of the history of the people who do find it useful but they're not crazy enough to engage in a practice that is perverse making and harder to govern.lu what has changed in particular since world war ii, i would say starting with the alignment, people just come to think of it as a peculiar horrible thing to do and i agree. that is why it under almost all circumstances it should be avoided. >> host: as ad

follow-up, wouldn't he be willing to comment on the legal reasoning of the torture memos? >> yes. yes. i wrote the op-ed about them but it $0.1 you havean. limos and heartbeat they may claim some of executive power that there controversial and without the acknowledging that they are. and make zero years cringe. we tried to be as narrow and possible.th but we do receive more grief than justified because theyl write with a two digit dates tradition of jurisprudence. then the lawyers examine the

interpretation is. then these include people like skelly at and also others that are distinguished enough proof of these people have continuously learn to and try to become a bothroc could i it to another one.s >> you may say it isu terrible.o >> gettelfinger they believe that different from their predecessor but the administration come withio the

whole they denied justify torture but the intellectual military action if other countries which is hard to justify based on what the constitution says there has to be a declaration ofsati war you see that but also the argument we could interpret in light of the the president's executive power. t if you take their context into account i think thew memo is less shocking or less extreme than it appeared to people. >> host: this is an "in-depth" our monthly series with one author featuring his or her body of work. live from chicago and we have about one hour left and

we will be right back

>> host: and we continue live frhc >> host: may continue live men professor, showing ourou viewers some of your favoriter authors and i want to start with one of your favorite. >> yes. he was a german philosopher

living in the 19th century. why is he one of my favorite authors? >> he writes beautifully and something to aspire and is highly critical of conventional norms and using and what i read in my 20s it was at inspiring because you folks that you could saythou anything prepare you could that there is so that critical streak. >> what about neil is some? >> they do think he was skeptical about am i in mintval and in particular with you that jrue reason to build

the institutions not to solve our problems but that is consistent with my sense of things the last utopia of human rights. >> she wanted to. >> that could be dedicatedent to 700 tuesday system and academic topic i have been writing about it so his book is natural. >>

>> jazzier greatest influences d'arcy negative ago but is clear if youif bring lawsuits you pay the attorneys' fees regardless of who wins or losesir a proposal first-year lossth goal they ask you to live.

which rule is better? i thought show. >> although more mathematical is he's but we try to talk about the fourt a items, it is a very ad role person who's so committed but that is quite inspiring. he has written controversial things than this has got a lot of attention and when you hold public office people get upset and that is the world that we live in. it is very important to say controversial things but it s is enough to where people will get upset for doing this.ou f is a very good example.

>> we have spent almost two hours reviewing some of your writings. do you feel yourself is a disagreement? >> jintao speaking his more liberal than i amber from we have to write but i have to disagree. >> host: i will show you his books for what he writes about. and the social norm is the first book. global legalism 2009, limits of international law, 20:05 p.m. the cost-benefit analysis, i am sorry, a terror in the

balance if. >> back to a calls and emails said we will start with sarasota of lourdes. >> caller: good afternoon. my question is international law idea is talking about sharia law coming into the united states how would that be trumped?ut >> thank you very much.>> >> sharia law has no legalan standing in the united i states.ni the only law that we would enforce in the united states that is enacted by legislators common action at -- national congress or

the state legislature but the common-law. >> but sharia law has never played a part in either legislation or, lot adjudication.w there is a little bit of a controversy floating around. forget the source somebody said sharia law may be recognized but there is a very limited seven circumstances where the american courts will enforce the law.f, it is pretty technical but basically suppose there is a dispute between two peopleos and if they end up in the united states there bring a lawsuit against each other

so the american court press to perform sell for hundreds of years they have been enforcing these laws. b but the usually because they have very strong contacts with the foreign country. tivoli speaking it has been a uncontroversial after all they have a dispute thathat started in the united states.s we wanted to apply american law. it is not sharia law i don't be too be misunderstood but there are conceivable circumstances where somee foreign country has inc. sharia law and it may be

appropriate for those rules to apply for those to end up. >> professor, please comment on what he believesnt his theh ever-growing creative now is the prosecutors, in particular, the case of senator john edwards. >> guest: that seems like a loaded question. >> that is a concern thato prosecutors had too muchhav discretion in.us and they do because there is so many laws with about 588 -- violation baby-boom

politicians can receive moneye for their campaign sometimes it is hard to draw the distinction. that is why you have the courts to sort them out bayou have so much power that it is possible we should be worried about what they're doing.t v it is a complicated debate.he i don't know enough about the edwards case of what i have read suggests there is a colorful argument he violated no law using campaign donations but io don't know enough about the facts of the case to seven next call comes from las vegas. >> caller: good afternoon.l i'd like to ask you about the book the unspoken alliance, there was a big0s

thing i'm him. about six months ago. are you familiar with the book by the documents the history of israel support of the apartheid government in south africa mostly the '70s third babies and demonstratesra. >> which one did you go with? in iraq the south african one. try he may be trying to sell a nuclear bomb through mush -- sure griot nfl with room realize our sauce gain too much money but the result kinds. >> host: what is the question? >> guest: especially as a jew i am outraged by this but don'tut you think israelu should pay massive massive

reparations to the black people of south africa who were terribly injured by this for 20 years? they understand countries were supportive of apartheid but don't they know better to support that not the type government. >> host: professor? with you expertise come and how do you respond? >> i don't know the detailsco by eight new there was a collaboration between israel and southh africa to create a nuclear bomb.u israel has a nuclear bomb they were fearing they would be attacked. i don't know the degree of collaboration and i the one toca except the promise of the question but the broader question which is good is what you do when countries

collaborate lowered to horrible things come back to their people. the united states but during the cold war the united states would cooperate with the dictatorships of central america and so forth. and not because they wanted harm buy it realizing we are in the war with the soviet union.t if we say to these countries like democracy come if we put a military base on your soil than they all go to the soviet union and the unitedbe states would be the decoy. it is a hard question one address in you'll

have to make a compromise. the most famous was u.s. alliance with the soviet union and dying. >> and the cooperation was justified. budget hear you tell about one to have to evaluate on its own merit. but if any it resulted and you have to come up with a moral judgment.ri >> host: if one would reach the perot's of global

realism what would they concluded you're future and your views? >> the future is bleak or not as rosy as many advocates were supporters believe. this is another new pubic goes back of longtime so there is skepticism aboutaher whether international law or institutions can really follow up. the most serious problem is more and climate change. but that doesn't mean it is noiot viable and the international trade wall hasio been helpful to bring down trade barriers to increase to the wellbeing of people both in the hour country and import countries. there are other areas that are effected buy it is a utopian view that we are

progressing steadily toward a system of the international rule of law but it but i am working on a paper entitled copyright and when it is parody fair use? how do feeml about companiesies like disney removing pixel characters that were part of the public domain like snow white and copywriting or trade marking in order to controlin the way they're used to the media? . .

>> caller: and according to your logic, one state says blacks can't get married and another state says jews can't get married. >> guest: that's in the standard arming that's been made by supporters of a kind of a constitutional right, a right to gay marriage, and 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 started making claims, for example, to plural marriage, and that's probably not going to happen, but one still has to think about that in terms of the principle. do we say, 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. then you could say there are no restrictions unless maybe it causes harm to there'd party. that's not the way our constitutional traditions are. the state has a traditional right to regulate marriage. in fact major is a legal construct to some extent. they've been doing this for hundreds of years, and you should at least hesitate before you tell the states to stop or to radically change a practice

that has been -- that is in a way part of our identity. i'm not opposed to gay marriage. i thought it should be something that state legislatures should decide. you make a good argument that the state legislature might make bad decisions decisions and judl intervention is justified. i wish i could say there is a simple answer to this but there isn't. >> host: we're live from the book festival, and we have a question from our audience. >> caller: my. >> my name is mike. you answered two questions between the state and the administrative power. you said the growth has enabled executive power to rise, and the other you kind of dealt with a

technical question regarding the federal reserve. you touched on democratic accountability. me question is, what are your views? do you a cost benefit analysis where some tradeoff of democratic accountability is acceptable if there are corresponding benefits. >> guest: that's my view. a cost benefit analysis. although not the sort of one you reduce to dollars. but, yes, this is a general point. as the country gets bigger and the level of government rises-it becomes more possible for the government to supply certain types of goods, what economists call public goods. a clean environment, security, regulation of trade, prevention of fraud. that can all be done more efficiently because they're economy of scale. the larger things are, the more effective the government can be.

as that happens people become more remote to their government and they have less influence on policy. and that's correct. policy reflects the average views of earn -- everybody in this country, and in smaller countries you have different policy that reflects peoples view. my view is over the last 100 years, because of the reduction in communication and transportation costs there have been greater and greater benefits from having a lot of scale, from having big countries with very centralized government, and i think people -- now, you could still say that whatever these benefits are, you lose too much and we should have a more democratic system. i think if you just look at what's happened, people acquiesced in this. people seem to think it's working. there are backlashes from time to time, but generally speaking 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: eric posner is teaching at law school conducive to writing? >> guest: yes, it is. teaching and research go together very well because, as you do research you get ideas on how to teach, and as you teach, students ask questions you hadn't thought of, and that helps you come up with research topics that are worth writing about. >> host: after are you graduated from law school, did you good right into teaching? >> guest: i practiced for a couple years. >> host: what kind of law? >> guest: i was in the justice department for a couple years. you talk about the office of legal counsel, i was exposed to constitutional law. >> host: under? >> guest: under george herbert walker bush and clinton, over the transition.

>> host: what drew you to teaching? >> guest: well, i think practicing law is fun, and i've done a little bit since i've become a professor from time to time. there's a lot at stake, and it's interesting. but what's frustrating is you get a little issue and you have to address it -- or a problem, and then you move on and you can't think about it deeply. what i like at academia, you can spend months or years getting to the bottom of some problem. >> host: who should go to law school? >> guest: well, i think you have to find law appealing. i don't think it's a good idea to good law school just because you think it pays well and it's secure, because it may not pay well indefinitely, and it's not clear it's that secure anymore. but i think people thinking about going to law school should do some research. most legal practice is not like what you see on tv. at it -- it's not arguing in

courtroom. it involves giving advice to clients, and helping to structure contracts or deals, and people should try to figure out whether this sort of activity is interesting or not to them. >> host: this e-mail from pontiac, michigan. what is your opinion of justices antonen in scalia, elena kagan, and others associated with the university of chicago? >> guest: i think -- well, i'm not going to answer -- it's awkward to talk about one0s own father. i think easterbrook is interesting. i find him incredibly impressive thinker. i think, scalia, there's a lot

to like and not to like. i income the -- i think in the long wrong he will be remembered as a person with important ideas. kagan, too soon to del. dianne wood, i don't know her work but she is high re -- respected by people i touch. >> host: is the university of chicago special in a way? >> guest: i think it's special. the university of chicago is deeply committed to research, and the people there tend to be very serious about research. although some people are accused of having ideological agendas, and economists are accused of that. that not fair. they have the political views like everybody else. what is special about the university is the central focus is scholarship and research and people take it very seriously.

>> host: about 30 minutes left with our guest, eric posner, for this month's in depth live from chicago. >> guest: hi there. professor possessor in, thank you. my question is about global warming. i have thought that many scientist pointed out that the computer models which were the basis of global warming were imperfect, many facts left out, and i understand many of the original people who are on the i.p.c.c. have asked to have their names removed, and also that thousands of scientists, i think a couple years ago, signed a paper in which they believed that the theory of global warming had 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, et cetera, should be based on a theory -- i think you've written a book, the validity of which is in question. thank you, and i really appreciate c-span book. thank you. >> guest: well, from a law prove, not a geophysicist, and i have to go on what the experts say, and my understanding is that there is a scientific consensus. >> i know the caller disagrees -- there's a global warming and it's caused by human activity. the science, as far as i'm concerned as a nonscientist, to fine it persuasive. science is messy and individual scientist sometimes say is not cautious, and scientific

progress goes in fits and starts, and people make mistakes. i suppose it's conceivable it could turn out that the scientists are wrong about climate change. i think there's enough consensus it makes sense for policymakers to act on the assumption that it's a real and serious problem. and i do think, if you look at what the government does, i mean there's a lot -- 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 -- sometimes you just can't wait until there's a scientific consensus. you have to make a judgment that a problem is serious enough, that even if there's -- it's possible that it turns out not to be really a problem, it's likely enough that we're justified in going forward with some sort of regulation. >> host: eric posner, is cost benefit analysis only an economic argument?

>> guest: it's an economic method. it has to be judged on moral grounds. it's a method that regulatory agencies in the united states use to evaluate possible regulations. so, for example, should -- also while ago at the beginning of the bush administration, a controversy at been epa regulation that would reduce the amount of arsenic in water supplies. you can't get the amount of arsenic down to zero, and arsenic at low levels aren't going to hurt people. so the question becomes, what should the level be? cost benefit analysis is a useful way of doing that. you balance the cost and the benefits. i'm persuaded that it's a useful technique. there are a number of people that critical of that and

there's an ongoing debate. >> host: who gets to decide where the balance is? >> guest: well, the way it works in the u.s. system is the regulatory agencies ultimately the person who is appointed by the president or even the president himself, and often the decisions are not based on cost benefit analysis, and often the cost benefit analysises are done battery and you think the decision is not driven by a scientific approach but by a political approach and these are all problems one has to address. >> host: next call from portland, oregon. >> guest: i have a few questions. the first one is regarding circumstantial evidence. it's becoming more and more prevalent, and sometimes less and less credible. and the second question is more along social norms. what effect do you think the people such as rush limbaugh and so forth have on the social norms of the day?

thank you. >> guest: you know, i guess i don't really understand the first question. it may be that, as i mentioned earlier, prosecutors often have a lot of discretion and often when you prosecute a person and you send him to jail for a long time, it can be based on circumstantial evidence rather than the person making an admission or some witness testifying that the person did something wrong. but sometimes circumstantial evidence is quite powerful and at it up to a jury to decide whether it's sufficiently powerful. i think juries probably do a reasonably good job at that. i don't have any particular knowledge about its effectiveness. i just didn't understand the second question about rush limbaugh. >> host: talking about social norms. >> guest: an opinion leader. >> host: and who sets social norms. >> guest: one of the interesting

things about social norms as compared to the law, there's no way to change them. you change the law by going to congress and saying, please change it, and maybe they will or won't. suppose there's a social norm that bothers you, like wearing a tie or gay marriage or the opposite, the social appropriateness in men places. how do you change that? you can't go to congress because congress is going did he ever -- defer to the norms rather than try to change. the but this is -- opinion leaders, celebrities, influential people, can sometimes get these norms to change, just by making persuasive arguments or just by being who they are. >> host: an e-mail. what are your thoughts on why so many judges -- and he says those appointed by democratic presidents -- have so little

regard if any for the economic consequences of their decisions? >> guest: i don't whether that's true. i think judges -- i don't think there's a big difference in republican appointed and democratic appointed judges, at least that in that respect. there have been studies to see the extent to which republican and democratic pointed judges vote different, and they found some differences, not huge differences. and it may be that republican judges are a little more skeptical of that regulation than democratic judges are. that's just a different world view. i think that people tend to be conservative, worry about regulations, because they tend to think the free market does pretty well and the government often makes mistakes, and liberals and democrats ten to have the opposite views. they're more skeptical about the free market and more in favor of some kind of government

regulation. this is true about judges, and so it's reflected to some degree in their decisionmaking. >> host: next call comes from illinois. you're on the air. >> guest: yes. my name is tom sheets anive in the country, and i'm a farmer. also on the county board, so i got a lot of -- i know how government works quite a bit. i called in about the professor's -- i really think this is a great privilege for me to be able to talk to you. you said several things about scientist have a consensus about global warming and there's a lot of scientists that devil -- disagree, and i sit out here in the country, lived here 56 years, and last night i counted 60 jetstreams overhead. 60. and we're always told that all this stuff we're doing on the

ground is causing the global warming, and i personally don't believe in global warming theory because i have heard scientists say that maybe it's as simple as this -- and i've been watching this pretty close because i listen to a lot of weather services and stuff. and at the beginning of february we had an increase in sun spots, which makes more sense than anything. when the sun gets hotter, we get hotter. so -- then the scientists say it's the carbon dioxide in the air. anything under 30,000 feet gets washed out. anything over stays there. >> host: tom, are -- where are you going with this? >> guest: well, a jet uses 2,000-pounds of diesel from d.c. to california. that's more than i use on my

farm. i am just trying to -- why, when we go with experts that are telling us that global warming is having this effect -- we're getting down to the clean air act, which they want to get rid of dust. and when we combine our crops in the fall, we create a lot of dust. dust is cleaned out of the air by rain. we have all these brilliant people that have ideology agendas, and they want to control, just like you said we need to redistribute to make global warming to favor cheaper countries. why instead do we have -- >> host: i think we got the point. i think we got the point. professor posner? >> guest: i think the caller -- i understand the caller's view.

local conditions are often very complicated, and the government in washington doesn't always understand them and can enact regulations that don't make sense, don't make sense for a particular region, don't make sense for a particular area, where certain conditions are different from the way they are elsewhere. i think -- i'm going stick to what said before. my reading of what scientists have said is there's a scientific consensus. if it's wrong, that's -- but that's good in a way, but that would certainly be awkward. i think it's probably right. scientists have looked at sun spots. if you just -- there's these very simple graphs you look at and they show how much carbon dioxide in the atmosphere. it's been increasing for a century, and you look at temperatures and there's a close correlation where there's not a correlation between sun spot activities and temperatures.

that said, we need some kind of climate treaty, i think. you want to design the treaty in a way that does not put unfair burdens on some people. maybe one of the things the call are is getting at was maybe as he sees it, the regulation put excessive burdens on farmers fad not enough on airlines. those are difficult political questions that have to be worked out. >> host: but as a farmer in illinois, i think he's feeling a bit like a victim of some esoteric thoughts. >> guest: yeah. well, it's not just farmer in illinois. i don't have a deep understanding of climate change. i have to take the word of experts, and everything i write about -- i write about the law, which i understand, but the policy judgments ultimately they have to come from people who are specialist, and the world is a

complicated people. people specialize, get ph.ds so they can understand small packets of it. policymakers don't have any choice but to rely on this expertise. this is troublesome in a democracy because ordinary people are ultimately supposed to make policy choices, and if they feel like their representatives are making policy choices on the basis of science they don't understand, that's a significant problem. i don't have any solutions for it. >> host: eric posner is our guest. we're here no chicago. we have a gentleman at the mic who would like to ask a question. >> i'm from a northern suburb of illinois. maybe shy ask for makeup or at least a computer enhancement. i wish my voice was better, more like norman royce who was the voice of god. or steve reeves, who was hercules.

kevines pretty good, too. maybe if you count up instead of down because the programs you put on or 10. i hope what i say is worth the time and the cameras dwell on in -- >> host: you're fine, sir go to your question. >> i want to give people a chance to write some books down. my question will be asked in the beginning. can democracy work if people aren't all intellectually. it's people who are prone -- an intellectual is someone who is given to study, reflex and speculation. think of how many people who don't know the religion or nationality of our presidents, that people got here 10 though years ago, that abortion is wrong even if a failure of birth control is done soon, and the martyrdom of dr. kevorkian about letting people die with dignity. maybe we should live each day as

we would want people to live in a better future. and so the caller's voices were not very clear. i don think it's jbl's full. if you saw in sci-fi news, they're got 100. maybe the economy will be good enough so we can afford 64,000-dollar speakers. dr. christopher hill talk about with -- he had a co-awe their, too. he wrote a book called physics for poets, and steinway ling dorf, they have speakers that cost 188,000-dollar and it includes a cd and an imply fire. >> richard, can we go back to your original question about democracy and intel electric tombs. >> host: gary. the books are sex, murder, and the meaning of life. these are optimistic. less than human, about how we

dehumanize people. indians, blacks and jews, by david livingstone smith, and two authors who wrote a book about out of character, which means our character may not be set in stone. three very important boxes of 823 page. >> host: gary, thank you. we're going leave trip. i apologize. there was a question there about the effect of democracy. >> didn't want to say anything inappropriate. thank you so much. >> guest: the question about the relationship between democracy and intellectuals. this has been a problem that people recognized over a century ago. so as the united states became more of a mass democratic intellectuals became worried that ordinary people would have, in effect, too much influence. ordinary people who are not particularly educated, didn't understand what was going on, and the worry among the elites and intellectuals, they would have too much influence on

politicians and politicians would make bad decisions. i don't think that's right. i think -- there is a lot of people are not very educated or informed, but i think most people vote under the basis of how the economy is doing, whether they feel secure, and they're not so interested in particular policy instruments that the government chooses. what they want to see are results. and that gives the government the freedom to rely on experts to a certain extent, to choose whatever the appropriate policymakers are in order to achieve goals that people broadly agree with. >> host: eric posner has written books on social norms and a couple books on international law. he's an e-mail that combines them both. raymond from rhode island. if a middle eastern sheikh with an eight-year-old bride checks into a manhattan hotel, can u.s. or new york authorities arrest him for being in violation of new york or u.s. law?

so he's not marrying in the united states. right? he is already married. i think once he is in the united states, the united states would not recognize his marriage as valid. so suppose, for example, that -- what it the eight-year-old runs away. i don't think the u.s. authorities would return the eight-year-old to him on the ground that under the law of the country in which he comes from, he has control over his child, his child wife. earned, if the eight-year-old doesn't run away and doesn't come to the attention of u.s. authorities, nothing is going to happen, which is more likely. or more likely still the eight-year-old would have not been brought to the united states in the first place. >> host: a few minutes left. next call from right here in chicago. hi, chicago. >> guest: hello. professor posner, it's really an honor to speak with you. could you please comment

regarding the supreme court members citing constitutional law from other countries? david curry, who is a former member of the university of chicago law school, is cited frequently by the supreme court. his position is that the united states constitution was the first major product of constitutional democracy, a movement of the 17th, 18th 18th and 19th centuries, as such, 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: yeah. a similar question was asked before, and what i said was that i think it makes sense to -- for justices -- if they do this in an honest and a sincere way to look at what's doing on in other countries for the purpose of

interpreting the u.s. constitution. at least under certain circumstances. i think the general concern, which is a legitimate concern, is that if you give the justices this additional interpretive method that they might just use it as a screen for implementing their ideological preferences, and that's a real concern, which makes me a little nervous about this practice but i'm not really opposed to it. >> host: brian morris, e-mails in to you: professor possessor in, 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'm wondering how, if at all, you believe your work on social norms relates to hayak's view on the distinction between law and legislation. >> guest: it's nice to hear from a former student, and it's -- >> host: who liked yes. >> guest: yes. even more so. and it's a typically challenging

question. hayak is a famous thinker who is well known for -- as a critic of the regulatory state, and he believes the government, simplifying greatly, didn't have enough information to engage in the kind of regulation that liberals support. now, there is a connection between that view and my view of that social norms, and one of the points i made about social norms, which i made earlier, is that they govern people's behavior to an extent that is onunderestimated and the doesn't take it into account when it enacts regulation. you can have perverse outcomes. in that sense, hayak is right, but the government has to be

cautious when it passes laws and regulates because there's so much of social life it doesn't really understand. on the other hand i think hayak may have gone a little too far. there are certain problems that are relatively well-defined and certain ways of influencing behavior which seem to work. taxes, criminal punishment. in most circumstances. that the government is often justified in engaging in regulation. >> host: eric posner is our guest, and boston, you're on the air with him. hi. >> guest: hello. i'd like to ask a question about earlier when you were talking about israel's support for the par tied -- apartheid government, and you juxtaposed it to america supporting dictators in central america and that's because of the cold war. have you never read any of the scholarship about american

companies exploiting third world countries and poor countries for economic reason? you really think it matter of cold war? and why is america exploiting other countries for cheap labor. how can you say it's because of the cold war that companies exploit other people, mainly nonwhite people to make billions of profit while they're being paid 50 cents a day in these countries? >> host: thank you, boston. we got the point. >> guest: yes. well, i think you're taking my earlier answer out of context. i was trying to draw a comparison to -- from israel to the united states, and the u.s. had security reasons for propping up -- or at least not pressuring dictatorships in other countries. i don't -- i was making a pretty cautious point. i don't to whether the security

reasons were justified. they were applause -- plausible but there's an argument that the u.s. should have given them lest support. what you're saying is the u.s. was propping up dictatorships in order to support american companies that were exploiting people in these countries. exploitation occurs, but it's complicated because what you call exploitation could also just be called trade, and investment, and most countries, including democratic countries, which are poor, welcome trade and investment. why? because if american companies come and build factories, their jobs for people there, and if there's trade, then people in those countries can build things and in return get foreign currency they can use to buy things they need. it's true there's exploitation in the sense that those people are paid lower wages than

americans doing similar jobs. that's while the trade and investment occurs in the first place. if american companies or two pay them the same wages, the wouldn't invest in these countries. be no reason to. and so i think the people in those countries are being benefited through most forms of foreign investment and trade. there are cases where that doesn't happen, where the government is very corrupt and the government and the country in which investment is taking place is very corrupt. i think all in all, globalization, this type of globalization, where wallet 'er weltier countries benefit people in other countries quite a bit, and of course notably in china and -- really china is the best example, where 20-30 years ago, there were -- virtually the entire country was incredibly impoverished, and in the last 20 years, something like 200 --

300 million people have gone from living on a dollar a day to a respectable livelihood and that's mainly bus of trade and investment. >> if you were advising a google type company, multinational, when it comes to international law, u.s. law, chinese law, is this an area that is getting more and more fuzzy with all the multinational corporations? >> guest: it's become more difficult. and people -- you have companies that we identify -- an american company or german company, but they have shareholders all over the world and they ultimately control the company, and the company will set up oafses all over the world, and at some point it may be unclear what the nationality of that country is, and these companies can take advantage of laws in order to make profits. sometimes it's troublesome.

sometimes it's less troublesome, the companies are just doing business in a more efficient way. so, the lawyers for google, they face challenges. they have to deal with foreign law, international law to some extent, and it's a much more complex world than we lived in as recently as 20 or 30 years ago. >> eric posner is our guest, ohio, you're on the air with him. good afternoon. >> guest: hello. thanks for taking my call. yesterday on lip test and on book tv, we heard from laura caldwell, who wrote "a long way home," about a young man who left a gang instead of fight. he was not even there when a man was killed, but later he was picked up. he spent almost six months in the cook county holding area -- wasn't even convicted of anything. now, they say that only 5% of

the people picked up fall into this category, but that's out of the hundreds of thousands that have been arrested. i'm just wondering how this could happen in a democracy. >> guest: how could it indian a -- it happen in a democracy? i think ordinary people want to be protected by -- from crime but they don't want to pay high taxes, and so the elected representatives are squeezed between these two contradictory impulses, and the result is they may skimp on procedure protections or on training for police or court officials, with the result that we get this kind of outcome. >> host: this e-mail from tm in seattle. professor posner, can you comment on the philosophical basis for the roe v. wade decision. we now have 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: i think with the benefit of hindsight, it would have been a good thing to leave to state leg legislatures. it's had a bad effect on national politics. i believe in abortion rights, but maybe i'm not as passionate as other people are and these institutional questions are serious. it's a bad thing that appointments and nominations turn on the judge's view of abortion rights, or at least of the constitutionality of abortion right's, because the legal system is so much more complex and so much is going on that you wouldn't think that that single question should be driving what's going on. >> host: eric posner, this e-mail. in the spring of 2010, ny and

harvard law schools had a conference to school law firms being highly critical of law school's curriculum, for which rope the corps have reduced hiring. are these corporate law firms correct? and given the economic times what are the cost benefits of one entertaining the idea of law school? >> guest: law firms have always been -- have always complained about legal education. they think that we teach too much sort of theoretical stuff and we don't give enough practical experience to -- or don't teach enough practical skills to law students. the law schools know this and they have been trying hard over decades to introduce more christian -- clinical teaching and more practical teaching. it's very hard to teach that stuff. the only way to learn how to conduct deposition is to do it,

where you're with a senior law and you watch and you're allowed to ask questiones. that cannot be taught in law school. most of the law is based on practical experience, not book learning. that just the way things are. >> a few minutes left with our in-depth guest, eric posner. santa rosa, california. >> guest: my question is concerning international trademarks and internet domain names. i know you said you're not an expert in intellectual property, but organizations have a lot of control over who gets what domain names and do american citizens have recourse through our government to appeal a decision made by an organization like ican? >> guest: i don't know the answer to your question. ican is an interesting institution. at it not a formal legal

institution but it's a body that has been set up by states to assign domain names as the caller mentioned. i think it has internal appeal procedures, and i know there's been litigation about domain names. but i don't think american institutions or courts have the authority to reverse a decision by ican. >> host: just rev repsing back an earlier caller talking about the book, long way home, chris gray tweets in that the subject of the book was in cook county holding for six years, not six days as the caller mentioned. professor posner, this e-mail has come in for you as well. i wanted to get to. there we go. this is from -- not sure -- it's from sandy in colorado. how did we get so far away from the intent of the original constitution? this country is not a federal

democracy. it is a democratic republic, states have autonomous authority over the federal government. >> guest: that's the view that many people had 200 years ago. it's not clear that was really the founders' view, but let me answer the question this way. the founders had certain expectations about how the constitution would work, but they really had no idea. they were gambling -- there was veryings precedent -- basically no precedent, and they were hoping the government structures would work in certain ways. they were wrong. almost immediately a party system arose which they hadn't anticipated. the party system had a lot of influence over how government worked. almost immediately the executive became more powerful than many of them thought, and what happened is things changed. technology changes, people's views changes, and the risk is

the constitution, if it's interpreted somehow according to its original understanding, just won't catch up and it will be ignored, and so over the years, the courts have reinterpret it and it's meaning has definitely changed. now, some people like the way it's changed, some people don't like the way it's changed, but it seems pretty clear to me that the original understanding has not that much relevance to how our lives are organized today. >> host: so, eric posner, the semester has wrapped up for the university of chicago law school. what did you teach this past semester? >> guest: i taught banking law and a seminar on the federal reserve board. >> host: do you get to make up your own classes. >> guest: it's kind of a charged negotiation, and anything can go. >> host: what are you going to be teaching next semester? >> guest: i think i'll be teaching contract law. >> host: where do you fine time to write? do you write in your office, at

home? >> guest: both. i write in my office and at home. we don't teach over the summer so there's a lot of time to write then. >> host: what is your next book? >> guest: i have two books coming out. one is a become -- book on contract law for students, and another book is about international law and it's meant to be almost like a reference work, which brings together my ideas and other people's ideas how international law works and puts them in one useful place. >> host: if you were to recommend one of your books, which one would you recommend? >> guest: i think maybe the perils of global legalism. i think -- i consciously wrote that for people who were not experts. most of my other books are more for an academic audience. anybody who is reasonably informed can get something out of them. but the perils of global legalism is intended to a large

extend for lay audience as well as academic us audience, and addresses the role of international law in our life, the extent to which the bush administration should or should not have disregarded norms of international law to the extent they did. the influence of globalization on american government and policy. >> host: and we have shown you the cover of that book. let's look at some of the other books as we close here on in depth. in 2000, law and social norms. professor posner's first book. the perils of global legalism. the limit office international law, came out in 2005. no foundations of cost benefit analysis, 2006. terror in the balance. 2007. law and happiness. came out in -- this is a book that heed ited.

>> climbed change, justice, and the executive, up bound, 2010. professor