Judge Guido Calabresi : The Future of Law and Economics [65:39-70:44]

I hadn't really thought of a court of appeals, because to be the Supreme Court of Connecticut in areas like torts and contracts, one could do so much more when had Connecticut's Constitution, but one could do so much more. I couldn't do it, because I was already in my dotage to take me three or four years to learn my job, and by the time I had learned it, I would be lame duck, retired. So I said no, and I went on a court of appeals, because President Clinton decided if he wanted me, well, I had never had no idea what such a court did, and I found it was wonderful, but as an idea, I was more interested in the other, because I thought you could do more. On the other hand, it is also the case that the Supreme Court is bound by law, and my story there is, Justice Reed was in racial matters a bigot. He was a subrenor, and he was a subrenor of that age and a bigot, and he was planning to vote to dissent in Brown v. Board of Education. Justice Black was a judge for whom I clerked for, went and talked to him, and said, you cannot do this, now remember, this is Brown v. Board of Education that has been attacked by so many people as being not a law-like decision. It was a law-like decision. I was told by a leading lawyer in Montgomery, Alabama, that every lawyer in Montgomery, Alabama knew how it was going to come out, because the law was clear, because for good marshal and the people with him had slowly developed the law in such a way that it was inevitable, and it was sufficiently inevitable, so that Justice Reed finally said, okay, the law compels me, now compels me in what way? In a way that only maybe judges, but not just judges, people who study law understand, we are compelled by the law. There are things that the most conservative or the most lefty person in the court cannot do at a particular moment, that doesn't mean that the law over time won't change. It changed between Plessy and Brown, dramatically so that by the time of Brown, Brown was compelled. It changes in all sorts of things, but at any given moment the people who say anything goes are as wrong as the people who say everything is determined, it's not that way. There is some room, and there are some things that you cannot do if you are a judge, and that's one of the great things about judges. Supreme Court has more room than we do, but they too, ultimately, I don't care who they are, you can ask them something, and you know that they'll say no, that can't be done. Let me ask one last question, and I'm going to ask this question, which comes from my 16-year-old son, I told him I was coming here today, and he asked what I was doing, and he wanted to be here. But one of the questions he asked me to ask you is, what's been the hardest decision you've had to make as a judge? What's the hardest case that came before it? Well, it's a story that takes a little bit of time to take it. We've got plenty of time. I was on a panel with Jose Cabránis and Fred Parker. It was a habeas case, and it was a case of a young man who had been convicted of murdering his parents. Now you get many habeas cases in which there is something wrong in what was done, and so on. Basically, you think, you know, the person was guilty. Here I looked at that, and I thought I think this guy may well have been innocent, and a whole series of things, how he was questioned, and for hours and end, and he finally confessed and took it back immediately, and said no, and all sorts of things were going on, which made me think that this was a real chance that this guy had been wrongly convicted. And I wanted to grant habeas, you know, that. And these other two, Juan Jose Cabránis, a very conservative judge, Fred Parker, who was