Judge Guido Calabresi : The Future of Law and Economics [25:28-30:42]

But distributional notions were always there before, not necessarily between rich and poor. The 19th century was full of distributional notions. Holmes, who acted as Volvet was not there, was quite clear of the fact that doers should be richer because being doers was more moral. You know, there was this great Calvinist notion of the doers are the ones. And that was distribution. If you think of Rylens V. Fletcher, some of you may remember that case from, if you were tortsnicks from torts, there the distributional notion is that the landowners, the natural owners, the people who were the lords should do better than the mill owners for distributional reasons. Now you can disagree with different distributional notions, but you always have to know that that is part of the discussion too. The problem with distribution, and I wrote that in a little article later at the British Academy, is that people tend either to ignore it and act as if it isn't there, which I called sophistry. And many people in Chicago do, they act as if it makes no difference who is richer or poorer, or they simply announce what is distributionally correct, as if they were saying scholarly things about it when they are actually just giving their preferences. And I called that self-indulgence, and I said that I was guilty of it. And I learned that when I proposed a reform of accident law in the only state that I wanted to do that in, because it was the only state where it made sense for it to have its own accident law. And it takes no sense for Pennsylvania and Delaware to have different accident laws, because you are driving cross borders, and if you have very different law, it just makes no sense. So what was the state, Hawaii? Because not many people drive from Hawaii. Not successful anyway. And I proposed a system which was magnificent, a total reform, just wonderful. The governor was for it, the legislature was for it, it was wonderful, much more effective, efficient, and all sorts of things. And I thought distributionally clearly sound. And everybody was for it, except for trial lawyers, who were going to lose a lot of money under it. And their distribution was something I didn't think about, because that's clearly wrong. Who cares about them? They bought half time during the Super Bowl locally at that time, and they got defeated. And I realized that while my distributional notions there may have been correct, I was just stating that as if it was scholarly, well it was just my preferences. And that's self-indulgent. So can one say things about distribution in a scholarly way? Of course one can. Whether it's right or wrong, Bentham certainly had ideas on that. But if you're dealing with distribution, you have to at least be honest about what you're doing, and saying I'm saying this is a scholar, or this is scholarly, this is just my politics, but you have to know what you're doing. And I want to bring out another distinction that you talk about in your book, and you talk about it early on, but I think it's one that is really a framework throughout the book. And that's the distinction between economic analysis of law and law and economics. And if you wouldn't mind, tell us how you understand each of those different concepts, and how each has evolved, the path that each has evolved on. But many people have been saying that it's been economic analysis of law. In this book I begin actually with a little fable of John Stuart Mill being asked in 1850 around who the seminal minds of a century between 1750 and 1850. And Mill says, first, courage, the poet, it's kind of interesting that he would have said that, and then of course he says Bentham. And of Bentham he says he approached all ideas as a stranger, it's a nice lie, and if they did not meet his test, he dismissed test of utilitarianism. And there are ideas as vague generalities, elsewhere he says nonsense, nonsense stills. And then Mill says, but what he didn't realize was that in those vague generalities lay the whole unanalysed experience of human race.