Judge Guido Calabresi : The Future of Law and Economics [51:16-56:26]

It doesn't even matter how they come out there's an argument there's a dispute you settle it that does it and that's the end of it. Something to that but I don't think that's enough. There are some judges who are determined to make the law the way they want it as lawmakers and you can have people from the right or people from the left who do that and they are there and I won't name them over many of them are my good friends. I believe that a judge is part of many law making institutions. It is more of a settling a dispute but it is part of making law along with others. Some people said that my judicial theory is talking not surprising because I love to talk. I said that what we do is take small steps, talk to other institutions, talk to legislatures, talk to be executive, talk to other courts, certify to state courts, talk to many different things and out of this the law develops. We bring theory, we talk to the academy, learn the theory but that that is what we're doing and that obviously means also using theory but not letting dominators. Well that may your last comments may be answered to a question I was about to ask but I'll go ahead and ask it in any event because I want to just be clear about it. You end the book with Arthur Corbin's famous farewell to Yale Law School and Arthur Corbin who is one of the great legal scholars as well at Yale Law School. And near the end of his farewell address as you I'm sure recall he says I've always believed that the most important part in the evolution of our legal system is played by the judges. And he explains this in part by saying it's because judges make decisions. So would you agree that the judges play the most important part in the evolution of law and how I just want to explore that further? Talk about the evolution of law. Arthur Corbin was a contracts man. He was a common law guy. I'm a tortsknik. I'm a common law guy and if you are a common law person you think that judges role in the evolution of law is likely to be important. Arthur Corbin was also writing in the 1930s before the world of statutes. It's become much more complicated because now judges are not the Lemmeville Shaws who had no statutes to deal with and could redo everything maybe too aggressively but as part of a common law. Now we're constantly talking with the other thing with the other bodies with the other parties. I think that Corbin viewed the role of the judge as greater than I would today and yet the judge is very much in the middle. I find myself sometimes in a sentencing situation saying this sentence undervaled statutes and the sentencing guidelines is not unreasonable and therefore the district judge could do it but it is absurd because the guidelines and the law are ridiculous. What I'm doing there is saying my role is to play this and to do that but I want to talk to the legislature or to the sentencing to the guidelines commission and get them to change and that respect Corbin is still quite right. I'm back to a question from the audience. Have you noticed a shift in judicial policy in the last 30 years in tort law where the primary emphasis of the courts is on keeping insurance costs low? Well, I think there are times when the costs are too low and I don't care about whether it's insurance costs or whatever but if things are costly, if they cause accidents, we should know what those costs are and we should respond to those costs by trying to find safer ways. And often the only way we can know it is if we have to pay money for it because we don't like to think of ourselves as being injured and so we will often underestimate the cost of the injury and the person who is injured and killed off, they're no longer there but actually safety would be cheaper. And if we can convert that into money so that we really know what it costs, then we'll find all sorts of things to be safe, safe enough worth doing.