Judge Guido Calabresi : The Future of Law and Economics [56:26-61:30]

And there are times when because of administrative costs, costs are too high and that's waste and we ought to do things better. And there's an awful lot in tort law that is sheer waste, of course, but there are other times when the costs represent what we think of as the harm, the value of this injury and then we ought to find a way of making it part of the decision making. I want to give you a chance to respond to at least one thing from Judge Posner. So Judge Posner obviously has some different views on economic analysis of law and particularly I just want to quote him here, this is not me speaking but this is Judge Posner and if you know Judge Posner he doesn't hold his punches back. So he said in reference to one of your classic works, the cost of accidents, he said, well that's a failure. And I want to know whether you agree with that or not, I think he was suggesting that at least in this partially critical review that he thought that well the approach you had to torch there was never adopted. So therefore somehow that made the book a failure. I want to give you a chance to respond. I don't think it's at all a failure. The cost of accidents said that essentially if you do not take distributional things into account, probably non-fault systems would be more efficient than fault systems. I think that is certainly the case. On the other hand if you take distributional systems into account you may decide that something in between is the better way of doing it and that taking into account some negligence some time over many, many areas not of that is better. And if you look at how comparative negligence actually works today in virtually every state what you compare is not fault but you compare fault and causation. You compare an awful lot that is non-fault and fault plays into it a little bit, you compare responsibility. So I think a system of comparative negligence is much more what one might have expected in practice. Again the book is a book of theory and it suggests some things. You can look to how the real world reacts to it and you come back and you say hey you know this theory my own can be tweaked a bit and made a little better and then it explains that world. And I think it's much closer to what goes on than to what Dick suggested in his original writings which were brilliant. We're also asked a question from the audience is there an intellectual theory for solving the problem of gun related violence. I've got to be careful because I'm a judge and I can't take any position that is political and and I won't. On the other hand it is interesting that we have not used and actually by statute are prohibited from using something like tort law in that area. We just made it in my torts class this term the question one of the questions in the torts exam we said you are the the assistant to senator so and so who has decided that torts would be the way to deal with gun violence and wants you to write a statute. Write a statute doing that or criticize why that is wrong why that is not the way to do it and do that I got many wonderful answers as you can expect from first year students. But think about it think about the fact that something like torts would not prohibit anybody from owning guns. On the other hand if it made people reliable they might just find ways of making guns be used only by people who are safe.