Judge Guido Calabresi : The Future of Law and Economics [50:31-55:33]

So you know, you can use economics in that, but you've got to be careful, it depends on how aggressive a judge you are, and I'm not that aggressive, you know. I think, I'll say this about judgey, I think there are three ways of looking what a judge does. There are some people, great judges, like Mike Boudin, who think basically the job of a judge is simply to settle disputes, 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, although many of them are my good friends, but they're not. I believe that a judge is part of many law-making institutions. It is more of unsettling and 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. And 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 can bring theory, we talk to be 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, I'll go ahead and ask it, and 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, folks here right now, was 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 I, would you agree that the judges play the most important part in the evolution of law? Well, I just want to, I just wanted to talk about the evolution of law. Arthur Corbin was a contract 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, you know, 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.