Judge Guido Calabresi : The Future of Law and Economics [55:33-60:38]

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. If enough, worth doing. 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 in particular and 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, would 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 sometime, but there are 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 what 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 then 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, but 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 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 assistant to Senator So-and-So, who has decided that torts would be a way to deal with gun violence, and wants you to write a statute.