books in print Law and Guido Calabresi Q and A with Guido Calabresi Guido Calabresi GUIDO CALABRESI ’58 is Sterling Professor The Future of Law & Economics: Emeritus at Yale Law School and a senior Essays in Reform and Recollection judge on the United States Court of Appeals Yale University Press, 2016 for the Second Circuit. A preeminent legal scholar, Calabresi served as dean of the Law School from 1985 to 1994 prior to his , Sterling Professor Emeritus Guido In his latest book appointment on the Second Circuit. He began Calabresi ’58 discusses the nuances found within the law and teaching at the Law School in 1959 at the economics movement, a theoretical mode of analysis that Calabresi age of 26, and is widely acknowledged as himself pioneered in the mid-twentieth century. a leading figure in the field known as Described by the University of Chicago’s Sam Peltzman as “a collection of law and economics. original essays by one of the towering figures in the development of the economic Yale Law Report In your view, what is the analysis of law,” The Future of Law & Economics posits that there are two separate areas lawyer’s unique role in changing, or even within the discipline, most clearly identified with the English philosophers Jeremy bettering, economics and economic theory? Bentham and John Stuart Mill. The Benthamite strain, according to Calabresi, Guido Calabresi lawyers are like institu- understands that the law should be understood merely in the light of economic tionalists. They’re people of the world. theory, and suggests ways in which economics might improve legal effectiveness. When we look at the law, we see how the world has treated some situations. That Such a theoretical mindset, he says in the book’s first essay, “casts doubt upon, and enables us to see whether a theory—be it often seeks reform of legal reality.” The Millian strain, however, places economics economics, philosophy, or another theory— and the law on more egalitarian footing. Coming from a more realistic really fits the world. And that gives and less theoretical understanding, this perspective is one of bilaterality, us insights that are particularly allowing for economic theory to be just as correctable as the law. It is this useful to whatever theoretical field approach—from the legacy of Mill and in opposition to Bentham—for we’re addressing. The group of economists known which Calabresi most clearly advocates. as institutionalists argued that The series of essays that follow arise from this distinction, and that’s what should be done in eco- Calabresi discusses related topics such as altruism, merit goods, and the nomics. ronald Coase was one of liability rule. Though ultimately a work of historical and contemporary them, as was Walton hamilton, who legal-economic analysis, The Future of Law & Economics is decidedly forward- taught at yale law School. So why is looking. In the concluding words of the book, Calabresi thoughtfully notes: it not their job to look at economic theory from the standpoint of the world and say “Economists, working with legal scholars, can, by making economic theory richer what is wrong with it? Traditionally, institu- and more nuanced, make that theory more capable of responding to both these tional economists came from the left, and needs. They can do so without abandoning those limits that economics has tradi- they were treated with suspicion by eco- tionally, and understandably, placed on itself in order to retain its rigor. Law and nomic theorists for that reason. There was Economics scholarship has done this to wonderful effect in the past. But there is always the thought that they might say much still to be done, and it is this that makes the future of Law and Economics that the world doesn’t fit for ideological reasons rather than for empirical reasons. so bright and exciting to me, an early tiller in the field.” 16 17 yale law report summer 2016 lawyers are institutionalists but come kidney to somebody else, and the person reform. The only problem from my Millian from every possible point of view, and so who wants to buy it—but how third par- point of view is that sometimes the reform one can’t attack lawyers that way, which ties react, whether they are offended. it seems to push for is simplistic unless one makes us much, much more useful. Economic theory traditionally does not goes back and asks whether the theory is That puts lawyers in a position to ques- take into account what, in their own terms, nuanced enough, or whether the world tion any theory. I happen to be interested they call third-party utilities. But one might represent, as Mills said, the whole in questioning economic theory because cannot discuss any number of things— unanalyzed experience of a human race. In that’s what I’ve worked on, but also why we prohibit the sale of blood or why Europe the notion was that law is because it’s been such a dominant part of we do things about healthcare or educa- unchanging, that law is what it should be, legal scholarship in the last fifty or sixty tion—without realizing that the third par- and that any scholarship that tried to years. The first thing that the lawyer does ty’s values are part of the game, too. change it was not scholarship—that was when looking at the world and seeing that what Bentham and all similar theorists the theory doesn’t fit is to make demands ylr your new book sketches the distinc- (and therefore economic analysis of law) of the theory: Why doesn’t it fit? Is it the tion between the Benthamite (“economic rebelled against and said, let’s question. If world that should be changed or is it analysis of law”) and the Millian (“law and one takes the world as it is, law as it is, as something that’s wrong with the theory? economics”) traditions of economic-legal unchanging, then one either has a tyranny By making demands, it asks the theorists analysis. given your long scholarly history of history, where history rules regardless, to rethink their theory. In my recent book, I say: Isn’t it interest- ing that economists seem to treat most goods either as a means of getting from We like caviar because we like it, but it also feeds us. here to here? Is it a useful way of delivering And almost everything is, to some extent, both. health care? Is it an efficient way of getting from point A to point B? or they look at And this being “both” is something that goods as ends. We want this. I like this. That’s something I would like to have. economists haven’t really thought about. But when one looks instead at the world of law, one realizes that most goods are both ends and means. We like caviar of advocating for Mill’s approach, what do or one has a tyranny of revolution because because we like it, but it also feeds us. And you think Bentham’s analysis can offer to at a certain point people have had enough almost everything is, to some extent, both. the continuing conversation about law and and they explode. “Écrasez l’Infâme” was And this being “both” is something that economics? the French phrase: Destroy the infamous, economists haven’t really thought about. Calabresi The Benthamite tradition is very the indecent. And create a wholly new, rev- It helps us to explain altruism. It helps us useful, first, for questioning, for demand- olutionary structure that rules thereafter. to explain any number of things. It asks ing change. It says, “The past isn’t neces- When a theoretical Benthamite economists to think about the theoretical sarily right. It has to prove itself.” And the approach looks at the world, and the world implications of this more broadly. And second thing that the Benthamite tradi- doesn’t fit, the second question it asks us that’s why this book raises some deeper tion does is to ask, “Are people of the world to ask is: Am I actually seeing the world? or theoretical questions for economics. For looking at the world as it is, or are they is something about where I am looking example, once one talks about ends and missing something?” from causing me to miss what is going on? means both, one looks at people like the Bentham was famous for pushing for The theory says something should be hap- great free market scholars F. A. hayek and reform. The theory demands change. The pening. It doesn’t seem to be happening. Milton Friedman and one realizes that they theory looks at what was there before and But is it really not happening or am I only not only think that the market is an effi- says, hey, this doesn’t seem to work. And looking through blinders? For instance, am cient way of delivering goods and services, that’s very powerful. one has a theory that I looking only at appellate cases, and ignor- but that they like it. of course they like it, is believed, whether it is Bentham or it is ing all that is decided administratively? and that’s one of the reasons they push for Chicago or is Marxist—but it looks at the it. Conversely, Trotsky didn’t just think com- world and it says there is something ylr What are the other scholarly disci- mand was an efficient way of delivering wrong. Being able to question what has plines that you could imagine as being goods and services, he liked it! been before is fundamental.