Pearls Beyond Price
Guido Calabresi is now in the sixth decade of his remarkable career as a scholar, Dean, and Judge. With luck there will be more to come, but in the meantime we have The Future of Law and Economics: Essays in Reform and Recollection (2016), his late-career reflections on the work of, and recommendations for, what he calls “lawyer economists.” Because my colleagues in this Symposium are focusing on the substance of Judge Calabresi’s explicit program, I will instead say a bit about the implicit message of the book.
The explicit program of the book is to urge lawyer economists to attend to, and when possible to model, what economists more generally find it difficult to deal with: merit goods, altruism, benevolence, tastes, and values. Much of the book consists of Calabresi’s explications of the nature of these phenomena, the reasons that ordinary markets do not, cannot, or should not be relied upon completely to allocate them, and the ways in which hybrids – what he calls “modified markets” and “modified command” (which is essentially modified regulation) — address and allocate them. Mainstream economists often have little to say about these devices, and Calabresi wants lawyer-economists, to whom he ascribes a greater willingness, and perhaps a greater ability, than ordinary economists, to break out of conventional patterns of economic analysis, and thereby to deal with, analyze, and contribute to the ways we can think about hard-to-quantify but important phenomena and make better policy about them.
In addition, however, I think that there is an implicit program in the book, though perhaps “implication” would be a better term, because I am not sure that it was even consciously in Calabresi’s mind when we was writing. But this implication is certainly part of what I came away with. The implication concerns what the rest of us, who are not directly his audience, should do, and it follows pretty automatically from what Calabresi hopes lawyer-economists will do. The rest of us also should attend to merit goods, altruism, benevolence, tastes, and values, even if do not have the skills to model them, quantify them, or demonstrate with precision how they figure in what we are analyzing. I don’t want to put words in Calabresi’s mouth, but the message I received, as someone who does not do modeling, is that — to give just a single example of what could be many — we should not talk about the internalization of costs through tort liability without recognizing that one of the reasons we impose liability is because the rest of us, even when we are not victims, lose something when others suffer. Perhaps at some point lawyer-economists will be able to model this phenomenon, but in the meantime the rest of us should not be thinking that a simple negligence calculus is all we would ever need in order to determine when to impose liability for accidental injury, or that any number of other legal rules are simple reflections of simple values.
Because, deep down, Calabresi is fundamentally a teacher, the book is in a sense is an extended lecture in print. His scholarship, for all of others’ identification of some of his most celebrated, earlier work with a preference for strict liability over negligence, is often essentially positive rather than normative. Both his scholarly and his personal energy are heavily devoted to explaining. And that is what someone who is always teaching does: explain. Sit down with him for a chat about torts, or insurance, or constitutional law, or baseball, or Yale, and his side of the conversation will often consist largely of explanation.
Thus, although the book is ostensibly and expressly about his hopes for a certain kind of future for law and economics, in a larger sense it is an explanation of how rich and complex both ordinary life and the life of the law are, and how conventional economic analysis of law so often misses this richness and complexity. In the past Calabresi has contrasted messy reality with the artificial and simplistic “wonderful worlds” conjured up by some other scholars. This book, in contrast, is effectively a tribute to the actual wonderful world in which has lived, a wonderful world that is full of pearls beyond price, kindness, and difficult or impossible-to-quantify treasures of many other kinds. All of these he has loved, and has been interpreting and savoring, for an entire career. Do not ignore these things, his book said to me, for you cannot understand law, or life, without understanding and deeply appreciating them.