Academic journal article The Yale Law Journal

Remarks: The Simple Virtues of 'The Cathedral.'(Property Rules, Liability Rules, and Inalienability: A Twenty-Five Year Retrospective)

Academic journal article The Yale Law Journal

Remarks: The Simple Virtues of 'The Cathedral.'(Property Rules, Liability Rules, and Inalienability: A Twenty-Five Year Retrospective)

Article excerpt

There is something odd about taking part in a discussion of one's own work. My mother-in-law was an artist and she hated to go to exhibitions of her paintings. She felt naked as people looked at her works and discussed them almost as if she weren't there. It is much the same when one listens to one's writings being analyzed. "Did I say that? Did I really say that? Of course I didn't say that!" Or conversely, "Of course I said that! Who could possibly think that I didn't? Obviously that idea was there. Anyone could tell it was there!" But who is to say whether it really was there in a meaningful sense?

As a teacher of products liability, I guess I'm committed to the notion that once one creates a product, an artifact, that artifact must speak for itself, it must be taken with all that its users find in it, or find to be missing from it. And one can't completely exonerate oneself from the damage done by a plausible use of the product by saying, "I didn't mean for it to be used that way." Still, one is tempted to suggest how one's artifact should and should not be used, and so here I am.

I'm very glad to see that Doug Melamed is also here; I wanted him to spring unexpected out of a cake -- unfortunately there is no cake. But he is here, and you have had a chance to listen to him. I especially wanted him here because over the years many people have asked me, "Who was Melamed?" as if he didn't exist, as if he weren't one of the country's leading lawyers. Most of you, like me, are teachers and scholars, and we sometimes think of the world as one in which only scholarly achievements matter. We are, of course, quite wrong.

There was a man named Nathan Young, who graduated from the Yale Law School in 1918. He founded the NAACP in Missouri, and later became the first African-American judge in Missouri. On the seventieth anniversary of his graduation, he came back to the law school and spoke at commencement. To place him among his classmates, I got a list of the people who had graduated with him in 1918. Among them was Karl Llewellyn. Naturally, I asked Young if he knew Llewellyn and he said, "Karl Llewellyn ... of course I knew Karl, we wrote a paper together -- bright fellow ... What ever became of him?" So if any of you don't know who Doug is, and what he has done, remember, it's a narrow world we live in.

I'd like to begin talking about The Cathedral with a bit of legal thought. Or rather, with some history of legal thought, if I may so dignify what I will say. First, a matter of timing: This article was written in the spring of 1971. It was written at about the same time that Dick Posner's review of The Costs of Accidents came out. In that review, Posner stated that he was not a torts lawyer, but then neither was Calabresi, because anyone who was doing something so starling as to use economic analysis of law to discuss accidents was not really talking about torts.(1) In 1971, Mitch Polinsky was just starting as a graduate student at MIT. Nick Tideman, who, along with Saul Levmore, has done the most interesting work on self-assessment, had barely finished his Ph.D. at Harvard. Jules Coleman was not that long past puberty, and Jody Kraus was probably still in knee-pants. At that time, most people believed that economic analysis of law was crazy stuff.

Perhaps for that reason this article was almost rejected. It had been commissioned by the Harvard Law Review because I was a visiting professor at Harvard that year. When the editors looked at it, though, they were so startled by my way of approaching things that they nearly turned it down. (They ultimately published it with fewer changes than were made by editors in any other article I have written, but only after I was able to explain to them face-to-face what the piece was about.)

This context explains the simplicity, what Saul has kindly called "the elegance," of the model.(2) The lack of any nuances, of any sub-rules and sub-sub-rules stems from the fact that, as simple as the model was, it was nonetheless almost too complex for its time. …

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