Common law: a better foundation for Liberalism

Summary

LSE: Public Lectures and Events

Episode: Common Law: A Better Foundation for Liberalism

Date: December 9, 2025
Speaker: Professor John Hasnas (Georgetown University)
Chair/Moderator: Brian (LSE Hayek Program)

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Episode Overview

This episode features Professor John Hasnas, presenting key arguments from his book Common Law Liberalism. The main theme is whether common law offers a more reliable and liberal foundation for public policy, as compared to government legislation. Hasnas distinguishes between two central theses:

• Moderate Thesis: Good public policy demands comparative assessment between common law (esp. civil liability) and legislation as regulatory mechanisms.
• Radical Thesis: A flourishing society can exist without legislation—arguably even without monopolistic government services.

The discussion traverses legal history, economic regulation, environmental protection, free speech, criminal law, complexities of litigation, and modern dilemmas like AI and labor displacement.

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Key Discussion Points & Insights

Introduction: Framing the Problem ([02:28]–[04:09])

• False Dilemma in Political Philosophy:
  Hasnas critiques the "standard" idea that society must choose between no regulation and government regulation, arguing that the evolution of common law shows a vital third path.
• Invisible Gorilla Experiment:
  Uses the famous psychology experiment to illustrate "inattentional blindness"—analysts miss the regulatory role of civil liability because they're fixated on legislative solutions ([05:03]–[07:22]).

“Civil liability is the invisible gorilla of public policy analysis. It's right there, but we don't see it.”
— Professor Hasnas ([23:08])

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The Nature of Law: Common Law vs. Legislation ([11:28]–[18:55])

• Common Law as Emergent Social Order:
  Arises from customs and case decisions, shaping rules for property, contracts, and torts—“case-generated law” evolved before formal governments.
• Legislation:
  Rules imposed by political representatives, susceptible to special interest capture and not necessarily aligned with public good.

Notable Example:

• George Mitchell Story:
  Despite high integrity, used political power to protect local industry at the expense of national environmental reform ([15:49]).

"When the politician with the highest level for integrity tells you that ... you can thwart the public good in order to protect your own parochial special interest, you should believe him."
— Hasnas ([18:29])

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The Market and the Myth of the "Unregulated" Realm ([18:55]–[21:58])

• No Truly 'Unregulated' Market:
  All social and economic spheres are constrained by ethics, custom, and especially civil liability, not just government regulation.
• Correct View of Market:
  "The market is the realm of voluntary transactions regulated by custom, ethics, and civil liability.”
• Intersecting Regulation:
  Civil liability (common law) is endogenous to markets and should be evaluated in parallel with legislation.

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Revising the Market Failure Argument ([23:39]–[25:00])

• From Government as Necessity, to Comparative Analysis:
  Instead of assuming legislation is always needed to correct negative externalities, one must first assess if custom, ethics, or civil liability are adequate.
• Conclusion of Moderate Thesis:
  “Good public policy analysis requires a comparative assessment of the effectiveness of common law and legislation as regulatory mechanisms.” ([26:35])

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Effectiveness of Civil Liability ([27:00]–[36:41])

• Tort Reform as Evidence:
  Persistent corporate lobbying to limit tort liability shows it's highly effective—even “too effective” for some interests ([27:27]).

• McDonald's Coffee Case ([28:20]–[32:12]):

  • Lawsuits over hot coffee changed industry practices faster and more broadly than would have been possible by governmental regulation.

“That's a pretty good example of effective safety regulation. ... There's an army of regulators out there called plaintiffs attorneys. ... There's no way to capture plaintiffs attorneys.”
— Hasnas ([34:18])

• Civil Liability vs. Regulatory Agencies:
  Plaintiffs' lawyers have no public choice constraints; they self-finance and target wrongful conduct. Regulatory capture is endemic in legislation.

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Civil Liability Across Policy Areas

Environmental Regulation ([36:41]–[45:32]):

• False Dilemma:
  Problematic framing of environmental issues as a choice between degradation or regulation, neglecting privatization and incentive alignment.
• Example:
  • Seahorse conservation (Philippines)—Aligning incentives/privatization saved species better than government-imposed restrictions.
  • BP Oil Spill—Civil liability initially prevented deep-water drilling; liability caps legislated by government encouraged risky behavior.

Freedom of Speech ([46:45]–[50:52]):

• Common Law Already Regulates Speech:
  Defamation, misrepresentation, intentional infliction of harm—all actionable under tort. The case for additional government regulation is weak and prone to abuse for political suppression.

"There is no such thing as free speech, by the way. There's only free and responsible speech.”
— Hasnas ([48:01])

Criminal Law ([50:52]–[52:12]):

• Torts as Crime Deterrence:
  Assault, battery, etc., are both crimes and torts—civil liability was often the primary social order mechanism before modern criminal law. The role of state punishment should be reconsidered with civil remedies as a viable alternative.

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Radical Thesis: Living Without Legislation ([52:12]–[56:40])

• Precedents for Stateless Order:
  Anglo-American law emerged from diverse, competitive courts and customs. Police and centralized governments are recent; order and law predate them.
• Evidence:
  • England flourished before the Bow Street Runners (1749).
  • US society predates public police forces.

“If you can have a society that functioned in the absence of government police, then it’s possible for society to function in the absence of government police.”
— Hasnas ([56:40])

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Notable Audience Q&A

On Integrating Common Law in Modern Legal Systems ([57:51], [58:20])

• Question: How could common law be further integrated today?
  Answer: It doesn't need more integration—but society needs to recognize and properly value it alongside legislation ([59:05]).

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Insurance, Tort Culture, and Cost Concerns ([59:51], [60:36], [65:34])

• High Insurance Premiums:
  Not necessarily a problem, but the market's way to internalize risk and drive safer practices.
• Access to Justice:
  Civil liability is “poor person’s law”—contingency fees mean you don't need resources to bring a claim.

“If you have no resources, you get into court. … The only chance individuals have against the rich people is the civil liability system.”
— Hasnas ([66:09])

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“Isn’t Tort Law Reactive, While Regulation is Preventive?” ([67:09]–[69:16])

• Acknowledgment:
  Sometimes, only prospective legislation can prevent new widespread harms—comparative analysis is essential.
• Common Law Can Be Prospective:
  Court injunctions can preempt harm if a high probability of danger is proven.

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Bias and Integrity in the Common Law ([69:29]–[71:58])

• Imperfect but Less Prone to Systemic Corruption:
  Juries (ordinary people) serve as buffers against biased elites; corruption in law is less dangerous case-by-case than when “baked into” legislation by a captured or prejudiced majority.

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Dispute Resolution Without Government Monopoly ([72:06]–[75:50])

• Real-World Alternatives:
  Mandatory mediation, private arbitration, customary/religious community resolution—all effective at times.
• International Business:
  Firms voluntarily use reputable courts/arbitrators (e.g., London Commercial Court) without government monopoly.

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Juries and Legal Fairness ([76:00]–[78:23])

• Value of Jury System:
  Removing juries shifts power to professional elites, undermining responsiveness to ordinary people's sense of fairness.

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Workers’ Rights, Minimum Wage, and Common Law ([78:35]–[80:27])

• Limits of Common Law:
  Common law won’t provide minimum wage; redress for worker exploitation is limited to clear harm like coercion or injury, not low pay:

“If you pay them way too low for what they're worth, there's not going to be a lawsuit. Common law is not going to do that for you.”
— Hasnas ([80:27])

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Complex Externalities: Climate Change ([80:35]–[82:15])

• Challenge:
  Complex, diffuse harms like climate change are hard to address via tort/civil liability; regulation may be necessary after comparative analysis.
• Reference:
  Research by Jonathan Adler on international liability mechanisms.

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Why Have Government At All? ([82:23]–[84:22])

• Philosophical/Evolutionary Perspective:
  Government often arises from power dynamics, not social necessity—if emergent order suffices, state institutions may merely concentrate oppressive potentials.

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Future of Work & Technological Displacement ([84:38]–[87:05])

• Limits of Common Law:
  Won’t prevent technological unemployment; only legal harms can be redressed, not job loss per se; legislative intervention for labor protection is a political choice, not a common law function.

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Marriage, Divorce, Children’s Welfare ([87:18]–[89:42])

• Historic Role of Custom:
  Many marital/familial issues historically governed by community custom and religious courts, especially among the poor; statutory law dominates today but studying customary solutions is invaluable.

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Memorable Quotes

• “The main point tonight is just this: ... Don't jump to the conclusion that something is wrong in the world and you have to have the government fix it. ... If that's the way we're approaching public policy issues, then we're doing the right thing.” ([25:00])
• “You can capture legislators, you can buy off regulators. ... There’s no way to capture plaintiffs attorneys.” ([34:18])
• “If you have a phone, you have a lawyer. That means that you don't need any resources. It's poor person's law.” ([66:30])
• “If you can have a society that functioned in the absence of government police, then it’s possible for society to function in the absence of government police.” ([56:40])

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Timestamps for Important Segments

• Episode Introduction and Overview: [00:02]–[04:09]
• Invisible Gorilla and Inattentional Blindness: [05:03]–[07:22]
• Nature of Law: Common Law & Legislation: [11:28]–[18:55]
• Market, Custom, and Civil Liability: [18:55]–[21:58]
• Market Failure Argument Critique: [21:58]–[25:00]
• Effectiveness of Civil Liability & Tort Stories: [27:00]–[36:41]
• Environmental, Free Speech, Criminal Law Applications: [36:41]–[52:12]
• Radical Thesis—Living Without Legislation/Government: [52:12]–[56:40]
• Q&A Session / Practical Objections: [57:24]–[89:42]

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Conclusion

Prof. Hasnas urges policymakers and analysts to challenge the reigning dogma that government legislation is the default (or only) regulatory solution. Instead, comparative analysis must be the starting point, with due attention paid to the robust, decentralized ways in which common law and social custom already regulate behavior. While acknowledging that legislation may sometimes be necessary, his argument champions the liberal virtues of emergent order and civil liability, highlighting their effectiveness, adaptability, and—at times—their superiority to governmental alternatives.

The episode ends with a lively Q&A covering real-world objections, evidential challenges, and the nuances of law in rapidly changing societies.

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Transcript

[A]

Welcome to the LSE Events Podcast by the London School of Economics and Political Science. Get ready to hear from some of the most influential international figures in the social sciences.

[B]

All right.

[C]

Good evening, ladies and gentlemen. My name is Brian here. I'm the chairperson and the moderator of tonight's event. Thank you for joining us. So this event tonight is part of the official public lectures program here the London School of Economics. It is also hosted and organised by the Hayec program here at lse. You may Google LSE Hayec Program for more information about future events or approach me after the event if you'd like more information. Our speaker for tonight is Professor John Hasnes, who has traveled all the way from the United States. The content of his talk tonight is based on his recent book Common Law Liberalism, published by Oxford University Press. So, John Hessnes is a professor of Law at Georgetown University Law center professor of business at Georgetown's McDonald School of Business, the Executive Director of the Georgetown Institute for the Study of Markets and Ethics. His scholarship concerns ethics and white collar crime, jurisprudence and legal history. He has published various articles and books including Common Law Liberalism, the subject of tonight's talk, and recently Questioning the Assumptions of Political Discourse by Routleduch. Do note that this event is being live streamed. There is an online audience watching this event tonight and will be photographed. So Professor Hastens will speak for approximately 50 minutes, followed by Q and A session that will last till 8pm sharp. I will be chairing and moderating the Q and A session which will respond to both questions from the online audience as well as those in person with us today. So do note that the book will be on sale just outside the room as you walked in, and our speaker will be around for signing and further interactions if you have further questions for him. So at this point, let's put our hands to welcome Professor John Hasnes.

[B]

Thank you very much. I'm honored to be invited to give this talk. I'm very glad to be here and.

I may speak for 50 minutes, but if I can cut it down, I will because I would enjoy much more question and answers with all of you. All right.

I am here to talk about my book, Common Law Liberalism. And the book has two main theses. I'll describe them and then in the talk I'll try to show what the arguments are for each thesis. So the first thesis is what I call a moderate thesis, and that is that good public policy analysis requires a comparative assessment of the effectiveness of common law and legislation as regulatory mechanisms. That's the thesis I want to Argue for.

The first 2/3 of the book are an argument for that thesis. And the reason why I think that's important is because I believe that conventional political philosophy is based on a false dilemma. That human action is either unregulated or else it has to be regulated by the government. I believe there's another option that has to be considered. So I think that that's a fairly reasonable thesis, and I will make an argument for it. The last part of the book has a second thesis. I called that the radical thesis. And that is that a peaceful and prosperous society can exist without legislation and ultimately without any essential services being supplied on a monopolistic basis by a government. So that's an argument that a good society does not require the existence of a state. I have spoken about this book previously, and when I do, I find almost all of the questions are about the radical thesis. But I think the moderate thesis is the important one. So I'm going to spend most of my talk today stressing that.

I'm going to.

When I was preparing this, I was reading a book. And in the book there was a wonderful example of what I think is the false dilemma. So I was reading the Identity Trap. And in the early parts of that book, the author writes, humans need government. Without some central authority, we would be unable to keep the peace between rival bands of warriors who. Or provide basic public goods. Even the most ingenious human would fail to thrive if she had to live in fear of being murdered by her neighbors or lack access to schools, hospitals and basic medical care. I mean, that's the argument. There's either no regulation or there's regulation by government. I want to argue that that is a false dilemma.

In a way, I will apologize because I'm not going to give a sophisticated, complex, abstract, philosophical argument for this thesis. In fact, the reason why I'm apologizing is my argument is going to amount to almost nothing more than me pointing and saying, look, that's going to be it. And because that's the kind of argument I'm giving you, I want to begin with reference to a fairly famous psychological experiment. So I will describe this. It may be familiar to many of you, but there's something called the invisible gorilla experiment. I see some of you nodding your heads. The experiment was two teams of three people, three wearing black shirts and three wearing white shirts, were told to pass basketballs back and forth while they moved around and interacted with each other. And then the subjects were told to count the number of passes by the people in the white shirts or the number of passes by the people in the black shirts. And that was their task. While this is going on, a woman in a gorilla suit comes walking into.

The activity, stands in the middle of the frame for a second, goes like this, and then walks out. At the end, they ask the participants about the gorilla. And 50% didn't see a gorilla. In fact, the people who didn't see a gorilla didn't believe there was one until they were shown the video. And that's demonstrating the psychological phenomenon of inattentional blindness. This is pictures of the activity. You can see them moving around. The gorilla walks in, walks out. People don't see the gorilla. So that's known as the invisible gorilla experiment. And it demonstrates the fact that when people are focused very strictly on one thing, they can be blind to the other things that are going on around them. And my argument is going to be, in a sense, that focusing on a particular model of public policy analysis makes us blind to the other alternative, which is common law.

I.

Let me begin with what I think is a fairly standard description of the argument for government regulation. At least this is the way I get it when I'm at workshops with my colleagues. And it goes like this. Market interactions are good things because when people trade with each other, each party gets something that he or she values more than what he or she gives up. And afterwards, everybody's better off. And so the wealth of society has been increased. But sometimes the private transactions have spillover effects. They affect third parties that are not part of the transaction. These are the social costs of private transactions. And those social costs sometimes can be harmful to the third parties. I'm not an economist, but I can use the language. This is. There are negative externalities to private transactions. And because sometimes the spillover effects can be so significant that actually the wealth of society is decreased by the transaction because the harm is greater than the good that's achieved. And what's required in order to make sure that the spillover effects don't become so significant is we have to have government regulate the transaction to make sure that the transaction is actually serving the social good.

I hope I've done a good job of describing that. It probably is fairly familiar to most of you. So that's the argument I want to examine. That's a particular type of a.

Market failure argument. And the explanation is.

People want to. The example that's often given is in the Industrial Revolution, people wanted linen that they could buy at a reasonable price. Manufacturers wanted the money that would come from the transaction. So the factory made the linen, they sold it to people. There was an exchange that was good for everybody, except the factories burned coal and the coal went up the smokestack and the soot came down on neighboring properties. And that was a cost to the neighboring properties. That wasn't considered by the transactors. That was a social cost. So you needed regulation to prevent that kind of pollution. The same argument will apply to things like unsafe products. The seller and the buyer get what they want, but the.

There'S a sale of a car, somebody buys it, everybody's happy except a pedestrian who's exposed to danger. It's a third party. So unsafe products. There's an argument like this for cultural degradation. And the problem is that the social costs are not internalized.

Law.

Is a remedy for this market failure. If that argument makes sense to you, I'm going to suggest that it is based on a certain conception of the relationship between law and the market.

So I'm going to call this the academic conception only because where I encounter it is when I'm in academic.

Settings or workshops with my colleagues. And this conception of the law in the market has the market identified.

As the realm of unregulated voluntary transactions. That's just what we do in the absence of regulation. Law is the regulation of voluntary transactions for the public good that will internalize the negative externalities. This is the depiction of the relationship that I think is standard given the market failure argument I just described. And I'm going to argue now that this is a misrepresentation of both the law and the market. So let me start with the law.

Okay. In our system, in the Anglo American legal system, there's three types of law. One is archaic. Law originally arose through customary law. Interaction among human beings developed a set of rules which became customs, and they became a practice. The customary law in England eventually was applied in the royal courts and became the common law as we know it now. So the common law is one form of law in our system. The other form of law is legislation. Legislation is the law that comes from the political representatives of the jurisdiction. It could be from Parliament. It could be from state legislatures in the United States. It could be from Congress. That's the law that's intentionally made by political representatives. Both of those are part of the law. All right, let me start with a brief description of the common law. The common law, as it evolved over several centuries, is the basis for almost all of the law that undergirds our current commercial society. So property law came from common law torts which is personal injury. Law is common law. Contracts is common law. Commercial law was developed through common law. A large part of criminal law arose through common law processes. The law that lets us live together peacefully and cooperatively was all common law. It was never legislated.

Common law is sometimes represented today as judge made law, but that's misleading. Judges are involved in deciding cases which make small changes in the law. But common law historically was not made by judges. For most of history, common law consisted of rules that were abstracted from a series of cases thought to represent just resolutions of past decisions. Blackstone, the famous commentator on the laws of England in 1776, defined the common law as Common law consists of general customs which are the universal rule of the whole kingdom and form the common law in its stricter and more usual signification. So the common law is case generated law, law that arises from the settlement of actual disputes. Common law is law that evolves over time from past experience. I'm going to quote Adam Ferguson now.

Common law is the result of human action, but it's not the execution of any human design. So that's common law. That's part of our law.

The other part of our law is legislation.

Legislation consists of general rules created by the political representatives that apply to all citizens of a jurisdiction.

At least when I was growing up, the democratic theory that was behind all of this was the legislators represent the will of the public and they enact measures designed to achieve the public good. So that's the way I learned about the value of legislation. Originally, as I went through my academic education, I encountered first economics and then public choice economics. And I won't try to rehearse public choice economics to you, but the idea is that there are forces at work in the political mechanism that will tend to skew what comes out of legislation in ways that are not directly serving the public good. And it can serve various special interests. I'm not equipped to give a good synopsis of public choice economics. So instead I'm just going to tell you a story. It's a story that illustrates a reason to doubt that legislation necessarily is designed to serve the public good. I'm going to go back to the 1990s in the United States.

There was a politician, George Mitchell. He was the Senate Majority Leader in the United States Senate until 1992. Thing that's distinctive about George Mitchell is he was highly respected for his integrity. That's important for a politician. This is a politician who had basically universal respect. Everybody thought he was a man of integrity. He ended up retiring in 1992, he was so well respected. I think after his retirement, he went to Northern Ireland and was one of the people helped trying to negotiate a settlement to the troubles over there. So he's a person of high integrity. He's retiring in 1992, and he's doing an exit interview with a reporter. And at one point, the reporter asks him what makes the job of.

Senate Majority Leader worthwhile. You have to deal with all of these horrible personalities, and you have to try and get people who agree, who don't want to agree. And it's one of the most troublesome jobs you can ever have. You're trying to herd cats, all the things that are difficult about it, what makes it worthwhile. And his response? He responds with a start. He says that at one point in time, the Clinton administration was considering issuing an executive order that would require all of the federal government agencies, all federal government offices, to use recycled paper. Apparently, that would be environmentally good. George Mitchell is the senator from Maine. The state of Maine is the place where they manufacture paper. That's where paper mills are. And so he says, because of my position of authority, I was able to stop that executive order from being issued. And he says, and then later on, I was giving a speech at home in Maine, and a man came rushing up to me, and people thought he was going to attack me, but that wasn't the case. He had tears streaming down his face, and he came up and he just said, I want to thank you for saving my job. Because of you, the mill didn't shut down, and I had continued work. And he says to the reporter, that's what makes the job worth it. And so when the politician with the highest level for integrity tells you that the value of a position of political power is that you can thwart the public good in order to protect your own parochial special interest, you should believe him.

There's plenty of public choice economics that makes the same point. But you probably have enough experience to realize that political considerations will skew the result of legislation away from what might be the best representation of the public good. So law is common law plus legislation. That's first. Next question is, what's the market?

This representation has the market as the unregulated, the realm of unregulated voluntary transactions. But that doesn't exist. There's no realm like that. If you live in society, you're subject to all kinds of regulation. The most powerful regulatory force in society are your ethical beliefs, your religious beliefs that curtails the way you interact with other people. To a great extent. The other thing that restricts your behavior, that regulate your behavior, is customary practices. In order to interact with other people, you often have to follow the customs that govern whatever the activity is. My father was a small businessman. His companies, they didn't afford lawyers. They just had to work in a customary way in order to do business with someone else. So that's a regulatory force. And at least in British Commonwealth countries, another regulatory force is civil liability. If you do something that harms others, you can be sued and you have to pay compensation. So there are regulatory forces, ethics, custom, civil liability.

That exists whether the government acts or not. So what is the market? What's a free market? A free market can only refer to the way human beings interact when they're not regulated by the political entities. A free market is a market free from political regulation. But that would mean that the market is the realm of.

Voluntary transactions regulated by ethics, custom, and common law. And the free market is. And that's the free market. If this is the understanding of the law and the market, then I'm going to say the correct depiction of the relationship between the law and markets is, as.

The market correctly understood, is voluntary transactions regulated by custom, ethics and civil liability. That's what the market is. The law is legislation. And common law legislation is the regulation of voluntary transactions to serve the politically dominant interest. The politically dominant interest could be the public interest. It could be something else. But legislation serves whoever is in control of the political mechanism that enacts it. And common law, civil liability, is part of it as well. If you understand the world in this way, then you'll see that the two areas intersect. The green area is the place where the market and the law overlap. Common law, which is part of the law, is also part of the market. Common law is the market's internal regulatory mechanism. If you're doing economics, the common law is endogenous to the market. It's a regulatory.

Mechanism that's built into markets as they exist. So if this is the case.

If this is the case, that the argument I gave or I described as the market failure argument really doesn't make sense. And I'm going to argue that the reason for that is inattentional blindness.

People who do public policy analysis are focused on one model of analysis.

Market failure argument, government regulation. That's the way they see the world. And they're so focused on it that they can't see something that's right in front of their eyes. It's not like civil liability is a hidden mystery.

We know that there's common law liability. The market failure argument that I just described seems plausible because of inattentional blindness. Basically, what I'm going to argue is that.

Civil liability is the invisible gorilla of public policy analysis. It's right there, but we don't see it.

All right, if that's the case, if this is a better. If this is a better depiction of the relationship between law and the market.

Then that suggests that the market failure argument I just described is unsound, but it can be fixed. You can make the market failure argument still make sense.

Given that civil liability is the market's internal regulatory mechanism. The argument you can make is if there are social costs, if there are negative spillover effects that aren't.

Caught by ethics, custom, and civil liability that still exists, then you have an argument for government regulation. The argument can still work. You just have to have a correct depiction of what the market is. And you also have to realize that even if there are those spillover effects, you only want to correct it through legislation. If there's a good reason to think legislation will correct the negative externality and not lead off in some other direction because.

The legislators are captured by special interests, that's the kind of analysis that you have to go through. So.

I'll get to that one. At any rate, hang on a second.

This is the revised market failure argument. If there are negative externalities, there are social costs that are not effectively internalized by ethics, custom, and the common law civil liability system, then legislative regulation to internalize them can be justified.

But to come to that conclusion requires a comparative assessment of the effectiveness of of civil liability and legislative regulation. Okay, if this sounds reasonable to you, then basically I'm happy. Right? This is the only point that I feel it's important to get across. If you want to do good analysis, don't jump to the conclusion that something is wrong in the world and you have to have the government fix it. Look at things. How does civil liability cover this? Does it cover it so effectively that there's no need for government regulation? Is government regulation going to be more or less effective? It could work, but is it more or less effective than civil liability? If that's the way we're approaching public policy issues, then we're doing the right thing. Then we're likely to get better results. And the main point is that I'd like people to get from my book. My main point tonight is just this. I'm going to go on, but this I'm happy if you're at this point of Course, if you're going to do a comparative analysis, we all might have beliefs about which way the analysis will turn out. I'm going to suggest that civil liability will do the job effectively, perhaps more frequently than most people think. That's my opinion. I'll make an argument for it, but if you don't buy it, that's fine. If you just get this far, I'm happy, then I've accomplished my goal.

I may not have the slides in the right order, but the conclusion at this point is good. Public policy analysis requires a comparative assessment of the effectiveness of common law and legislation as regulatory mechanisms. I will try to suggest to you that common law civil liability is an extremely effective form of regulation and often will do better than.

Legislative regulation.

The rest of the book makes arguments like that. I will go over some of them, but let me just make a generality at this point. How effective is common law regulation in the United States for the last 30 years now, one of the major political issues is called tort reform.

Corporations are constantly lobbying state legislatures and Congress for relief from tort liability. The argument they make is that civil liability is too regulative, it's too highly regulative and relief is needed. They want to escape civil liability because it's too effective. And if the problem with civil liability is that it's too effective, it can't be the case that it's not effective. So I'm not sure that the same this will apply in the uk. In the United States there's one particular torts case that everybody knows and everybody's heard of and it's the only one people refer to. It's a famous case in which with McDonald's coffee, I don't know how many of you are familiar with that, but the case is one in which.

Someone drives up to McDonald's and orders a cup of coffee at the drive in window, pulls over and parks. His grandmother is next to him. He hands the coffee to his grandmother. She puts it between her legs and tries to take the cap off. And the coffee spills on her lap and she has third degree burns and she wants to sue McDonald's for that. She sued for the.

Cost of her medical injuries, which was $800. And McDonald's didn't settle and the case went to trial and famously it was reported inaccurately, but this woman ended up recovering $2.9 million which was reduced by 30% because of her own foolish way of opening the coffee cup. And that was an example of how unbelievably foolish civil Liability is, but it's not. It's an example of how effective civil liability is. So here's the facts of that case. At the time, McDonald's, by corporate specification, served coffee at between 180 and 190 degrees Fahrenheit. Obviously, that's too hot for people to drink. Why did they serve it at such a high temperature? I've heard the argument that it tastes better if it's brewed at that temperature. That may be true. I'm not a coffee drinker, I don't know. But at least part of the reason was people buy the coffee at drive up windows and if it's hot, it's still hot later when they start to drink it someplace else. And that had value. So that's why the coffee was served at that temperature. But at that temperature, coffee spilled on human flesh can cause third degree burns in between two and seven seconds. It's an extremely dangerous product.

Before the case that I'm talking about, McDonald's had been sued 700 times for serious burns from coffee spills. Sometimes people spill it on themselves, sometimes employees spill it on them. But McDonald's knew that the product was as dangerous as it was and continued to serve it at this high temperature. And the lawyer for this woman went into court and argued to A jury of 12 people, McDonald's is exposing the entire population to a dangerously unsafe product. And they're not going to stop. They've shown this has happened 700 times. They're not going to change their policy. The only way to stop them is for you, the jury, to send a signal. And he asked them to give a judgment equal to two days worth of profits that McDonald's makes on coffee to the woman. And they did.

I use that case as an example because I was a Georgetown professor at the time. The day after that decision, I was driving into work and I had the radio on and the reporters were interviewing the managers of fast food restaurants of all different types. They interviewed somebody from a local McDonald's who said, oh, no, no. Now we serve our coffee at 157 degrees. At that temperature, it takes up 30 seconds for there to be a burn. And he's interviewing all of these different fast food restaurants in which case, and they're all saying they serve the coffee at a lower temperature to make it more realistic. I'm sure some of you are Starbucks people or you like going to coffee places. I'm not a coffee drinker, so this is secondhand. But now when you get a cup of coffee in one of these Cups. Usually there's a cardboard circle around it so that when you hold it, it's not hot on your fingers. The other thing that's also usually there is a plastic cover that's sculpted and comes to a little.

Rectangle, and you sip the coffee from that. If this is familiar to you, the explanation for the existence of those things is this one little old lady. Because after a lawsuit, not only did they reduce the temperature of coffee, they realized it was dangerous and they started serving it in a safer way. That's a pretty good example of effective safety regulation. Now, at the time this happened, we had something called the Consumer Product Safety Commission in the United States, and it never paid any attention to how hot coffee was or whether it could cause third degree burns. There was no regulation coming from the government. And even if you had tried to regulate through the government, there would have been enough lobbying on one side or another. So 10 years later, the coffee might be served at 170 degrees. If you make a comparison between safety regulation through.

Legislative regulation or safety regulation through civil liability, in a case like this, civil liability looks pretty good. The other thing about regulation by civil liability is that government has limited budgets, has limited resources. They have to regulate everything, and they're going to triage. They're going to regulate the more important things rather than the less important things. They can't do everything, but there's no limit. There's an army of regulators out there called plaintiffs attorneys. They're everywhere. Unlike state agencies, they don't have a limited budget. They work by contingency fee. If somebody's been injured and another party's acted wrongfully, they'll take the case at no cost to the individual. Because if they get a judgment, they collect their fees from the judgment. There's no public choice issue here. There's no way to capture them. If a corporation is doing something that's unsafe, injures somebody and then settles with that person, all that does is send a signal to everybody else who's injured, bring a lawsuit. You can get money.

You can capture legislators, you can buy off regulators. That's possible. That's what lobbying is for. There's no way to capture plaintiffs attorneys. And then again.

Which is more effective? If you run an airline and you cut corners on safety in the United States, the FAA might give you $100,000 fine. That's bad. That's the cost of doing business. If you cut corners on safety and a plane crashes, you're facing about a billion dollars in civil liability, which is the real deterrent. Which is the thing that incentivizes companies to act safely. A government fine, which is the cost of doing business, or a massive liability that can come from engaged negligently failing to protect the public. There's good reasons to think that civil liability is effective. Now, I had a picture up there. I'm going to go back to it. Another feature of the United States is if you drive on the highways.

Everywhere, there are billboards with lawyers, pictures on them saying, have you been in. One of the favorite ones is have you contracted methothelioma? Call this number, you have a lawyer. They're everywhere. When I was preparing for this, I ran into this. I decided to put it up there. I'm renting this billboard. I'm just renting this billboard. So an injury lawyer can't. That's how common it is, that there are personal injury lawyers who will take your case. And what they're looking for is highly capitalized large corporations who are not acting in the interests of the public, who are doing things that are unsafe. That's if you are endangering the public and you have a lot of money, you are a target of regulation. That's not true if the regulatory forces are political and can be influenced by the large corporations that can engage in lobbying. All right, that's my basic argument. I will spend some time making it more specific and then I'll try to quit and entertain your comments and we'll have a discussion about it. All right. The rest of the book has specifics. So one of the chapters deals with environmental regulation.

Environmental degradation or pollution, things like that is a real problem. The usual analysis of environmental issues is that environmental problems arise when there is commonly held property. It's a famous article called the Tragedy of the Commons, which says when property is not owned, when it's open to everyone, human beings tend to overexploit it. And the example that is given in the article is many.

Herdsmen who are grazing cattle on a common pasture. And.

If the number of cattle on the pasture is below a certain number, no problem. They eat the grass, the grass grows back and it's sustainable. But you can put so many animals on the pasture land that they crop it so fast that the grass is destroyed and it doesn't grow back. And now the resource has been dissipated. And that's the problem. Overexploitation. And the article says there's two ways to deal with these kind of environmental problems. You can restrict access to the commonly held property, or you can privatize it so you can Get a regulator. Famously, in the Old west, the guy who they hire with the gun was called the regulator. A gunman would stop people from either stealing cattle or from adding cattle where it shouldn't be. The threat of harm will restrict access, and that can protect the resource. But the other thing you can do is you can privatize. If you take the pasture land and you divide it up into privately owned property, each of the herdsmen will graze cattle, but they will be careful not to put so many cattle on that he destroys, he or she destroys his or her own property. Those are the two solutions. All right. When you're dealing with environmental regulation, I think we're in the world of the false dilemma again, because the way things are depicted is we're going to have environmental degradation or we need government regulation. What's being said is there's a problem with the way things work in the market, and the only solution is government regulation, which is restricting access. When the government legislates, it restricts access. It says, you can't put this into the air, you can't put this into the water. You can't destroy property of endangered species. It's restricting access. That's one solution, and it works. That's a way of dealing with environmental problems, but it's one solution. The other solution is to privatize. And privatize just means aligning the incentives of the individual with the preservation of the resource. And what you want to do, if you want to do good analysis, is you ask which of these two options will work better. Don't jump to the conclusion that you have to restrict access first. See whether there's a way aligning incentives. I won't go into a lot of detail. I have some examples in the book. A famous one is.

The seahorse was in danger of going extinct. People along the Philippines would harvest the seahorses and sell them to China. Because it was a valuable product in China, people believed it had aphrodisiac qualities and the seahorse was becoming depleted. What could you do? Every way of restricting access to the seahorse was tried and failed. But there was one woman, she's a. Was a British marine biologist who went to a town on the coast of the Philippines, a town called Honduman. And she just observed what the fishers were doing for a while. And after she was watching, she started to give them little advice. So one thing is that the male seahorse is the one that's pregnant, and it releases hundreds of babies at the same time. And the problem was they needed the seahorses to sustain themselves. That's where their income was from. So they would just take the pregnant seahorses out because if they left it in the water to commons, somebody else would grab it. And so this marine biologist said, here, let me show you how to build little floating cages with mesh that's small enough so the seahorse can't get out, but large enough so the babies, when they're born, can go out and can survive. And you put. The fishers started to put their own initials on it and leave the cages there. And they had privatized the resource and they started to get more seahorses. So now they trust her. And she says, well, here's another thing you can do. And she says, take a certain area and make that a no fishing area so that the seahorses in there can repopulate and only take the ones that are someplace else. So they trust this person enough now. So they do that. They created a managed commons as a way of not fully privatizing, but as a way of aligning incentives. This sounds like it should be a story with a happy ending, but no. Once they did that and they started to have more seahorses, people from up and down the coast started to come and steal. They were poaching. They came in. There's more seahorses near Handdamin, so they would come and get it. There's a video on this. The inhabitants of Handiman are out at night in outrigger canoes with little lights, guarding the territory and making it difficult for the poachers to come in. And eventually people from the rest of the area come down and say, what are you doing? And they take the techniques back with them. At the end of the video, this woman is showing the people how to create private seahorse farms to repopulate.

The species. This is a famous story because this was so successful that in the United States, in the aquarium in Baltimore, there was an entire exhibit for a long period of time called the Handemann Project, which shows how you preserve the resource by changing incentives. In contrast, there are examples of trying to save the African elephant by restricting access and saying you can't trade in the products. And that's not working very well. So privatization is often a more effective way of preserving resources than legislation. You don't have to believe my argument if you don't want to, but if I'm convincing it to you, you should make the comparative assessment before you make your decision. I won't talk for long about it, but the BP oil spill in The Gulf of Mexico is a fantastic example of the comparison between legislative regulation and common law regulation. And the BP was drilling for oil a mile deep in the Gulf of Mexico.

Why would any company be willing to do that? If something goes wrong, there's no way you can control.

There's nothing you can do about it. It's immensely dangerous. And if something goes wrong, you're going to pollute such a wide area that you can't get liability insurance. Nobody was willing to drill at the floor of the Gulf of Mexico because of civil liability. Civil liability was a regulatory force that prevented companies from engaging in an unusually unreasonably dangerous behavior because they can't get liability insurance. So why were they drilling there? And the answer is, it was the policy of the United States government divided the floor of the Gulf of Mexico up into squares which they called oil leases. They wanted companies to pay them for the oil leases and extract oil because the government would collect the royalty. And so it was their policy to have people drill in an unreasonably dangerous manner. And to incentivize them to do it, they passed tart reform. There's something called the Oil Pollution act of 1990, which puts a liability cap on any company drilling for oil in the Gulf of Mexico. Now, the liability cap was high. I think it's $75 million. That sounds like a lot. But the amount of profit you can make from drilling there was great enough so that that made drilling economically reasonable. And so the oil companies drilled there. Of course, the government wasn't. I almost said the government wasn't foolish, but the government said, don't worry, we'll regulate it through legislation. And they created something called the Mineral Management Service, and that was going to regulate the drilling for safety.

They never increased the budget. The regulatory agency had a job, number one of providing for safety, number two of collecting the royalties. And the people who staffed the service were all local people. There was no regulation. In fact, they were throwing parties for the oil companies were throwing parties for these people after the fact. When the interviews came out, people were saying, oh, yeah, they're just good old boys like us. They've been part of the oil industry forever. So with bp, you have regulation from civil liability that prevents the dangerous behavior. You have regulation from legislation which doesn't provide any regulation at all. It's another good comparative assessment that's environmental freedom of speech is another issue. This is a big issue in the United States because we have the First Amendment. I think this is generalizable. The false dilemma is presented as there's either unregulated speech or speech regulated by the government. And that's why you have to have all of these state regulations on what people can say.

That's a false dilemma. It's supported by what I think is the world's most famous non sequitur. Famously, Oliver Wendell Holmes is quoted as saying, you have to have regulation on speech because you can't be allowed to yell fire in a crowded theater and cause a panic. He also said you can't.

Give a speech to people sitting outside the corn merchant talking about how he's starving them because it's likely that they'll go in and kill him. So there has to be regulation on speech. That's correct. And it's a complete non sequitur. Of course you can't yell fire in a crowded theater and cause a panic because you'd be sued for battery because it's regulated by the common law, because civil liability prevents those kind of things. Generally speaking, there is no such thing as free speech, by the way. There's only free and responsible speech. You can say anything you want to. And if your speech harms somebody else, that person can sue you for. It. Could be defamation, eyeball or slander. If you damage your reputation, but not just that misrepresentation, you can be sued for that. Perhaps more importantly, negligence.

I teach torts in my case book. One of the cases is a woman goes to a gym because she's deconditioned and she wants to train. And at the first meeting where they're evaluating her, the employee tells her to lift a weight that's unreasonably too much. She tries to lift it and she's injured. She sues and recovers. What is she suing for? The person for what the person said. He said, lift this. He wasn't careful enough. He sued. Negligence is regulating speech. We have tortious interference with.

Business transactions in some places. Still the case you can sue for breach of a promise to marry, we have the intentional infliction of emotional distress. If you say things intended to cause emotional distress, if you call up somebody and tell her that her husband's just been killed in an automobile accident, that you can sue for that speech is regulated by civil liability. Do we need additional regulation on speech from the government? That's a good question. You should do the evaluation. I will point out that in the United States there was no regulation of speech by the government from its founding till 1917. And then the first time there was.

Conviction for somebody based on speech, it was because somebody was distributing pamphlets saying, you should oppose the draft in World War I. And that person was convicted and sent to jail for a violation of the Espionage act because, in the words of Oliver Wendell Holmes, that activity presented a clear and present danger to an interest the government was entitled to protect. Does that really sound like the kind of thing that's a clear and present danger? Maybe not to modern ears. But once you allow there to be regulation from the government, it's unlikely to be regulation that prevents harm to individuals. It's much more likely to be regulation that suppresses politically unpopular interests. And the history in the United States since then is pretty much that's the kind of regulation we have. So at one point in time you couldn't advocate for communism. In the book, I have a list of all the things that are protected and aren't protected. Are movies protected? Yes. Obscenity? Yes.

Obscenity? No. Pornography? Yes. Unless it's child pornography, then no. Speech and school, if you look down, it's impossible to have any coherent explanation for what the government can, what's protected and what isn't by the First Amendment. And all of it's unnecessary because civil liability provides the regulation we need.

One of the chapters is about criminal law. The way we think of criminal law, either we have criminal law or there's no mechanism for discouraging violent, harmful or dishonest action. And if that's the case, we need strong criminal law enforcement. That's a false dilemma. The right way of analyzing it is do we need criminal law and criminal law enforcement, or is there some alternative mechanism for discouraging violent, harmful or dishonest action? Here, tort law goes a long way.

Assault, battery, false imprisonment, all these things, they might be crimes, they're also torts. And if you do something that harms other, you can be sued and have to provide compensation. So tort law, historically was the mechanism that provided order originally. I have a lot of discussion, which I won't go into in the book on this, but at least you should ask the question, do we need a system where the state punishes people for breaking its rules? If we already have a system in which people who are harmed by other people's actions can sue and get compensation, there's a question there that should be addressed, and that would be better analysis.

Okay, I said I would spend most of my time focusing on Thesis one. I did, because that's what I want to talk about. I'm going to wrap up in a moment, but I should say at least something about Thesis too. So I Will, the second last part of the book is how far can we go without legislation? How far can we go before without where these kind of emergent order practices.

Run out and we need the state to step in. So one thing it's worth realizing is that you don't need government to have law. Right? Common law is law. It's binding. It's as much law as legislation. In fact, it's most of our law. Common law is law. It's binding independently of individual consent. It's just not made by any particular human beings. There's no people who at any point in time make the law. It doesn't subject some individuals to the will of others. We know common law is law that doesn't require a state because common law evolved despite without the state. Common law is the law of anarchy. So one thing we know is that you can have a well functioning society without legislation, because that's where our society came from.

This one is just for your speculation.

I was walking with another scholar who once said to me, you know, the best way to show that something is possible is to show that it exists. So how far can we go towards not having the government supply things? Well, we should look around and see what actually exists. A law. I just said about law, the law that undergirds our prosperous commercial society wasn't made by the state. If that's the case, you can have law without the state. What about courts though? Because the Lockean argument is you have to have police courts, national defense and SB objective law. Well, if we're in England or the United States, our law evolved in the absence of monopoly courts. In the past.

In England there were a wide variety of different fora for settling disputes. There were manorial courts, there were hundred courts, there was ecclesiastical courts, there were merchant courts. There were all these different courts functioning to make rules. Over time they became.

Centralized. But even when the common law became.

The dominant way of settling disputes, the common law itself had four different parts. There was the bench of common pleas, the King's bench, the exchequer and chancellery. And these were in competition with each other for jurisdiction.

The law that we have now evolved in the absence of a monopolistic court system. It's not till 1873 when the Judicature Acts are passed that the courts of England become centralized in a hierarchical fashion. And the United States followed suit fairly soon thereafter. In one of our states there's still courts of law and courts of equity. Not all of them were joined. But since we have a society that functioned in the absence of monopoly courts. That should be evidence that a society can function in the absence of monopoly courts. And then police also, of course, police have to be provided by the government. Right. Except the Bow Street Runners was the first municipally, municipally funded police service in England and that's in 1749. Bow street runners are famous for that. There's like 11 of them.

Were funded out of the Bow Street Court by John and Henry Fielding in the United States. I think it's Boston has on its website Boston police force. First government police force in the United States, 1835. I think New York is 1857. It's not the case that before 1835, Boston was.

A place where it was the war of all against all. And it was chaos and it was the Hobbesian world of total war. They were civilized before then. England was civilized before 1749. So if you can have a society in the absence of government police, if you do have a society that functioned in the absence of government police, then it's possible for society to function in the absence of government police. All right, I'm at my time. Let me stop and open things up and entertain your questions and comments.

[C]

Right, let's give our speaker a round of applause.

[A]

Thank you very much.

[C]

All right, so we're going to have a question answer session which I will be moderating until 8pm I invite the online viewers to post the questions on a system, you know, But I'll start with the physical in person audience here. If you'd like to ask a question, if you could raise your hand and I would call on you. Yes, please, the gentleman in the tie here, if you could just state your name very quickly and then also your question after that.

[A]

So my name is Issa and I just wanted to ask.

How do you think that more common law could be like integrated and like this theory, how do you think it could be integrated more in modern day British society and in our current legal system?

[B]

Okay, I did quite get all of it. How can common law be basically how.

[C]

The common law could be more heavily used and integrated into this system?

[B]

It's a great question and I don't have a great answer because the common law as it functions now is part of the system and it's heavily used. So there are in the United States. The complaint is that there are too many lawsuits which are restraining the behavior of companies. So it is being used, it's being used in addition to regulation from the government because the assumption is that you have to have government regulation. My argument is maybe you do need government regulation. But before you jump to the conclusion that you do, if we're getting so much safety regulation from civil lawsuits, then do we really need a consumer Product safety division which is creating.

Paper rules that people have to fill out forms for? Just do the comparison. So how can you have it more integrated? We don't need it more integrated. We need to see it. If we see it and recognize it, then we'll have a better judgment of how society should function.

[C]

All right, next question. We have someone. Yes, the lady there in pink, Shatia.

[D]

Just wanted to just say thank you firstly and I've got a couple of questions.

Starting with the product liability tort law area. I just wonder. So back in the day when I studied law in Australia, we kind of looked at American.

The culture of suing everyone essentially. And like that was the specter of, you know, the American way of everyone suing everyone all the time. And we had something in the 90s called the IP reform, which was a reform of negligence laws because insurance premium were too high overall because negligence cases and other cases in tort law. I just wonder, in your radical thesis about getting rid of government and reducing legislation to the max, does that come with a proviso of.

An inbuilt liability cap or. I mean.

How would you prevent the insurance dilemma in that situation?

[B]

Okay, if I heard you correctly, what you're saying is with a system of civil liability, one of the risks is you would have rapidly escalating insurance premiums and that would be a problem.

Yes, yes, you're right. I'm not sure it's a problem. Right. If you're doing something that is unreasonably dangerous, your insurance premiums will be very high. If you're doing something that is a little dangerous but could be done safely with reasonable care, you'll have insurance. You still have to pay the insurance premiums. What's the only way to get your insurance premiums to be lower? And a civil liability system. And the answer is find a safer way of doing whatever it is. The interesting thing about our tort system is it's graded, it's at the lowest level.

If you do something intentionally to harm another party, you pay. And you can even pay punitive damages. Why? Because we have complete control over our own behavior. There's no problem controlling that. If I'm doing something and I don't intend to harm anybody else, but I'm not as careful as I should be, then I could have to pay if my carelessness causes harm to others and there would be insurance on, you have to pay insurance for that. So when we drive cars, the reckless driver gets higher and higher insurance rates. But at least where I am, if you have a certain record of safe driving, they knock it down and they give you little bonuses for safe driving. If you engage in an abnormally dangerous activity, that can be a nuclear power plant, that can be you're running transmission wire somewhere, then if anything goes wrong, you have to pay, and the insurance premiums are high. Insurance would prevent oil companies from drilling.

At the bottom of the Gulf of Mexico because it's so dangerous. The cost would be too great. You can't do everything you want to do if it's unsafe. The problem with government policy is government policy promotes development. The government wanted oil to be drilled, so it incentivized people to do it unsafely. We're seeing the same thing in the United States today.

One of what I think is the biggest problems is.

The abuse of the Internet. Everybody's complaining about the effects of social media, irresponsible journalism, all of this kind of harm that's being done from people posting things online. And the explanation for that was in the late 1990s, Congress passed a Communications Decency act which said there's no liability for Internet service providers for things that are posted on your.

Service. It was tort reforms, no liability. Anything goes. And 25 years later, we see what happens when anything goes. If there hadn't been that, it would have taken longer for the Internet to develop, and it might have been slower, and there would be things that didn't happen, but it would have developed safely. Last comment on your question. When I teach torts, most of the cases in my casework are about railroads. My students always want to know why railroads. And the answer is, at the time the cases came up, railroads was new technology. We didn't know how to use it safely. And by having these cases, we learned what the right rules were. Now we know how to use railroads. It's not an issue, but things like artificial intelligence, we don't know how to use that safely now. And unless we actually have some loss, maybe there should be high insurance rates required of new uses of artificial intelligence until we know how to use it safely. But insurance is the thing that drives us towards safety. So you're right. And your hypothesis? I think. I'm not sure it's a problem. I think it's a benefit.

[C]

All right, next question. Yes, the gentleman in a green sweater.

[A]

Hi, Professor.

[B]

My name's Adam Hill. I'm a practicing solicitor. I wonder whether your argument is universalizable.

[A]

I think the civil liability places most of the onus onto the court system to regulate transactions between companies and individuals. And for individuals, often civil liability is quite an expensive process to get into.

[B]

So how would you address the resource.

[A]

Intensity of that proposition?

[C]

Yeah, the issue of cost, the expense and, you know, needed to, to. To. To gain access to justice for consumers, for individuals.

[B]

For without the resources, the bars don't lose. It's my favorite thing about the tort system. Right? Civil liability is poor person's law. It's the law. That's why I had that picture of the billboard.

If you have no resources, you get into court. If the target, every plaintiff's lawyer is looking for is a highly capitalized company or a billionaire who does something unsafe or harmful to somebody else who's got no resources because.

The contingency fee means they get into court, the only chance individuals have against the rich people is the civil liability system.

The rich people, the companies capture the government by lobbying, but you can't capture plaintiffs lawyers.

Famous advertisement for years was if you have a phone, you have a lawyer. That means that you don't need any resources. It's poor person's law.

[A]

Hi, I'm interrupting this event to tell.

[B]

You about another awesome LSE podcast that we think you'd enjoy.

[A]

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[C]

Alright, so I'm going to ask a question from the online audience first before I get back to the physical audience. So there's a question here about what? About the concern that tort law is reactive while regulation is preventive. With rapid technological shifts, notably with the growth in AI, civil liability will not be able to prevent new threats or new problems in a timely manner.

[B]

It's a great question from whoever it came from, I'm going to agree with it. Right. If you have a situation in which there's no way or there's no way for common law liability to prevent a harm, and the only way to prevent it is to have some kind of prospective legislative intervention, then you have to have it. But you've done the comparative analysis and in a case like that, legislation looks better, so it's a good solution before you. When you do the comparative analysis, you should keep some things in mind. One, as soon as a lawsuit is settled, you have a prospective rule. Once the McDonald's coffee cup case was settled. Everybody knew that you had to keep temperature at a certain level. Two, at common law, you are not always required to sue for damages for something that has already happened. You can prevent people from doing dangerous things by getting an injunction. The difference is to get an injunction, you have to be able to demonstrate a high probability of irreparable harm from the activity. And if you can, you can stop people from doing dangerous things. So you can act prospectively. But to act prospectively, you have to have a strong case. You have to be able to show that there's a high probability this activity will cause a harm that can't be made up for later. So it is prospective under certain circumstances. Having said that, it's always possible. There's a case where the civil liability system won't prevent something that you can see clearly to be coming. And the only way to deal with it is through government. But that's after the comparative analysis.

[C]

All right, so I'll continue with the questions. The lady all the way back in purple. Yes.

[B]

Hello, my name is Belle.

[A]

Thank you, professor, for the insightful talk.

[B]

I have a question with regarding on the common law, because it relies on.

[C]

The integrity of the judge and the judgment.

[B]

What happens if the judgment is flawed and biased? Yeah, it's also a good question. I have two different ways of answering it. The first one is what I'm arguing for is a comparative assessment between common law and a legislative approach. And the feature of the common law is it's never right. The common law is always functioning improperly in the present. That's what causes it to change. But there could be crooked judges. There could be judges that act out of bias. A knock on the common law is that if all of the judges are drawn from the same.

Class or culture, they're going to have a biased view of things. That's a way in which the common law doesn't give you a perfect result and doesn't necessarily guarantee justice. But you compare that to rules being made by the government. If the government doesn't have any corrupt people and always does the right thing and isn't in the control of a class that has bias or prejudice, the government's a better solution. The question is, where is there likely to be corruption or bias more in governmental legislative measures or in the common law measures? One thing about the common law is a corrupt judge only decides one case and it makes a small change. They can't make new law by themselves. The other answer is in a real common law system and even in ours, to Some extent, judges aren't making the decisions, juries are. Juries are ordinary people selected at random. The best thing about them is they don't have PhDs. They haven't gone to, you know, high level. They're not studying justice. They just do what they think is fair. And then those decisions have to be reconciled with the others and give rise to the rules. Having a jury being involved in the process makes it more resistant to that kind of intellectual corruption than the alternative. So the jury system, to some extent, is the glory of the common law.

[C]

Right? Yes. The lady all the way at the frontier in the white sweater. Yeah.

[A]

My name is Onyeka, and my question is, according to your radical thesis, you said that a peaceful society can exist without legislation from the government and that we don't need the government. If I may ask your opinion, if there is like a conflict of interest between two people, or in this case, in the market, if we don't have central authority, who do you think is supposed to do the mediating? Do you think that humans could do it themselves? Or is there a separate medium aside from the government?

[B]

Yeah, that's a good question. You're going to make me talk about thesis, too. That's okay. The question is, if there's not a monopolistic decider, how can people who have antithetical interests decide things? And the answer is in almost an unlimited number of ways.

And I want to give real world examples. So in the United states in the 1990s, California, the courts were completely clogged up. There were so many.

The courts were so busy litigating drug crimes and, like, social welfare offenses and those kind of things that, no.

The actual civil lawsuits couldn't get through the court system. And things were so bad that the California legislature passed a rule saying you can't use the court system until you've gone through mandatory mediation. In other words, before you get to litigate, you have to have a mediation process with the person you're suing. And when mandatory mediation was.

Imposed, 3/4 of the lawsuits disappear. Because mediation is a better way of settling disputes than having a third party decision maker where it's a, you know, one party wins all or loses all, nobody likes that. But where you're both involved, that was a better way of settling disputes. So that's one alternative. Internationally, business is global, but there's no world government. So how can companies with conflicts with antithetical interests settle it without there being one known monopolistic decision maker? And the answer is, in a lot of ways, one of the most interesting aspects of this is.

Businesses know one thing. They know whatever happens, don't get stuck in United States courts. You'll be there forever. It's terribly inefficient. But there's a court in London. I might not get the name right. I think it's just the Commercial Court of London, which has an international reputation, or at least it had an international reputation for having judges who understood commerce really well. They were fast, and anybody in the world could use it for a fee. And businesses voluntarily wrote into their contracts. If we have a contract dispute, it will be heard in the Commercial Court of London because that was the better way of settling it. Businesses have arbitration clauses. They have all kinds of clauses. What's the best way of settling. Things will be different depending on the environment.

Where I grew up, my. Not me, my family grew up in Brooklyn and in an all Jewish section where they didn't trust the police or the Irish cops or anything else. If a dispute came up, they went to the rabbi and he decided there are different ways of settling disputes that work for different parties. And the answer will be as varied as the situations in which they come up.

[C]

All right, next question. Yes, lady, all the way at the front in a brown shirt.

[D]

So you spoke very highly of the jury system. Would you condemn the government's current motion towards scrapping the jury system for, like, less offensive crimes?

[B]

Should you stay the last part?

[D]

Would you condemn the government's current motion to strip away the jury system for less offensive crimes for under three years?

[B]

Yeah. So that's a UK thing, right? Yeah. One thing. The law came from the United. From England. So usually I'm very pro English. One thing that's good about the United States is they wrote it into the Constitution that everybody is entitled to a right to trial by jury, so the government can't get rid of it. If the government was getting rid of the jury system and stripping that out, would I think that's a bad thing? Yes.

The further back in time you go, the more the decisions of what the rules are come from people's view of what fairness is. And as you get closer and closer, at least the juries are still at root and then judges are monkeying with it. But if you get to the point at which judges are making the decision, and we'll assume judges have been educated, they've gone to college, they've gone to law school, they've had a certain view of what justice requires baked into their head, then the value of a common law evolution is less.

I would oppose Getting the jury out of the system. The more you get ordinary people involved in deciding what the rules are, the more likely they're going to be rules that ordinary people know how to follow the law to work has to be something that seems fair to ordinary people and is unknown to ordinary people. In the United States, we've got, what is it, 300,000? They don't even know how many federal regulations that carry criminal penalties. Nobody knows what the rules are. I can't tell you what the rules are on safety products that come from the government. I can tell you what the rules are for safety in common law. They are, don't intentionally harm people. If you're doing something that's dangerous, be careful. And if you're doing something that's really dangerous, you got to pay. That's it. And those rules work really well.

[C]

Okay, we have time for more questions. Perhaps if there's anyone in that section.

[B]

No.

[C]

All right. Yeah, the lady in the back row. Yeah.

[B]

How would common law, like, maintain a minimum wage and workers rights? Was that minimum wage?

[C]

Yeah, minimum wage. I want to hear you, if you can sort of say it louder.

[B]

If you're asking, would there be minimum wage in a common law school, how.

[A]

Would common law stop and prevent the exploitation of workers?

[C]

How would common law stop the exploitation of workers?

[B]

Yeah, yeah.

My answer would be something like yes and no. I mean, to some extent it won't. If an employer does something that harms an employee, the employee can sue. What constitutes the kind of harm that an employee can sue for? The nice thing if you have a jury is it's determined by what the jury thinks is compensable. If an employer says, I'll employ you at this unconscionably low wage, and you say yes, the common laws won't help you for things like that, you're going to have to depend on the competitive forces of the market. But.

What exactly constitutes exploitation by the employer is an open question. An example of exploitation is somebody comes to work for you, it's foreign national. They go to work for you, you take their passport, you don't let them leave. That's exploitation, and that's also a wrong that can be compensated. Or you lock the door. If you force them to work, you can sue for that. If you batter them, if you do things that injure them, you can sue for that. If you pay them way too low for what they're worth, there's not going to be a lawsuit. Common law is not going to do that for you.

[C]

Okay, next question. Yes, gentleman, just in front. Yes.

[B]

Hi, I'm Tarakh.

[C]

My question is about complex externalities like climate change. Would civil liability be able to prevent that?

[B]

That's not only a good question, it's a difficult question. So is there an answer for climate change? I'm going to be perfectly honest. I'm going to say two things. The first thing is, if I knew what the answer was and I could tell you, then that probably would be the strongest argument against having decided through a common law trial and error learning system. So to some extent, when we have new problems, we have to learn the best way to solve them. But I understand the question. It's not my area. But there is a very brilliant law professor in the United States named Jonathan Adler, and he's got an article that shows how.

Civil liability can function internationally to some extent, so that poor countries, which are being harmed by the activities of rich countries can actually get some kind of compensation. He's got something that's moving in that direction. On the other hand, I don't know what the answer is. And there's a pretty good argument that when you're talking about climate change or something like that, that could be something where if you do the comparative analysis, the common law won't work well enough, and then you need some regulation, but first you have to do the analysis. And the other thing is, read Adler's article. He might have the answer.

[C]

All right, next question. Yeah, leave it to this gentleman on the first row.

[A]

Well, you first stated that before the police force, the people were pretty much handling it themselves.

[C]

Then what was the point of creating.

[A]

The police force or any other sort of government at the first place?

[B]

What was the point of.

[C]

Of creating any sort of government in the first place? Like, what's the point of having, you know, what's the point of creating government in the first place? If these cases were being adjudicated within the common law process.

[B]

There'S two questions. Why did government arise? That's one. What's the point of creating government? Is another. My answer, what's the point of creating government? Is it could be none. If you have emergent order that will allow us to live together peacefully with freedom, then there's no point in creating government, because that will just create a mechanism or an organization that can make some people exploit others. So there might be no point. If you ask why government evolves. That's sort of an historical question which I can speculate about, but not with expertise. But usually it's because people with a lot of weapons.

Control others and invade and take over others.

Power comes about because some people want to exploit others and they can turn that into government. And historically speaking, that's where it comes from. But I don't have an answer for how you prevent that. It could be the case that there's no point to it, because if it's never the case that legislative solutions are necessary and the common law or emergent order can always work, then theoretically, there's no point in the real world. What do you do about it? The nice thing about being a philosopher is I just have to find the answer, not how to make it work.

[C]

Okay, we have five minutes. So we have time for some final questions. If there's someone who hasn't asked question yet.

Yes, the lady in this section in black. Yeah.

[A]

Hi. Hi, I'm Bella. To what extent would common law address the decimation of AI in relation to the future of work and all other aspects of a civil society?

[B]

Essentially, how can common law address future of work?

[C]

Sorry, is it about the future of work?

[A]

Yeah. So I was asking, to what extent would common law address. Mitigate, if you will, the decimation of careers in the context of the future of work? And as we see it play out now.

[C]

Yeah, the decimation of jobs. Jobs are being replaced. Automation. How would Commonwealth deal with it?

[B]

AI is going to make us all unemployed. Right. And the academics will be the first to go.

Again, I want to.

My argument is that with regard to regulating human behavior, you should always compare civil liability to legislative regulation. So that doesn't mean the argument isn't that the common law addresses everything, or it's a panacea, or all you need is the common law and everything's great. You always do the comparison with regard to AI displacing people. If we don't have a right to a job and we end up unemployed because AIs evolved, the common law is not going to do anything for those people. At every point in time, new technology causes some people to lose their job. You can't sue for that unless you have an employment contract and you can. So the common law is not a panacea or it's not something that makes sure that we have a just society. It's just something that allows people who have had one of their legally protected interests violated can vindicate it. Would we want the government to legislatively.

Protect the jobs of people for whom AI can do it more cheaply and more efficiently? We could get the government to do that. I'm not sure that that's a particularly good thing.

Again, I'M not an economist, but I've heard of creative destruction and sometimes in order for the entire society to get better, some people have to retrain or do something else.

Right.

[C]

We have time for one final question. If there's someone who hasn't asked a question yet.

If not, yes, we can go with you. Yes.

[D]

How would the radical thesis work in the context of marriage and divorce law and provision for children?

[B]

So you're asking about marriage and divorce law.

[D]

Assuming the radical thesis and no government, how would common law regulate? Not regulate, how would common law adjudicate for marriage and provision of children?

[B]

Wonderful question. I don't have time to answer it, but I recommend that you investigate this because it's absolutely fascinating. In English history, the common law was the law mostly for the rich people, because most people couldn't afford to use the common law processes. So the poor people in England almost always govern their activities by customary practices. And if you see what the customary practices of divorce used to be, they're fascinatingly interesting. And they were also misrepresented. A divorce at one point was a man led his wife in a noose with a rope into the marketplace and gave the rope to another person. And that was a divorce. And it sounds horrible and primitive, right? But it was fictitious. The idea was.

This marriage is going to be over. There's no ability to do it legally. So this is just a way of showing the community that these two people are not together anymore. It wasn't really wife selling. It was a practice that informed people in a way that was useful. There's all of these common practices about divorce, marriage, things like that, which evolved because that worked for people in the circumstances and they were too impoverished to make use of the law. Like any rules of a marriage are marriage for rich people. And.

They evolved to some extent because of religious practices. But marriage laws almost today, almost all are statutes. They're not something that evolved through a natural process. Study it, though. This stuff is absolutely fascinating. In fact, there's a book called Customs in Common which is about exactly this.

[C]

All right, we are at time. Thank you very much. Let's give our speaker a round of applause. Thank you for tuning in.

Thank you very much.

[A]

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