NARRATOR: Thanks for joining this episode of the No. 86 lecture series, in which Professor Richard Epstein discusses Torts in the Roman Law. Topics in this Episode 3 include: Liability and risk Deliberate harm and negligence Self-defense This lecture is part of a series with Professor Epstein on how this ancient legal system can provide crucial insights about modern problems. Professor Epstein is one of the most prominent legal scholars of our day. He is the inaugural Laurence A. Tisch Professor of Law at NYU School of Law, a Senior Fellow at the Hoover Institution, and Professor of Law Emeritus and a senior lecturer at the University of Chicago. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. PUBLIUS: In the previous episode, you discussed causation in the Roman Torts system. What’s the next logical part to consider? RICHARD EPSTEIN: Now, the second question in addition to causation within the Roman framework has to do with what we tend to call, "What's the basis of liability? The stock example that can be given of this is I'm sitting there in the woods and I'm taking aim at a target. I believe that there's nobody around, there's a public road behind me, somebody's walking on that road out of my view. I miss the target, and I hit the stranger. Am I responsible? Not withstanding the fact that I had no intention to harm, and in fact, just for the sake of argument, given the low probability that somebody was around, there was no duty for me to check out the premises. He was not a trespasser against my property, he was just a very low probability of that. And if you look at the way in which the Roman text is organized, it says, "Whoever harms another individual, is in fact going to be responsible," and all it seems to do is to require an intention, an intention to do some act, but not an intention to cause the particular harm that was brought about, and so essentially what happens is you now get yourself into a system of strict liability. You do an action, it results in harm to a stranger, then prima fascia, you're going to be responsible for it. Now, there are some people who say, "No, we don't believe that." And if you look at the Roman text, there's a sign of subtle evolution that talks to take place, which, interestingly enough, is identical to the evolution that took place about 1800 years later, 1700 years later in the English system, which to somebody says, "You know, we really think that it's kind of hard to hold somebody responsible when they had no idea what was going on, and so we are basically going to say, 'you may well be strictly liable for all this stuff, but we're going to give you an affirmative defense,' which says, 'Burtino, I took reasonable care under these circumstances to avoid the harm, and therefore I ought not to be liable, even if it turned out that I wasn't there.'" And so, you then get the question as to whether in order to get liability the strict model works, the negligence model works, or the deliberate harm models works? And you've got all three of these concepts sloshing around at the same time, and the question is how is it you manage to put them into some sort of order, and this is the great challenge that exists under Roman law, and it also turns out to be the great challenge that exists under Anglo-American law. PUBLIUS: So how do you approach this problem when it’s such a big challenge? RICHARD EPSTEIN: Well, I think if you want to do this, start again with a pleading device, which says we're only working about a prima facie case, which means this is going to be sufficient degree of liability unless you give us some good reason why it is that the liability ought not to exist. And one of the things that Gaius does in book four when he starts to talk about civil procedure is he talks about the rules of pleading that arise in these various cases. Now, what are these rules of pleading? Well, in the Anglo-American system, prima facie case, affirmative defense, full stop. But if you go back to the Roman system or to the early English system, that's not the way in which it worked. It was really very, very different, and here's what the basic situation was. You make this allegation. You hit me. Now, in and of itself that doesn't say anything particularly bad because I could hit you in a way which actually revives you when you're in some kind of a swoon, and nobody's going to be held liable for helping somebody. So, essentially at the end of the causation statement or the use of force is an implicit assumption that it brings about by physical or chemical changes, a state of affairs that is worse to the victim than the one that existed. So, we tend no to think of causation as a universal problem involving any physical change, positive or negative in value, we tend to isolate for the purposes of the taught law. The negative things. Now, we talk about causation and harm as though the two things are necessarily linked together when, in fact, conceptually they can be kept quite distinct. Well, so we got this prima facie case that comes out, and you hit me, and you changed these things, and essentially the basic argument that one makes is I, the defendant, have taken an action in the state of the world which benefits myself, and if you look around, it turns out that that particular action has harmed somebody else, do you want to create a system, presumptively, in which I can eternalize all the benefits of my own action, but I don't internalize the cost of that particular action, and the answer is, like, "why?" And then somebody says, "Well, suppose it turns out that the probability of harm is very low. Is that a reason why it is that you shift to the others guy? Perhaps it ought to stay with me, and if its very low and I know I'm responsible for it, I'm much more likely to take fewer precautions than it turns out if I know that it's high." So, what happens is the probability of harm is a rough signal to somebody if you're in heavy traffic, you drive more carefully. If you're on an open road, you can open up the throttle. If you're dealing with firearms in the city, you better take care. If you're dealing in the country, maybe less so. But the argument is it alters your care levels, but it doesn't alter your obligation. Either a long shot comes through, or something else comes through, and so the strict liability principle starts to exist across these cases. So then, what is the defense? And what we've said is we don't care about the absence or the want of care in these cases, or the existence of care, but what we care about is what it is that the plaintiff has turned out to do. And we start to look at this, and so to give the famous kinds of case, which comes up in all these legal systems: suppose it turns out that there are some dogs, and I have a stick, and I'm trying to separate these dogs one from another. What happens is I bash this and bash that, and one of the dogs I own, and one of the dogs is owned by somebody else, and this guy comes up behind me, and he keeps coming closer and closer to the situation, knowing full well that I'm thrashing this stick around trying to do something for his benefit, and when I pick the stick back, I poke his eye out. The question is, "Should I be strictly liable for that?" And, well, if this were a person who was minding his own business, didn't see what was going on, was on his way, why not? You were trying to save yourself and your dog. But, in this particular case, this is somebody who's essentially by approaching closer assumed the risk of the particular harm in question. Because he hoped to be able to see it. And, so what happens is the strict prima facie case essentially, now, yields to what we call an assumption of risk defense. Meaning, you have assumed the risk of the accidental harm that has been caused, and so therefore, no liability is responsible. And it's extremely difficult to find anybody who will categorically reject an assumption of risk defense, although people want to make it very clear that you know the difference between assumption of risk and knowledge of risk. PUBLIUS: Can you talk a bit more about assumption of risk and knowledge of risk? RICHARD EPSTEIN: If we take a different situation, I'm walking down a public street, and I know that there are a bunch of brigands around there and people are shooting guns, and we know that they're acting unlawfully, have I assumed the risk when I go out with knowledge of this stuff and get injured. And it's much more difficult to say that because then what you're saying is these guys can act like mayhem and I'm forced to stay home. I can't do anything to avoid this harm. And so, we draw the distinction between valente and ciente, between knowing and accidental stuff. This becomes much more clear in the Anglo-American law in the 19th century. But it's clearly implicit in the Roman stuff that is dealing with the same problem. And so you basically want to figure out why this guy is hoping to get some benefit from the activity that you're doing, getting a closer look because he's trying to save your dog, than you would in this other case. And so assumption of risk of an accidental harm is perfectly good. Now, if you go back to the particular pleading rules that we started to talk about under these circumstances, what happens is the ancient rules did not stop at a defense. So they said the prima facie case is defeasible by showing an affirmative defense, and now the affirmative defense could be defeasible by showing something that comes up with it and takes over the situation. Well what might that be? Well, now here's what you do is just change the facts a little bit and you say, suppose when this guy was wielding the stick, may have been a little bit careless. Perhaps he should have looked around one way or another to do that. Would the negligence be sufficient to overcome what's going on? And there's gonna be a lot of debate over that, but most people will end up saying, well this guy is in a pretty frantic situation. The other guy has a clear view and full knowledge of what's going on, and you're telling me that the fellow ought to be responsible because he has imperfect knowledge, knowing full well that if he turns around he may make it less effective for doing the things that he wants to do. So, all things considered, no, we think that this kind of negligence is not gonna be sufficient to override it. Is this a universal judgment? Absolutely not. So to take another situation, suppose instead of trying to separate two dogs, somebody hires you to perform an operation. And it turns out the question is when he cuts and creates a surgical wound, have you assumed the risk of that particular room, and the answer is if you haven't assumed the risk in that room, it means that every surgery, which is going to involve an initial cut is going to also involve the lawsuit. And do you really want to have to pay not only for the surgery, but to pay him money so he can pay you money for the harm that he inflicts? And everybody says, "that's kind of crazy." So there has never been a case of medical malpractice, we use the word mal for the purpose, which allows you to recover for the inevitable and accidental harms that take place. Or even the deliberate harm, in this particular case. That's what you have to do. But suppose it turns out now you assume the risk of that and you have a surgeon. And the surgeon knows what the protocol is with respect to treating certain kinds of operations. And what he does is he fails to follow the customary standards. Now, this is no longer this random man trying to separate two dogs, this is a full-time professional that's going on. And so you could make the perfectly respectable argument that under those circumstances if he does not observe the standards of care in his own profession and causes a harm which would never have occurred if he had observed the right standard of care, we're gonna force the liability back upon him. And so, this is the origin of medical malpractice. Well how good is that judgment? It's a very tricky judgment it turns out. Because what you do now is you say, "I'm gonna hold you responsible for negligence, and these harms are gonna be very big numbers. You're now gonna have to pay this guy a premium which is sufficient to cover the potential liability for negligence, and that's obviously smaller than covering the cost of the surgical wound, but it's not a trivial number. And people say, "It's just too much for me to have to pay you to cover myself, so let's make a deal." And so what happens is the malpractice case, you can start having contract rules. You can say in effect that there's a cap on damages, you can say that it has to be a very large breach of duty, and not one that happens, or could not happen in a particular case. You can do all sorts of things, and this then says, what happens is, we're now dealing with the problem of concurrence of action. Whenever you have a harm that arises out of a consensual situation, do you allow people to control the risk by contract or do you force the high tort standard of total loss upon them? And in many cases, whether or not the doctor did or did not do the right thing becomes really hard because you anticipate certain situations and come up with other situations, and then you have to make adjustments. Did you make the adjustment quickly enough or not? Do you really want to second guess things in that particular fashion? A better doctor may have been able to do this and you did not. Most people say no. So essentially what happens as you can see, we now contextualize things and the malpractice case may well give you rise to very different solutions from the situation with the dog and the stick. PUBLIUS: What about a situation where someone knowingly inflicts harm? RICHARD EPSTEIN: Well in that particular case, now we just change it one step further. And what we do is we assume that the guy knows he's behind him, the other fella, knows that we don't like this particular fella, and he says, "I've got the perfect chance for revenge." And then with full knowledge that he's standing there he swipes the stick extra hard and takes out his eye. And so we now have the following very powerful judgment, which is pretty uniform everywhere, which is if you engaged in the deliberate infliction of harm, you will be responsible, even if the fellow undertook and accepted the risk of an accidental harm. And this is a principle which applies as much in Roman law as everywhere else. And so if you start looking at that term culpa which we talked about a long time ago, what they're say in effect is you become blameworthy in these situations when you engage in deliberate wrong, just as you become blameworthy if you're disciplining a child and you engage in reckless behavior on the one hand or wanton destruction on the other. It has nothing to do with negligence in this particular case. It takes more than negligence to overcome the assumption of risk defense by considered judgment. So there isn't a uniform theory of liability which culpability equals negligence. In fact, negligence in stranger cases is too stringent a standard, because the fact that you are very careful should not excuse you from harming a stranger. And then in these consensual cases it may be too rigorous a standard, you should be protected except to the point where there's recklessness or willful disregard. So now what happens is we've introduced a world of intentional harm, and we can see how it carries over to other cases. Think about road accidents, it turns out that these involve behavior by both parties. And if it turns out that I'm speeding and injure somebody, I'm gonna be responsible for not dealing with the rules of the road. And if it turns out that somebody blocks the way, generally he's gonna be responsible for the harm that I suffer if I can't stop in time, and won't be able to recover for the harm that he suffers if I hit him. But suppose it turns out I see somebody in the road and I say, "Jesus, he's there," and I decide to speed up and deliberately injure him. At that particular point nobody has any sympathy whatsoever for the fellow who deliberately causes harm to somebody else. So you flip the thing over again, prima facie case is you hit me, affirmative defense is you didn't follow the rules of the road, explication, or rather replication will apply, is you did this wrong. And this follows very closely the Roman system of pleading. PUBLIUS: Is self-defense treated differently than deliberate or accidental harm? RICHARD EPSTEIN: Well now we also have another question, which is, suppose in fact when I struck that stick deliberately to hit you from behind, I understood full well that you weren't coming just to look at those dogs, you were coming to gang tackle me because you basically wanted to hurt me. So now what we're doing is we're talking about a system in which the relevant concept that we have to deal with is the system of self-defense or defense of property. And one of the things that we can say is, you know what, we don't like this defense. We're not gonna give it. And the Romans, when they looked, they said, nope, self-defense is something which you're entitled to do as a matter of natural reason. And if you spell out the utilitarian consequences you can see why it is that their judgment on this is one that is accepted everywhere by everybody at every time. There is no legal system which simply rules self-defense out of order as a justification. And why do we use the word justification? Because now this is a deliberate harm that we're inflicting on somebody and we're saying that if we had to do it over again, we'd do it exactly the same thing. If it were an excuse, "I'm sorry I slipped and I hurt him," and it happened a second time, would you say, "Gee, I slipped the first time, I'm gonna make sure I slip the second time." No. What you're not gonna do is do this, so you want to have strong justification for essential taking after somebody else. And the alternative is if you cannot protect yourself, then this fellow is going to be able to maim and to kill you. You will now have a cause against...action against him for a deliberate harm. But if you're dead or seriously wounded it's not gonna do you much good. If he turns to be insolvent and leave the country it's not gonna do you much good. So essentially what we say is, if somebody uses force against you, you may use force to repel him, which is exactly the phrase that the Romans used to deal with this particular situation. And they did so correctly under the circumstance. PUBLIUS: Are there limits to what can be considered as self-defense? RICHARD EPSTEIN: Well and then there's the next particular question, is, once something is done in self-defense, is that the end of the matter? Or, in fact, is there some limitations on the use of self-defense? And the answer to that question, again, has to be perfectly clear. You cannot use self-defense as an opportunity to slaughter the innocent. And so what happens is you start thinking about other ways to look at this. And one of the concerns that you raise is that is the force that you're using excessive relative to the need at hand? And so if somebody's attacking you and he's old and he's feeble, and you could simply take the staff out of his arm before he gives you harm and you say, "Sorry, I'm not gonna do that" and what you do is you just take a maximum blow and darn near kill the fella, that's excessive relative to the risk in question. And, by and large, the use of force is a privilege that we give to you, but it's narrowly construed because we don't want the force to constantly expand over and over again. And so the rule is if the force turns out to be excessive, then, in effect, the principle of self-defense will be abrogated to the extent that the form is excessive but not otherwise. Well, it turns out, does this end the story? And, well, maybe you can excuse the exercise of excessive force. And the answer is it turns out that you can. Suppose somebody comes after you, you're slightly dazed. If you understood the full situation, had full capacities, you would've realized that you could've just simply put the stick to one side, but given your tottery state, you kind of overreact one way or another. And the question is, when you make a mistake because of the danger of your condition, does he have to quote-unquote take his victim as he finds him? And generally speaking the answer is you can overcome the stuff associated with excessive force by showing that you acted, given your knowledge, in good faith, so you can excuse the excess of force, not justify it, and therefore get yourself out of responsibility. So what we've done is we've taken this argument and we've now moved six stages. But, you know, you could keep moving it further if there were other things you wanted to introduce. And one of the common distinctions that's made in the criminal law and the civil law is there are two kinds of people we have. One, there's the ordinary Joe who doesn't quite know what's going on, and the other is the policeman or the trained official. And we can say of the former, well, he has no particular expertise, we can't expect very much of him. But if you're a policeman or an officer and you're changed in these things, you're not supposed to panic. You're supposed to understand what's going on. When you're on duty you're not supposed to be half drunk, you're supposed to be completely sober. And so we can say, look, this excuse is denied to you by virtue of the fact that you've assumed a role of public authority which requires you to act with a higher standard of care. So we've now run this thing out to seven stages. And it turns out if you go through all of these steps, essentially what you will see is there's a place for strict liability with strangers, there are places with negligence when you're dealing with torts like medical malpractice in some cases, and then there are intentional harms, when you start to deal with deliberate killings, for which there can be justifications. So all the pieces start to fit together if you learn how to do it. Now, it's interesting, when the Romans did this they were very good in terms of their basic intuitions about the way in which the system was organized, but they never formalized it in that particular way. But what happens is you can formulate it in that way, and it turns out at this point the use of language is completely natural, and it conforms with the way in which everybody speaks and thinks about it. And you start from the single isolated incident in which the only fact that you know is that one person hit another, and by the time you're done you've got these civil code regulating officers as part of the same thing. This is important because we understand that police brutality is an issue that you really have to worry about and so forth. And if you can figure out why it is that officers are subject to special duties, it's going to change the way and this particular cycle is going to start to work. Now I've just given self-defense as one illustration, but it turns out that there are others that you can start to introduce into this hierarchy which are going to be extremely important. And one of them is consent to a deliberate harm, as in a fighting match of one sort or another. And here of course you always have the problem, did you induce somebody into the ring by making them false promises of the compensation that they would receive? Or by telling them that they would be protected against serious injury? Or because the other guy would be wearing padded gloves and in fact those gloves are loaded with iron bars inside of them so that the consent defense could be vitiated by fraud and so forth? It's the same cyclical arrangement that you had in these other cases. And then there's the very difficult question of cases of harm caused by necessity. And so what happens is, or what happened is, you would find yourself in a situation in which the only way you can protect yourself against the harm caused by x or by natural storm is to take it out on the property of some stranger. The common case of this would be somebody's chasing after you, or a huge storm starts to arrive and the only way you can escape it is to trespass upon somebody else's land in order to avoid the harm in question. And the issue then is whether or not this privilege is conditional or absolute. The cases is surely a more difficult case to understand because now you're not trying to create defenses against people who are wrongdoers. The person whose property you're entered has done absolutely nothing wrong whatsoever. And so the question is can you take his property or not. And what we start to do is ask the following hypothetical. Suppose it turns out that this fellow were there at the time of the necessity and he comes up to you and he says, "If you enter my land you're gonna cause me five dollars worth of damage by trampling some of the grass. On the other hand if you enter my land you're going to basically be able to save your life and that's going to be worth a million dollars to you. So let's split the difference. Pay me five hundred thousand dollars and I will let you in so you're better off. I'm better off. A mutual exchange, gain, we let it happen." That argument has never been accepted in any legal system at any time because to hold out risk when there are no alternatives are simply too great. This is not a situation where you're going to a hotel and if they raised the price to five hundred thousand dollars you'll go down the street and get one for fifty dollars. So the usual answer is if somebody actually tries to keep you from coming on theirs land when you're faced with necessity, whether you're talking about the Roman times or the modern time, you can actually gang tackle him because you now have a limited right to the access of his property. And if he stands in your way, he turns out to be the wrongdoer, and you turn out to be the innocent party. And so what therefore follows, if he's not around, generally speaking you're going to be allowed to enter that land, take refuge there of one form or another, overt an enormous harm. But then the question is, what is going to happen under these circumstances if in order to save yourself what you do is you damage some fraction of his property. And there's a sharp split of opinion, both in Roman law in this necessity case and in the Anglo-American law, as to what ought to be done. On the one hand are those people who say the only thing that really matters under these circumstances is that this guy get out safe. And if you're going to start worrying about whether you pay fifty or a hundred dollars worth of compensation, you're crazy. Make the privilege absolute. And there are other people who say, no, you know you're looking at this stuff, it's not impossible to ask somebody to say, "Well, we want you to save yourself, but we don't want you to absolutely take unnecessary risks with respect to somebody else's property. So what we're going to do is let you do what you want, but after the fact if you've damaged property you have to pay just compensation. So as to mean that the innocent party is put back in the same position after the loss that he had been before the loss. And so one of these things is a just compensation rule and the other is an absolute privilege. You can then assume the government comes along and takes this stuff, does it have to pay? And all of a sudden these cases of necessity and conditional privilege start to tie in very nicely with the larger question of when the government takes your property under dire circumstances of necessity, does the usual rule of just compensation apply to it or does it not? For which there's a split of authority in modern times just as there was in Roman law. So what happens is you can start to see the way in which all of these things start to work on the causation side. And that what happens is in virtually every one of these cases, to get things going you not only have to worry about the conduct of the wrongdoer, you have to worry about the conduct of the innocent party, so called. This is something that doesn't happen in the theft case. So it's a causal connection which is much more difficult to be able to do. PUBLIUS: Who has the right to bring these cases? RICHARD EPSTEIN: We say it's always going to be the owner, right? And that's the obvious case. But we should already be on to the difficulty associated with this particular problem. Because when we dealt with the Fortum cases, you had to ask the question, what happened when ownership was divided in one way or another? And sure enough, these things start to give you some genuine problems. And what are those particular problems? Well who is this particular owner, and how does this particular owner start the work. If it turns out that somebody dies, and then there's an heir, the heir was not the owner at the time of the injury, but does he get to recover as if he were? Or if it turns out that the thing is subject to a bailment, is it the owner who gets the damages for its destruction or the person who's in possession and so forth. And it becomes very tricky to figure out who's entitled to bring the cause of action. And the Roman system tended to want to fix on one of these parties, the modern system says each tends to recover for his own. Well, what do they recover? And this is the last point. The very last point. As the Roman system said, the damage is equal to, at least in the case of the killing of a person, to the highest value that the slave or the animal had within the previous year. And this is a very strange formula. Why would one want to adopt it? Well the ostensible justification given by the Romans is that we wanted to make sure that somebody was not hurt by the fluctuation in market value that took place over the previous year. And so we're gonna always give the benefit to the innocent party by giving him this highest particular value. But the question then comes in, why? Suppose it turns out that the usual rule for the destruction of property is that you get the fair market value at the time of death. That's the best estimate. Why do you want to go back and find some other number when it turns out that the consistent decline in the property is such that it's not likely to go back to that previous level. It's gonna be a windfall. And so the correct rule is to figure out the time of death and not to give him an option to go back a year and pick the single highest time that happened. And every modern legal system essentially accepts that article. But it turns out that there's another element that's associated with this, which is what happens if a slave turns out to be injured in one form or another? And so it turns out at the time of death the slave is worth a hundred dollars, but it was seriously injured in an accident six months ago, before which it was worth a thousand dollars. If you do the formula within the last year, then things are really going to be very, very strange because it means that you can first recover for the injury from the person who inflicted it, and then you can get the higher value in harm at the time of death from the other person. And the Romans did not shrink from that implication, plurimi, that is the highest, meant plurimi, and so they would give it. But again when you start looking into modern systems, there's no theory of causation which wants to hold somebody responsible for something that he did not do. So these are the particular rules with respect to past harms that have never taken place. Now, in book three, and we'll finish on this point, of the Lex Aquilia, what happens is we talk about things that happen to somebody which doesn't result in a killing. So it's a burning of somebody or a rupturing of thing. And the Romans basically said any kind of situation in which you create a bad physical outcome for somebody will be covered by this provision. And the standard illustration that they gave is somebody had a bunch of grain inside a barrel, and the owner didn't burn the grain, rather the thief did not burn the grain, or the wrongdoer did not burn ... what he did is he emptied the barrel in the road so it was utterly useless. And there's no destruction, but there's a destruction in use, and they say this would be covered. And in this particular case what formula do you use? And here the Romans had a different verb, it was called a writ, which means that will happen. And so now it looks as though the standard is we're not going back in time, we're going forward in time, and we're saying, well, we'll give you the amount of money that it's worth as the matter turns out within six months. Is that a good or bad test? One sense it's good, one sense it's bad. It's bad if it turns out that the loss was fixed, that is the grain is lost and that's it. And if it was worth a hundred dollars when it was lost, why would we want to make it fifty if it's lost later or two hundred if it's lost later? Stick with the value. But in some cases, for example, an animal is injured and it recovers, if you wait six months you will now know that it is in the good state of the world and so what you thought would be a thousand dollars in damage is only four hundred dollars in damage. On the other hand, you thought the animal might recover and it dies, and so a thousand dollars in damage now becomes fifteen hundred dollars in damage. So waiting in this case is very different. Because what it does is give you a more accurate estimation of what the actual damages are without creating this market fluctuation risk which you get in the case of the barrel. And so you have all of these elements coming together inside this Roman law stuff, and in the end what really happened is this entire apparatus of justification and excuse, it all comes out of the single word iniuria. Because what you're trying to do is to figure out whether something is unlawful, and the way in which you figure out whether it's unlawful is to ask the question about all of these defenses and exceptions and so forth. And it shows you what the power of exposition is. Take a single word, in a document like this, and then you can spend an inordinate amount of time trying to explicate it. And if you get it right you really understand what the system's about. And if you get it wrong, it could well be that you negate strict liability in all cases, which is what Gaius did. And so the Gaius treatment of this issue is much weaker than it is everywhere else. NARRATOR: Thank you for listening to this episode in the Roman Law unit of the No. 86 lecture series. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for more lectures and videos on Property, Contracts, and the Common Law. Thanks for listening. See you in class!