 Okay, this is Stefan Kinsella. I'm here with Mr. Williamson Evers, who I've never met in person. And he has graciously agreed to discuss with me a topic that I've been interested in a number of years, the title transfer theory of contract. And Mr. Evers, how are you doing? I'm fine. Thank you. So I'm Bill Evers, Williamson M. Evers. I'm a Stanford PhD in political science. And I currently am a research fellow at the Hoover Institution at Stanford. I was a friend of Murray Rothbard for many years and discussed political theory and philosophy of law questions with him, including questions about the law of contracts. So I think that's what we're going to discuss today. Absolutely. And I'll just observe that I've been a fan of the Journal of Libertarian Studies, of course, since its inception. And I noticed that I think your article was the very first article ever published in the JLS. That's right. It was the lead article in volume one number one. Yes, and you've had several others. Yes. And I was also the managing editor for a while. And I think your article came out in 1977 and I'm a lawyer. And so I've written on this topic and I've been interested in it since I've been studying Rothbard and Libertarian theory. And this theory has been fascinating me for a long time. My impression and I'd like to get your impression is that it's been, it's got a lot of potential. It could have more development and it's underappreciated and I think it's revolutionary to be honest and legal and Libertarian theory. Just in tracing the genesis of the idea, it appears to me that around 1974, I think your article came out in 77. Around 74 Rothbard had some sketchy thoughts on this in one of his earlier articles. So my guess has been for a while that you and Rothbard were discussing this, and you wrote it up into a longer piece. And then Rothbard drew on that in his Ethics of Liberty chapter which relies heavily upon your 1977 article. Is that basically what happened? Do I have that right? I think that's basically right. So this was a long time ago. So you and I are talking in 2014. Correct. I specialize in kindergarten through high school education policy these days. And I'm not writing in this area anymore. I'm not saying I would never write in it anymore, but I haven't for many years. I wrote in addition to this article toward a reformulation of a law of contracts. I also wrote on social contract theory and political thought. And so that's a related area. But anyway, I wanted to add your question really is about the genesis of this and Corey Rothbard and I used to talk on the telephone late at night. He was kind of a night person and we would talk quite long times. You know, maybe even hours sometimes. One of the early days when I knew him, he didn't really like to travel very much, but he loved to talk on the telephone and have people in this apartment. He enjoyed his apartment in New York City. But anyway, we used to talk about things and I was a graduate student in political science at Stanford. And I had to write papers on various topics. And so I tried to utilize the obligation to write the serious papers to also explore things that I thought were underdeveloped in political philosophy of classical liberalism. And so I did, and this is really not something I'm completely certain of, but I believe that I discussed it with Marie Rothbard that, you know, certain insights that I found in the very fragmentary way, a very scattered way and different writings of his and that he encouraged me to develop these further. And so Stanford has a great law school with a great library and I just dug in and sort of the first thing I realized was that utilitarian ideas about expectations have had a huge impact on the way the law of contracts was discussed. You know, like a lot of things, and this is something that you as reflected in your own writing, there are different ways that sort of different ways of approaching the topic that kind of end up with a similar result. Just because this focus on expectations was there didn't mean that the law of contracts was, you know, completely wrong headed or hopelessly wrong or something like that. But it meant that it wasn't thought about in a way that was compatible with a natural rights, private property oriented classical liberalism. So I looked around and I found various authors who, you know, I read things on all the different sides of this, and I found out what are the issues, what are the controversies, what are the controversies that are interesting to libertarianism. And I tried to find out how had previous people thought about it and how to press those thoughts on further and, you know, try to systematically go through the issues. And that's what I did in this article and Professor Rothbard thought it was a pretty important article. I use it as a lead, the lead piece in the new journal. And I agree with that and when I came across it and Rothbard's restatement of it and ethics of liberty, it sort of blew my mind as a lawyer. As you saw from my piece, I'm from the civil law tradition in Louisiana and there they distinguish contractual or conventional obligations as either to do or to give. Okay, so that's the conventional way of the typical way of looking at it. And from what I realized from looking at your and Rothbard's work is that pretty much every conventional legal system and contractual system can be boiled down to really an obligation to give, which is really not an obligation to give it's just a transfer of ownership of property. Okay, so to me, this whole approach rests upon an essential insight that all rights are property rights and that all property rights are rights and scarce resources and the right of ownership is the right to control it. And one of the aspects of that is the right to convey the title to someone else and that's really what contracts are. I mean, is that the basic approach that you would agree with. Yes, but I do think we have to be careful about include the right to convey because I think that the natural rights tradition in classical liberalism says that you can't sell yourself. Correct. Now you could, let's say you found a guru or a religious figure, or you joined a monastery where there was absolute rule by the head of the monastery. You could dedicate yourself in a sense you could, you know, you could make yourself survive, but you couldn't hold you to it, they couldn't enforce the contract it couldn't hold you captive as a slave legitimately in terms of natural rights, libertarian philosophy. So, and, you know, the whole superstructure of libertarian philosophy of law is built on dealing with the situation of free human beings in the society with scarce resources as you said. And so, you know, you are then that superstructure, the rest of it the conveying the alienable property, you can't sort of take that superstructure and use it to destroy the foundation which is the free person operating and the material reality of the world. So I just, you know, it's like sawing off, you're out on the limb, which is a superstructure you can't really destroy the trunk or the roots and say, oh, well that was legitimate move. Right. And which is why my, I hope your listeners haven't got lost in the metaphor. No, my listeners love this kind of stuff so that's that's fine. My, my feeble attempt to build on your work and Rothbard's was in my article that one reason I had, I thought I had to deal with the in the whole inalienability issue was because of exactly what you're talking about. I don't know if you agree with all of that approach, but it seems to me that we have to treat property rights in one's body, which is euphemistically or metaphorically called self ownership sometimes. We have to treat that differently than the acquisition of property rights and scarce resources that are previously. I agree with that. I agree with that. So I did have some differences with your paper, but I thought it was a serious paper and I'm not, you know, so sectarian as to condemn you to outer darkness or something over the differences because I think it's a very critical that you wrote. I, you know, I have some thoughts on different aspects of it, which I'd be glad to make the focus of the rest of our discussion. But, you know, I just want to mention to listeners and to this that, again, this is not the area in which I'm doing research and writing today, but you know that I can recall what I think and thought about it. So, as I went through it, I thought, you know, you know, first of all, you're kind of recapitulating what Professor Rothbard and I but Murray Rothbard and I had to say but you're also partly talking about your foundational views of what justifies the libertarian philosophy and you're, I guess, attracted to the argumentation ideas of Hans Hoppe. Am I correct in that? It is, but I don't think these ideas rely upon that but. Right, I don't think they do either. And so I would want to state that I myself. You know, I am more of a Aristotelian Tomas in the way that Professor Rothbard like to modify that in the way that Doug Rasmussen and Denial set this forward. I think that, you know, that's pretty good. Similarly, Henry Beach is another man that I think highly of. And I, but I don't oppose argumentation idea, which has a kind of a more Kantian cast to it. It was, I think, developed very well by James, Father Sadowski, James Sadowski, and Professor Rothbard also liked it. And I view that as not in conflict with an Aristotelian Thomas justification of property rights and of human liberty, individual liberty. And so we're not antagonistic, but I just thought I could say that I think they're compatible that I think that I say I, I think I find one is more of a thin justification and the other is more of a thick one and I'm just more comfortable with it. But I also think in arguing with other people, it's good to have at your disposal a thin one because it's easier to talk to people. This is kind of an what what political philosophers call an imminent critique because you're saying to somebody, well, if you, you know, think that you can do this. How can you even say that you think people should do this if you don't own yourself in order to open your mouth. And so, so that's sort of in caricatured form that argumentation argument. And, you know, I think at a minimum, it ought to make people pause. So I think it's good, but I just think I want to kind of go deeper. Now, I think you make a good point that Professor Rothbard and I seem very like standoffish about the word or term promises and we're very, you know, you use like the phrase that we're fixated on it. That was probably too harsh. We're kind of writing it. We're kind of writing in reaction. I understand to legal theorists that made a lot out of mere promises. Exactly. And I think you're, you're quite right in saying that if the substantive effect and intent of a promise is to convey title, then it's, you know, quite good contract and it would be so under libertarian thinking. Right. And that is your point and I agree with it. But I mean, I also think and you would, you're kind of in our conversation here acknowledging that you're understanding that we were reacting against this kind of cavalier breezy use of promises. Of course, with quite a substantive effect in the people that we were arguing against. Of course, and, and I'm happy to let you talk about any of this, but my point was not to get you to comment on my paper, my paper just an indication of my interest in this topic and I'm really interested in a few things about I don't know if you've paid attention to or if you recall some of these, the little minutiae. I don't know. I don't know where we. I'm sorry. I'm sorry about that. I don't know what happened. We got cut off, but I'll fix it. Okay, so what was I saying when we stopped here. Well, I was, I'm trying to remember sorry I was distracted myself but what I was saying was, I just wanted to ask you a couple of things that have stood out to me in this debate first I wanted to get your impression. Well, did you did you hear me saying that. We talked about the promises thing. Yes, yes. Okay, so then I wanted to go. And I before I did it I wanted to say that I appreciate once again I appreciate you writing the article I think it's a serious article and just because we have differences doesn't mean I'm condemning you. Well, I don't. Anyway, the first thing I wanted to discuss was this issue about the existence of something that might be owed in the future. Exactly. And I actually did want to turn to that I wanted to. So I wanted you to kind of state your view, and then I will react to it. So that's and that's fine and let me be clear this, I wanted to get your views I really wasn't trying to seek your commentary article I'm happy to, if you want to use that framework and that's fine. But I was trying to talk to you about what you've written. And I wanted to get your insight about the process and what your thoughts are on the development of this theory and how much is left to be developed and believe me I'm not a critic I'm a huge fan of your work. I think there's something to be developed. So I wasn't trying to be critical of the article. There's a few. There's a few things. I think Randy Randy Barnett, although he's, you know, this has not been the major focus of his writings, he has made additional contributions on it. I agree. And I think I think that, you know, I think that's another person who has written on this but in a sense, you're, you're right that hasn't been a lot written on it. I wonder, there's also a professor at Stanford named Marcus Cole, who's an expert on bankruptcy. And I have not explored that much of his writings on this and I don't know how much he draws on this. He's certainly familiar with Randy Barnett. I don't know. He knows about my writings on the subject, but anyway, I'd be happy to look into it. I mean, obviously bankruptcy is a strongly related to contract. And it's related to this issue that we're talking about now, which is whether someone who is called upon to perform or transfer something in the future, whether that if that thing is not in existence, what is the status of the contract. I mean, my, my view is that, you know, if you committed to something that's a legitimate contract, even if you don't have it, let's say, you know, you're supposed to have a certain amount of money to give somebody in the future and you don't have it. That doesn't, it's still a valid contract. And if you, if you're not, if you're, if you don't have it, or you're withholding it or hiding it somewhere or something. Well, that's, or you give it to your best friend at the last minute. It's still a valid contract and you owe the person the money. So then, part of the question that arises is, well, if it's a kind of theft, why couldn't you be put in debtor's prison? Exactly. And I think that's a very valid question to raise. But I think, and I know from your writing that you're not satisfied with this, but I still think, and I'm, again, I'm open to argument on all this except for the fact I'm not writing on it anymore. So, but anyway, I think, you know, there are gradations just as on robbery. There's robbery of your house when you're not there and there's a robbery when you're, you know, you're there. There's in the streets, there's robbery with, you know, a gun on you and there's robbery where they just snap and snatch and grab. So I think just as there's that there's different kinds of theft and there's lesser and greater theft and it would be this proportional to the amount of intention that's involved and so forth. This all affects the gravity of what has been done to you. I'm talking about you, the victim who didn't get paid back. So, that's part of why I don't say we're debtors prison. I think no one can speak for Murray Rothbard anymore, but I think it's similar ideas figured in his thinking. Again, I just think it, you know, particularly with specific unique items. The idea is very troubling. Let's say you have the Mona Lisa, all right, and you sold it to me but the delivery is supposed to be in the future. So at the last minute I give it to somebody else. That's crazy. You have to be still liable to turn over the thing that you owe. So I'm not, I mean, I'm kind of flippantly giving this example and it's a much more subtle topic. But anyway, that's, that's my view. Now, there's another issue that you don't really get into very much, but I think is a complicated one for this theory and is an area that deserves additional, you know, additional research program on anybody who writes in this in the future. And that is the slavery equivalent onerous damages issue. So, you know, the examples, I agree to sing. I'm an opera singer and I agree to sing in the San Francisco opera and then when the time comes I don't show up. I'm often drunk somewhere or something, whatever. So, or I just decided I don't want to do it. So, can somebody compel specific performance. Well, you and I both agree. No, they can't. But now what about a performance bond of some sort. So, I put forth some cut in the contract made with me to come and do the singing. I say well if I don't show up I owe $5,000 or $7,000 some number that maybe even more than what I was going to be paid but it would be enough to make me want to show up there. And the question is what if it were $1 trillion or something huge. Now you might say well, of course, I the opera singer don't have the one trillion so that's maybe you take care of it. But if someone doesn't agree with you, is there another problem here and the question might be, is it the equivalent to slavery is the burden. So, you know, like I will chop off your leg or, you know, I'm not killing you and I'm not, you know, whatever but something that is so bonerous that it makes equivalent to slavery. And I don't, you know, because I'm not writing in this. I don't have a quick answer. But I do think that this is an area that deserves further research further writing sensible writing. Well, I think it's a realistic realistic issue. The way I've interpreted your theory and Rothbard's in my Misesian, Rothbardian hoppy and way is that it's all about transfer of title. And theoretically you could engage in a future title transfer, which say to a debtor which basically transfers every piece of property that you ever acquire forever. Even a piece of food going into your mouth. And if you did that it would be equivalent or tantamount to a type of slavery. And so maybe some argument like that could be used to justify some type of bankruptcy type of provision which I think is getting at the same insight that you're talking about here. But I don't, I don't, so I am uncomfortable with this idea that you could convey everything including, you know, morsel of food and drink of water for the future. But, but anyway, the point that we're both getting at is that this is an area that deserves further exploration. And so I am uncomfortable with the whole idea of bankruptcy. And this is why maybe Marcus Cole has something to contribute or future other future people that maybe aren't born yet. Who knows. So, so generally, you know, the idea of bankruptcy is you say, I can't pay, you know, and I want to start over and then the law makes various provisions and it might make a homestead exemption and whatever whatever. I am not really comfortable with that. I think you still, you still owe the money and you can't just get out of it and I'm really troubled. There are people, even people that might claim they're libertarians. I don't want to get, I sound like I'm getting into a big heresy hunt here but during the last financial crisis with all the homes going into foreclosure and things like that. There were people going around advocating that people who were having trouble paying their mortgages just walk away. Walk away. I think that's the title of his book, Walk Away. Yeah, anyway, the point is, you know, we're telling people, even though you've made this contract, you made this money, now you're underwater as the phrase goes, just walk away. And the system has already built into it an expectation and a certain number of people walk away. So do it. I don't agree with that. Well, anyway, so that's that's an area that I think needs. And again, you know, I'm not writing in this area, but I, the troubles me and seems to be against libertarian values, but I'm open to argument. Well, it seems to me that the terms of the contract matter and the terms of the contract that would be enforced in a free society matters because the terms of the contracts in today's law may be influenced by the political climate and the laws that exist. So it's hard to have a pristine approach to this but let me, if you don't mind, let me get your opinion. So one of the other things that you try and do to address some of that is, you pose different, you know, you could have additional provisions like to prevent to provide for the case in which the person doesn't have the money. And in a way, you're kind of, as I said at the beginning of this interview, you're trying to get back to the point that, you know, you don't really want people to get off scot-free without doing what they, oh, and so you are trying to kind of recover this to some extent. I'm trying to get off. Go ahead. Go ahead. I also wanted to compliment you that I thought you've done a good statement of the abandonment issue. So this is a potentially tricky issue because I've got to turn this off. I have to turn you off and talk to you later. Okay. Take your time. You're talking about the abandonment issue. This is related to a lot of what we've been talking about. So if you can acquire property and do it through systematically making it part of your projects and the phrase that we often use is homestead it. You also have to be able to, so you're marking it, you're setting out boundaries, you're systematically mixing labor with it and so forth. You also have to be able to abandon it. So this is complicated because you have to make an objective recognizable over saying showing your intent. It's a little bit tricky and this is another area where further, you know, writing needs to be done on this. So let's take the Love Canal case. Okay. This is sort of not as bad as, you know, as was shown in Reason Magazine many years ago. The government was all mixed up in it, but we'll just call it some pollution thing. Okay. So you've created this pollution thing and then you walk away. Okay. Now, maybe nobody occupies it, but let's say it bubbles over or it's emitting harmful rays or it's somehow has some kind of geyser effect and it's spraying out into the atmosphere and falling on other people. Can you just, you know, abandon it and say, this is not my property anymore? I don't think so. It's just like I shoot a bullet on a way of abandoning the bullet, but the bullet keeps going and it hits somewhere. Are you planning to land mine or something like that? Right. Exactly. There's a cause for it. But anyway, there's room for more writing and thinking about this. I agree completely. Then I think you get in interestingly into the issue of inalienability and punishment. And so to explain this a little further. So let's so let's say we're in agreement that there's that people are inalienable. They can't sell themselves, but their material goods may be intellectual goods. This is another whole topic that I don't want to get into. But anyway, there are material goods that are alienable and that people are transferring titles to and so forth. And now let's say you commit a crime. Okay. And punishing you a restitution effort might take what you have or it might compel you to do something to restore to the other person or it might imprison you, especially if it's a retributive punishment approach. And libertarians are divided among classical liberals are divided among different punishment theories, but certainly the most common are restoration or and retribution. Kind of balance. Right. Right defying the situation. Right. Right defying in various ways. So this might and then depends on the idea that you are inalienable and that people can't compel specific performance from you. I agree. So I think this issue which you raise and is one that needs further discussion. And so I think that's an area that. Well, let me if you don't mind, let me ask you. So I'm kind of through my thoughts on the whole thing and I do need to call back the person that was calling me there. Let me let me thank you for taking your time to speak with me and I really appreciate what you've done. And I don't know if you're interested, but I'd be happy to speak with you just personally in the future if you're interested. I really appreciate what you've done in the past. And I think it's it's a it's a great endeavor. And so I will thank you for your time. And I will let you go and I will send you a copy of everything and we can talk about it before. Okay, well, I authorize you to I authorize you to post this and in whatever form you want to. Thank you, Mr. I appreciate it. Nice talking to you in person. Thank you.