The Federalist Society mourns the loss of Professor George Priest, a giant in the creation and development of the law & economics movement and a longtime friend of the Society and faculty advisor to our Yale chapter. He will be greatly missed.

Below are remarks from others who knew him well. 

The Yale Federalist Society Student Chapter describes Priest's relationship to members.

Yale Law School Mourns the Loss of Professor Priest.

Professor Steve Calabresi of Northwestern Pritzker School of Law, Co-Chairman of the Federalist Society’s Board of Directors, offers the following remarks:

George Priest was the beloved faculty advisor to the Yale Law School Chapter of the Federalist Society from January 1982, when Professor Ralph K. Winter was sworn in as a judge, until his death forty-two years later this week. I had the privilege of taking his Antitrust Law course when I was a student at Yale Law School, and he was a brilliant teacher and scholar. George Priest attended countless Yale Law School Federalist Chapter banquets and was always willing to support the Chapter in a public way when no one else at Yale was available to do so. He was an outspoken libertarian who served as one of the 13 members of President Ronald Reagan’s Commission on Privatization, which was established on September 3, 1987 and which privatized Conrail. George Priest was friendly, outgoing, patient, and cheerful in a way that I will always remember and seek to emulate. He played the same role for the Yale Federalist Society over the last forty-two years that the late Charles Fried played for the Harvard Chapter of the Federalist Society for many decades. George Priest was always there for us when we needed him, and he will be sorely missed.

 

Professor Todd Zywicki of the Antonin Scalia Law School describes when he first met Priest, and summarizes his scholarly contributions:

Fall 1998, I was a junior law professor and was selected to present my paper “The Rise and Fall of Efficiency in the Common Law” at the prestigious American Law & Economics Association Annual Meeting. The article (published in 2003) began with a mild critique of George Priest’s seminal article from 1977, “The Common Law Process and the Selection of Efficient Rules.” I had never met George before. But as I was standing at the podium beginning to speak, the door swung open and in walked a large, imposing man and I somehow knew, and thought to myself, “Holy cow—that’s George Priest!”

Well, I survived the talk. And the first person to approach me was George. And I said sheepishly, “I am correct that you never really addressed that inconsistency in your work, right?” And with a twinkle in his eye and a big grin George said, “Yeah, you’re right.” And with that, I was added to the ever-growing list of admirers, and friends, of George Priest. 

George’s intellectual humility, honesty, and joy for the civil exchange of ideas in my initial meeting embodies why so many of us treasured George as a friend, scholar, and man. George ended his career as one of the towering legal scholars of his generation—a founding father of law & economics as well as being among the most influential torts and antitrust scholars of his generation. As the most visible libertarian-conservative member of the Yale Law Faculty for decades, George mentored a generation of conservatives into clerkships, politics, and careers. As he battled poor health in his later years, his sense of delight and warmth never flagged and he remained intellectually engaged until the end, publishing his essential book The Rise of Law and Economics: An Intellectual History in 2020.

But George began his career in more humble environs. His first teaching position was at the University of Puget Sound (now Seattle University Law School), then he moved to SUNY-Buffalo and UCLA before landing at Yale in 1980. But George never lost track of his modest beginnings—as exemplified by my initial encounter, George was more interested in the integrity of your ideas, not the gild of your faculty letterhead. He was a mentor and friend to many.

The range and depth of George’s intellectual influence is vast. 

According to the HeinOnline database, Priest’s article “The Selection of Disputes for Litigation” has been cited 447 times. In 1973, Richard Posner asserted in The Economic Analysis of Law that the common law tended to generate economically efficient rules. Yet Posner provided little explanation for why that tendency arose beyond speculation about judicial preferences for utilitarian efficiency. Priest’s article in the Journal of Legal Studies offered a hypothesis: “inefficient” rules tended to produce more conflict in society than “efficient” rules. More conflict would result in more litigation. Priest suggested that even if precedents are overturned largely at random, the propensity for inefficient rules to be relitigated would tend to create a dynamic toward the weeding out of inefficient rules. No black box of judicial “preferences” was necessary to reach this result. Priest’s article remains one of the most important foundational articles in law and economics.

That same year, George Published another foundational law and economics article with economist Benjamin Klein, “The Selection of Disputes for Litigation” (which has been cited 1116 times according to Hein). In that article they articulated what has become known as the “Priest-Klein” hypothesis, noting that scholars typically look to understand the operations of the legal system through the careful study of appellate cases. Appellate cases, however, are not a representative sample of the type of legal issues that arise in society or even the types of cases that are litigated in trial courts. Instead, the cases that actually reach the appellate level are subject to selection bias—they are the tip of the iceberg of the small number of cases where the law is unsettled or the facts are particularly idiosyncratic such that the expected outcome of the case is a 50-50 coin flip. Most disputes are not 50-50, however, and are clearly predictable one way or the other leading to settlement.

George’s second great area of legal contribution was in the field of tort law and consumer protection. George was one of the great theorists and historians of the liability explosion beginning in the 1960s and continuing for decades to come. His articles “The Invention of Enterprise Liability: A Critical History of the Intellectual Foundation of Modern Tort Law” (1985) and “A Theory of the Consumer Product Warranty” (1981) document the displacement of private ordering of legal affairs through contract law and product warranties by the growth of tort law and theories of strict liability. 

Third, George made significant contributions to the body of antitrust law and regulated industries. Although George taught antitrust law for years at Yale and influenced waves of Yale law students, his scholarship on antitrust law has been somewhat neglected. George showed how Robert Bork’s economically-oriented paradigm of antitrust law became so influential on American judges, noting that it was as much owing to Bork’s legal persuasion as his economic knowledge. In “Bork’s Strategy and the Influence of the Chicago School on Modern Antitrust Law” (2014), Priest argued that it was Bork’s critique of pre-Chicago antitrust law as lacking grounding in “neutral principles” and the rule of law that made the courts receptive to his arguments. One of George’s first articles was “The History of the Postal Monopoly in the United States” published in the Journal of Law & Economics in 1975; in 1993 his fascinating history of regulation in the United States, “The Origins of Utility Regulation and the ‘Theories of Regulation Debate” that explored the history regulatory capture by industries seeking to use government regulation to cartelize industries from the earliest days and how that history mapped on to the more recent deregulation of the 1980s and beyond.

Ever joyful and ready to teach his students about the virtues of capitalism and freedom, toward the end of his career George turned to one last great teaching project—the “Capitalism Film Society” where he used great movies about Capitalism to teach law students about the blessings of capitalism and free enterprise. In 2022, the Law & Economics Center at George Mason organized a conference for Law Professor on “Teaching Capitalism,” the highlight of which was watching the 1988 movie “Working Girl” starring Melanie Griffith. Starting the movie as a lowly receptionist, the plot of the movie involves Griffith through her individual intelligence, hard work, and personal decency overcoming the obstacles in her path to triumph and become a successful business leader in her own right. It is easy to see why George Priest, who also rose from the modest beginnings as a law professor at the University of Puget Sound to the top of his profession through intelligence, hard work, and personal decency might find that movie full of lessons for teaching about life, capitalism, and the virtues of the free society and the rule of law.”

 

Professor Paul Mahoney of the University of Virginia shares some remembrances of George Priest as a teacher:

George Priest taught me Contracts in a small group of 16 students. I doubt I would have become a law professor otherwise. His ability to illuminate the cases using economics and history was a revelation. Equally important, he took a genuine personal interest in his students. He made being a law professor seem like the coolest job in the world.

When I was a student and working on a moot court brief, I spoke to George about the argument. He advised me to concede that the case was a close one and could come out either way, but to give reasons why my side had the stronger argument on balance. In 40 years of reading and contributing to briefs, I’ve never seen one that used that tactic. But it revealed something important about George—as competitive as he was, he cared above all about intellectual honesty.

 

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].