I have only three comments about this: We must run this article. We must meet the author, whoever he is. And we must hire the author to work for us.” Those were Antonin Scalia’s words, as remembered by Walter Olson, who these days is a Cato Institute senior fellow. They date from the early 1980s, when Scalia was a University of Chicago law professor, remotely editing Regulation, a publication then housed at the American Enterprise Institute in Washington, D.C.
The subject was an unsolicited submission from Peter Huber, a perceptive essay about the government’s “double standard” when regulating the risks of new technologies versus old ones. This first impression launched Huber’s career as a public intellectual. Regulation indeed hired Huber, who went on to coedit the publication with Olson; the two later moved to the Manhattan Institute, where they’d jump-start a national conversation about tort reform with a series of controversial books.
But maybe Huber was destined to capture the public’s eye, no matter what. Over a life that began in 1952 and ended in 2021, he developed a remarkable résumé. A 1982 Harvard Law grad with the rare summa cum laude distinction, he clerked for Ruth Bader Ginsburg on the D.C. Circuit Court of Appeals and Sandra Day O’Connor at the Supreme Court. The twist: before graduating law school at 30, he had attended the Massachusetts Institute of Technology, starting at 17; had earned a bachelor’s, a master’s, and a doctorate in mechanical engineering from the school; and had become a professor there at 23. Studying the safety of nuclear reactors’ cooling systems, he got interested in the law’s approach to high-tech risks—a combination of topics that would drive much of his life’s work—and continued to teach thermodynamics at MIT while he studied law at Harvard, commuting via moped.
In 1987, he added telecommunications to his list of mastered topics. Under a consent decree breaking up AT&T, the Department of Justice needed a consultant to write a lengthy report on competition in the telephone industry and had trouble finding the right person. The well-connected Huber took an interest in the job. “AT&T had hired enormous numbers of economists, lawyers, and consultants, and DOJ didn’t want someone who had worked for AT&T. They really were trying to find a unicorn, someone who knew all about telecom but had never done any consulting,” recalled Thomas Hazlett, a Clemson University economist specializing in telecom issues and a friend of Huber’s. “You can’t just have a technical person and you can’t just have a lawyer—you need someone who can handle law, economics, and technology. Well, God created Peter Huber.”
Huber’s report, written in less than a year, documented technological and market shifts that would revolutionize the industry in the years to come, and argued for relaxing some of the restrictions placed on the “Baby Bell” companies. “He put together the big picture, which is such an extraordinary feat,” Hazlett said. “It’s what became our understanding of the Internet.” Huber would cofound a boutique law firm that specialized in telecom issues.
Later, Huber shifted his focus to environmental and energy issues, often teaming up with his MI colleague Mark Mills, who, like Huber, combines hard-science academic credentials (he’s a faculty fellow at Northwestern University’s McCormick School of Engineering and Applied Science) with an ability to write for a lay reader. The two published a newsletter, The Huber-Mills Digital Power Report; helped to create the company ICx Technologies; and coauthored The Bottomless Well, a book on the future of energy that sold in impressive numbers, became required reading in college classes, and won the praise of Bill Gates.
This relationship also had its roots in a first-Reagan-term Regulation piece by Huber: Mills was impressed after reading it and reached out. “We ended up having intersections of interest on nuclear power, regulatory law, junk science, all that kind of stuff,” Mills remembered, along with enjoying Shakespearean theater together with their wives.
Still later, Huber turned to issues of personalized medicine, particularly the way that America’s out-of-date legal regime can dampen medical progress, once again capturing the attention of key policymakers. He leaves behind an immense, influential, and highly readable body of work across all these topic areas and more.
In 1988’s Liability and 1991’s Galileo’s Revenge, the works that cemented his status as a public intellectual, Huber argued that the growing threat of lawsuits, enabled by loosening standards in the nation’s courts, stifled innovation, undermined personal responsibility, and cost a lot of money. These books, alongside Olson’s The Litigation Explosion, greatly aided the cause of tort reform in the 1990s by showing the public how lawsuits had run amok.
Liability had the broadest focus. It detailed how key legal doctrines had evolved over the preceding several decades. In the old days, the rules were commonsensical, having developed slowly through the common law for centuries. If two people voluntarily interacted with each other and a dispute arose, their contract, or lack thereof, determined what happened next. If someone willingly purchased a product and hurt himself using it, but the seller had made no promise of safety, courts would not take it upon themselves to require compensation. Tort law, as opposed to contract law, was mostly reserved for disputes among strangers with no advance arrangements and was limited to requiring compensation for obvious harms.
Starting around the late 1950s, however, innovative legal scholars (Huber dubbed them the “Founders”) came up with a different arrangement, where the threat of lawsuits would force changes in businesses’ behavior. They worked out elaborate theories rooted in economic principles and dressed them up with copious jargon. The new focus wasn’t on how the parties had agreed to handle the costs of future misfortunes, or even necessarily who was at fault for those misfortunes, but rather on how society theoretically should allocate such costs, in the interest of minimizing harms. Over the next few decades, courts went along, though with judges and juries often focused as much on handing money to sympathetic victims as with any kind of efficiency.
Much of the process entailed the “death of contract,” as courts found new ways to award damages that no agreement between the parties provided for. In some form, this approach stretched back to the early 1900s. Under the concept of “implied contract,” for instance, a company selling food for human consumption might be assumed to have promised that the food was fit for human consumption, unless an explicit warning was made to the contrary. But the changes of later decades were much more dramatic. “Implied” safety promises expanded to new types of products and grew far stronger. When companies beefed up the explicit language that their buyers agreed to, courts found these “flypaper” contracts less than binding, since they automatically adhered to all buyers and were not up for negotiation (never mind the consumer’s option of shopping elsewhere). Sometimes, courts would ignore contracts just because they deemed the terms unacceptable.
With contracts tossed aside, courts could write the rules themselves. They expanded liability for product defects (including “design defects” that existed in the eye of the beholder) and scrutinized product warning labels and found them insufficient. Even when extensive laws and regulations dictated standards for a product, courts might hold firms liable for failing to go beyond what the law required. Massive lawsuits alleging hard-to-prove harms from environmental pollution and workplace conditions, once frowned upon, were welcomed into courtrooms. “Punitive” damages and “pain and suffering” awards exploded, as did the use of “joint and several” liability. To hold defendants of means liable even more readily, notions of cause, negligence, fault, and the foreseeability of harm weakened, along with procedural rules such as statutes of limitation and restrictions on expert testimony.
Scientific testimony was a special focus of Huber’s, addressed in Liability and serving as the primary topic of Galileo’s Revenge—so-called because Galileo was the “patron saint of all heretics,” especially scientists willing to challenge a mainstream consensus, who are necessary to the scientific process but an awkward fit for the courtroom. Courts once hesitated to allow expert testimony and required experts to discuss the consensus in their fields, not their own views. Increasingly, the courthouse doors opened to unproven and fringe ideas, such as traumatically induced cancer and speculative statistical connections between prescription medications and birth defects.
Galileo’s Revenge popularized the term “junk science,” though Huber did not coin it. The book introduces the phrase as “the contemptuous label used by trial lawyers themselves.” A search of Google Books can unearth its use in several obscure documents from the 1980s.
The influences of these changes were many, and overwhelmingly bad, Huber argued; the only people clearly to benefit were, of course, the lawyers. The costs of litigation and insurance got passed on to consumers in the form of higher prices, a sort of invisible tax, or, at best, a lottery ticket that might pay out spectacularly if the customer gets hurt and sues. Placing responsibility on deep-pocketed corporations, even if they were only marginally at fault, eroded personal responsibility; keeping “dangerous” products off the market reduced choice, preventing individuals from striking their own trade-offs between price and safety. Innovation suffered because debuting a new product was risky, especially if, as in the case of many drugs and vaccines, the product had undesirable side effects on some people, even if they helped many others far more. Some insurance markets got thrown into turmoil. And perversely, the rules meant to make us safer seemed to fall especially hard on the professions already laboring to do just that, such as medical doctors.
Huber, however, acknowledged that the old rules could be cruel and that few would want to return to them in full. In their place, he suggested a “neocontract” system, under which courts would return their focus to contractual arrangements among parties, but such arrangements would become far more common, with, for example, airline customers and high school athletes buying insurance with explicit terms rather than suing if they got hurt, and with more of the money involved going to wounded individuals, not lawyers.
Today, two things especially stand out about Huber’s circa-1990 popular legal books, which were characteristic of his general-audience writing more generally, including articles for City Journal, Forbes, and other magazines. (His work on liability issues also included law review articles and coedited volumes.)
One is their irreverent style, which makes them quick reading, despite the complex academic concepts. Huber often had some off-kilter way of describing things. The legal revolution’s penchant for handing the bill to the wealthiest party “on the scene” of any given misfortune, Huber explained in Liability, reached its zenith “with the medical profession, which has a known propensity to meddle in accidents of every description.” Of course, it didn’t hurt that this topic lends itself to shocking anecdotes, such as the guy who hurled himself in front of a New York subway train, survived, and got a $650,000 settlement because the driver hadn’t stopped fast enough. “Peter was very funny and he liked using jokes,” Olson remembered, “and so we would sometimes negotiate and correct—does that go too far? Does that make light of something that people think is too heavy or serious of a subject?”
The second, closely related to the first, is that the books are not nearly as dense with case histories and on-the-other-hand evidence-weighing as one might expect, given that they summarize developments that unfolded in legal scholarship and courts over several decades. Call it the implied contract: Huber researched these topics and understands them extremely well; he will explain what has happened and the best way to address it in an amusing manner; and readers can either trust him or spend a few months doing the research themselves.
Huber’s critics took the second course. Some of these efforts culminated in mind-numbing law review articles that offered differing views of the history and lamented that Huber was gaining prominence, while allegedly superior work—such as theirs, presumably—held less sway.
The highest-profile spat dealt with just two numbers that Huber mentioned in the opening pages of Liability: that litigation directly costs Americans $80 billion a year; and that going from a study of what doctors spend reducing their litigation risks, a reasonable guess at the indirect costs could be another $300 billion. A 1990 Stanford Law Review article spent five pages agonizing over this one Huber paragraph—tracing the $80 billion statistic through the book’s citation to an article in Chief Executive magazine, which, it turned out, contained the figure in a mere off-the-cuff interview comment from Robert Malott, chair of the Business Roundtable’s product-liability task force. The essay also noted smaller numbers estimated by the RAND Corporation and attacked the $300 billion figure for its carefree extrapolation. The next year, though, Vice President Dan Quayle cited Huber’s numbers in a speech to the American Bar Association—and as the outcry dragged on, Huber simply pointed the Wall Street Journal to an even higher direct-cost estimate from the actuarial firm Tillinghast.
Ultimately, Huber won the policy argument. Not only was the vice president noting his work, but Huber was routinely speaking about the issues explored in his books and meeting with lawmakers; his old boss Sandra Day O’Connor was citing him, as was the prominent appeals court judge Alex Kozinski; and President George H. W. Bush issued an executive order in 1991 inspired by his arguments. In 1993, the Supreme Court reined in expert testimony in its Daubert ruling (the subject of another Huber book, 1997’s Judging Science, with Kenneth R. Foster). Even Bendectin—a morning-sickness drug driven from the market because of false claims that it caused birth defects, the focus of the Daubert lawsuit and a major character in Huber’s writings—returned to the market, rebranded as Diclegis. And over time, of course, the public and lawmakers came around to tort reform, with caps on punitive damages and other restrictions enacted to control the problem.
But to get a deeper sense of who Huber was, one might turn to Orwell’s Revenge. It was published in the early days of the Internet, in 1994, and despite echoing the title of Galileo’s Revenge, it was worlds away from the legal topics that readers had come to expect from Huber. The book encapsulates his fearlessness, unique genius, enthusiasm for technology and progress, and faith in the power of free people. Its provocative argument is that a core aspect of Orwell’s 1984—indeed, the linchpin of the fictional world that gave us lasting terms from “crimethink” to “Big Brother”—was wrong.
In Orwell’s dystopian novel, a totalitarian government controls its population in large part through “telescreens.” These devices display the regime’s propaganda, monitor the population’s activities, and serve as two-way communication devices, albeit with one-way control: government agents can single out and talk with individual citizens through the telescreen, and the citizens can respond. Thanks to the telescreen and its surveillance powers, previous tyrannies were “half-hearted and inefficient,” compared with the Party ruling Oceania.
But that doesn’t make sense, Huber says. It’s not just that totalitarian regimes struggle to develop advanced technologies, due to their suppression of objective reality and generally poor economic conditions—the Soviets did have Sputnik, after all. It’s more that the very nature of telescreen technology makes it harder for the government to suppress ideas and easier for dissidents to organize. Orwell’s failure to see this stemmed from an irrational distrust of technology, and especially of electronic communication, which was evident in many of his other writings, too. For Orwell, technology set us on a path toward centralization and oppression and emptiness, to boot. Orwell’s hatred of the free market and steadfast belief that capitalism was on its way out—he was a democratic socialist—further blinded him to the potential of the free exchange of information.
By itself, that’s a perceptive argument about the world of 1984 from the vantage point of 1994. But what makes Orwell’s Revenge so noteworthy is how Huber chose to make his case. Some chapters are straightforward nonfiction narratives, in which Huber explains Orwell’s mistakes and the real-life history of telecommunications technology, drawing on an extensive expertise in the field. But in the rest of the book, Huber writes fiction in the world of 1984 to show how telescreens would really play out in a place like Oceania, with “Eric Blair” (Orwell’s birth name) as the main character.
To write a story worthy of Orwell, Huber didn’t start from scratch but with a hard drive full of Orwell’s writings, which had taken many hours to scan in. Fortunately, Huber’s 486 computer was stocked with a “very fast word processor” (XyWrite III+) and “ample RAM” for his task (16 megabytes). From this textual database, Huber borrowed freely and modified as needed, from famous lines in 1984 itself to random bits of description from other pieces. Orwell himself had done something similar in constructing an “interview” with the long-deceased Jonathan Swift for the BBC in the 1940s. But the ability to search an author’s entire body of work with a few keystrokes was revolutionary, allowing Huber swiftly to pinpoint inconsistencies in Orwell’s worldview, track the development of his thinking, identify the many instances in which 1984 “borrowed” from essays he had previously written, and then construct an entire tale largely by combining fragments of his work. The result: a story that reads a lot like 1984 but reaches a very different conclusion.
“If Orwell could cut and paste fifteen years of Orwell to produce 1984, I could do the same for my book,” Huber explained in one nonfiction chapter. “Indeed, in matters of cutting and pasting I could almost certainly surpass Orwell, for my cut-and-paste tools were far superior to his.” In another, he noted that Orwell “expected books in our day to be written ‘by machinery,’ with ‘prefabricated phrases bolted together like the pieces of a child’s Meccano set.’ ” Huber was fulfilling prophecy.
Huber’s ultimate case for the telescreen thus appears in a fictional revolutionary document, the diary of Winston Smith, Orwell’s original protagonist. Smith lays out how telescreen technology—by its nature, given the way it performs—will undermine the Party. If telescreens can connect a government agent with any individual citizen he chooses, then every telescreen connects with every other, and the connections can be hacked to link citizens with one another. Telescreens would speed the flow of information, expose the Party’s misdeeds, and help the citizenry end them. “In a telescreened society, free markets will be irrepressible,” with technology supplying the information that guides the invisible hand; the “giant trusts and corporations that evolved in the early days of capitalism will not reappear” because “no such structures can survive” in the competitive telescreen world.
Orwell’s Revenge makes for thought-provoking reading today. It could be taught in high schools alongside the original; with another three decades’ worth of hindsight, the essay questions practically write themselves. Now that we really have telescreen technology, with videoconferencing abilities, constant connection with one another, and widespread surveillance cameras, has it made us more or less free? Mark Zuckerberg once sang the book’s praises, but how does the rise of extremely powerful private tech companies like Facebook and Google really affect Huber’s argument? What about China’s efforts to control the Internet and monitor the people?
Moving through Huber’s oeuvre is daunting. With every step, one can encounter an entirely new subject area. It might be the life of Sandra Day O’Connor, about which Huber wrote a children’s book. Other times, it’s the nexus of precision medicine and law. “Peter was omnivorously curious, and he was obsessed with getting things right,” Mills observed.
He picked up new topics quickly and could keep abreast of many disciplines simultaneously. While publishing books about legal liability and rewriting Orwell, for example, he stayed involved in the telecom debate. He wrote a sequel to his report in 1993 with John Thorne and Michael Kellogg, and their law firm represented several of the Baby Bells in a lawsuit seeking to loosen regulations. Again with Thorne and Kellogg, he wrote treatises on telecom and broadcast law. And 1997 saw Law and Disorder in Cyberspace, with Huber arguing for the abolition of the Federal Communications Commission and handling telecom disputes via common-law rules in the courts.
In 1999, Huber changed gears with Hard Green, a “conservative manifesto” on environmental matters. Huber embraced Teddy Roosevelt–style conservation of nature’s majesty but rejected the “soft green” priorities of the modern left-wing environmental movement, such as its obsession with hard-to-quantify risks from microscopic particles and its rejection of the energy demands of modern life. Huber followed this up with The Bottomless Well half a decade later, in which he and Mills provided a fascinating look at the science, technology, and economics of energy. The duo explained how much energy is necessarily “wasted” in the process of harnessing it for a particular use (“Only about 2 percent of the energy that starts out in an oil pool two miles under the Gulf of Mexico ends up propelling two hundred pounds of mom-and-the-kids two miles to the soccer field”); why we’ll never run out of energy (“The logic of the fuel-retrieving machines has advanced much faster than the fuels have retreated”); and how improvements in “energy efficiency” tend to open up new uses for energy and thus end with us using more of it, not less.
Mills recalls the experience of writing The Bottomless Well with Huber as one of back-and-forth revisions via e-mail, which worked, thanks to the trust they had in each other’s abilities and their willingness to accommodate each other’s preferences. “I wouldn’t say it was fun, because ‘fun’ is the wrong word, but it was energizing and interesting to do that with Peter, because he had such a good mind,” Mills said.
And in 2013 came Huber’s final book, The Cure in the Code, once again diving into a new field (the title appeared under City Journal’s imprint at Basic Books). Cure was about technologies that can address disease at the molecular level, with treatments tailored to each patient’s unique biological makeup, if need be—and the legal changes that would have to take place for such targeted approaches to succeed. Existing law was inadequate, Huber argued, developed with very different technologies in mind, typically standardized drugs given to large numbers of people.
These medical breakthroughs had other implications as well. Individuals would need greater rights and responsibilities to see their own biochemical data and, with their doctors’ advice, take chances on novel treatments. Health insurance would have to adapt to the flood of new treatments and patient-level data, Wall Street would be vital to finance technological breakthroughs, and, above all, the government would need to let progress happen, rather than clinging to visions of one-size-fits-all socialized medicine.
A few years later, with Paul Howard (then director of health policy at MI), Huber wrote Unlocking Precision Medicine, a 50-page monograph on the risks to innovation of trying to lower drug prices artificially. Drug development requires enormous up-front investment, and price controls make such investment less attractive.
Howard recalls a White House meeting with Huber, then–vice president Joe Biden, and former senator Tom Coburn, which he believes helped influence the 2016 cancer “moonshot” legislation. “My impression was we had an impact. And I think his influence would be even more long-lasting and wider if Peter really had time to continue to develop the ideas that he was articulating around precision medicine,” he said. “He’s really been a visionary—medicine continues to become ever more precise and targeted.”
Huber’s writing on medicine and drug development resonated in the fight against Covid-19, not only because he had warned in a 2009 City Journal essay that our halfhearted approach to vaccines had left us vulnerable but also because issues he often highlighted played a role in the solution, with regulations set aside to speed vaccine development and cutting-edge mRNA technology rising to the task. “I think he would have been completely aligned with that Operation Warp Speed effort,” Howard noted—“and then asked, well, why don’t we do that for everything?”
Huber died at 68 of fronto-temporal dementia, a disease that had tragically robbed him of his unparalleled abilities. He leaves behind a shifted policy landscape in several areas and a wide-ranging body of work that will stand the test of time. He has changed the way we understand risk, technology, and law, and the intersections among the three. His friends remember how he operated on a plane elevated above most other people; he was more than willing to tell them when they were wrong, yet remained friendly, approachable, and fundamentally decent.
“Everybody’s in awe of Peter Huber,” said Hazlett. “If you knew him, you were in awe of him.”
Top Photo: Huber, who died in 2021, developed a remarkable résumé: a summa cum laude Harvard Law graduate, he clerked for Supreme Court Justice Sandra Day O’Connor and became an expert in the law’s approach to high-tech risks—but before all this, he had earned a doctorate in mechanical engineering from MIT, where he was a professor at 23. (TOM WILLIAMS/CQ ROLL CALL/GETTY IMAGES)
