KOL146 | Interview of Williamson Evers on the Title-Transfer Theory of Contract

Kinsella on Liberty Podcast, Episode 146. Today I had a discussion with Williamson Evers, about his pathbreaking 1977 article Toward a Reformulation of the Law of Contracts, which was the first article ever published in the Journal of Libertarian Studies (Evers's other JLS articles). This article was relied on heavily by Rothbard, in ch. 19 of The Ethics of Liberty, "Property Rights and the Theory of Contracts." I discuss this piece in detail in my 2003 JLS article "A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability" (now in Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023)), and I also discuss it in my post Justice and Property Rights: Rothbard on Scarcity, Property, Contracts…. See also my post Thoughts on Walter Block on Voluntary Slavery, Alienability vs. Inalienability, Property and Contract, Rothbard and Evers. A fascinating interview. We discussed the genesis of this important theory and related matters. I appreciate greatly Dr. Evers taking time to discuss this matter with me. Note: The purpose of talking to Evers was to ask him questions about his own theory of contract. I sent him a copy of my article as a way to persuade him to talk with me, but my purpose was not to discuss my article with him. However, Evers seemed to think this was the reason for my call and he kept bringing the topic back to my article, when I really wanted to discuss his. In any event, as he was my guest, I did not try too hard to change the topic, and did end up getting a great deal of useful information from him about his original paper and the origin of these ideas. Grok shownotes: [00:00:01 - 00:17:54] Stephan Kinsella interviews Williamson Evers, a Stanford PhD and Hoover Institution research fellow, about the title-transfer theory of contract, a libertarian legal framework pioneered by Evers and Murray Rothbard. Evers recounts the theory’s genesis in the 1970s, stemming from late-night discussions with Rothbard, which led to his seminal 1977 article in the Journal of Libertarian Studies. The theory redefines contracts as transfers of property titles rather than enforceable promises, aligning with natural rights and private property principles. They discuss its revolutionary potential, its underappreciation, and its distinction from traditional legal systems that emphasize expectations or obligations to act, highlighting how all contractual obligations can be reduced to property title transfers. [00:17:55 - 00:34:55] The conversation delves into nuanced aspects of the theory, including future title transfers, bankruptcy, and inalienability. Evers addresses concerns about contracts involving non-existent or future assets, arguing they remain valid, though he opposes debtor’s prison and overly punitive measures like exorbitant performance bonds that could resemble slavery. He critiques the idea of “walking away” from contracts, as seen in mortgage defaults, and emphasizes the need for further research into issues like abandonment of hazardous property and the intersection of inalienability with punishment. Kinsella and Evers agree that the theory requires more development, citing contributions from scholars like Randy Barnett, and conclude with mutual appreciation for the discussion’s depth and its implications for libertarian legal philosophy. Transcript and Grok detailed shownotes below. Update: See also Thoughts on Walter Block on Voluntary Slavery, Alienability vs. Inalienability, Property and Contract, Rothbard and Evers (Jan. 9, 2022). See also KOL197 | Tom Woods Show: The Central Rothbard Contribution I Overlooked, and Why It Matters: The Rothbard-Evers Title-Transfer Theory of Contract. Related links: KOL225 | Reflections on the Theory of Contract (PFS 2017) KOL197 | Tom Woods Show: The Central Rothbard Contribution I Overlooked, and Why It Matters: The Rothbard-Evers Title-Transfer Theory of Contract KOL 029 | First Degree Liberty Interview: Argumentation Ethics and the Title-Transfer Theory of Contract KOL338 | Human Action Podcast Ep. 308 with Jeff Deist: Rothbard on Punishment, Property, and Contract Youtube: https://youtu.be/4tIlPMJeilA GROK DETAILED SHOWNOTES Detailed Segment Summary [00:00:01 - 00:06:42] Introduction and Genesis of the Title-Transfer Theory Kinsella introduces Evers, noting his 1977 article as the first in the Journal of Libertarian Studies. Evers shares his background, his friendship with Rothbard, and their late-night discussions that shaped the theory. The title-transfer theory emerged from Evers’ graduate work at Stanford, where he explored underdeveloped libertarian legal concepts, buildingrived from Rothbard’s initial ideas in 1974 and formalized in Evers’ 1977 article, later used in Rothbard’s Ethics of Liberty. [00:06:43 - 00:15:30] Core Principles and Philosophical Foundations The theory posits that contracts are transfers of property titles, not enforceable promises, aligning with the idea that all rights are property rights over scarce resources. Evers critiques utilitarian views of contracts based on expectations, advocating for a natural rights approach. Discussion touches on inalienability, emphasizing that self-ownership prevents selling oneself into slavery, distinguishing body rights from alienable property rights. Evers and Kinsella compare their philosophical leanings: Evers favors an Aristotelian-Thomist approach, while Kinsella is influenced by Hoppe’s argumentation ethics, though both see compatibility. [00:15:31 - 00:24:52] Future Obligations and Onerous Damages They explore contracts involving future obligations, such as delivering non-existent assets, which Evers considers valid but not justifying debtor’s prison. Evers raises the issue of performance bonds and whether exorbitant penalties (e.g., $1 trillion) could equate to slavery, suggesting this area needs further research. Kinsella suggests that extreme future title transfers could mimic slavery, potentially justifying bankruptcy-like provisions. Evers references Randy Barnett’s contributions and mentions Marcus Cole’s bankruptcy expertise as relevant to the theory. [00:24:53 - 00:34:55] Bankruptcy, Abandonment, and Inalienability in Punishment Evers expresses discomfort with bankruptcy’s “fresh start” concept, arguing that debts remain owed, and criticizes advice to “walk away” from mortgages during the financial crisis. On abandonment, Evers argues that abandoning hazardous property (e.g., polluted sites) doesn’t absolve responsibility, comparing it to a bullet or landmine causing harm later. They discuss how punishment (e.g., restitution or imprisonment) intersects with inalienability, as compelling action may conflict with the principle that specific performance cannot be enforced. The episode concludes with mutual appreciation and acknowledgment that the title-transfer theory remains underexplored, with room for further scholarly work. TRANSCRIPT Interview of Williamson Evers on the Title-Transfer Theory of Contract Stephan Kinsella and Williamson Evers August 5, 2014 00:00:01 STEPHAN KINSELLA: Okay, this is Stephan 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, in a number of years, the title-transfer theory of contract.  And Mr. Evers, how are you doing? 00:00:19 WILLIAMSON EVERS: 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. 00:01:01 STEPHAN KINSELLA: 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 every published in the JLS. 00:01:13 WILLIAMSON EVERS: That’s right.  It was the lead article in Volume 1 No. 1. 00:01:19 STEPHAN KINSELLA: Yes, and you’ve had several others. 00:01:20 WILLIAMSON EVERS: Yes, and I was also the managing editor for awhile. 00:01:24 STEPHAN KINSELLA: 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 to 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 in legal and libertarian theory. 00:01:54 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 awhile 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 if Liberty chapter, which relies heavily upon your 1977 article.  Is that basically what happened?  Do I have that right? 00:02:26 WILLIAMSON EVERS: I think that’s basically right.  So this was a long time ago.  So you and I are talking in 2014. 00:02:37 STEPHAN KINSELLA: Correct. 00:02:37 WILLIAMSON EVERS: I specialize in kindergarten through high school education policy these days, and I’m not writing in this area anymore. 00:02:49 STEPHAN KINSELLA: I understand. 00:02:50