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Why the Law Is So Perverse by Leo Katz
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Why the Law Is So Perverse

by Leo Katz

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Why the Law is So Perverse
Leo Katz
Thursday, April 26, 2012 8:12 PM

Why do I read books like this? I thought the title was interesting. Leo Katz, a law professor, explains some paradoxes in law with the theory of social choice, an idea developed from analysis of voting systems. He thinks law is a multicriterial decision system, and claims that once more than two choices are involved, it is impossible to have a system that is consistent, respects the will of the majority, does not respond to irrelevant alternatives, and is not hypersensitive to small changes in voting preferences. He explores the problem with loopholes; why they exist and why they cannot be made to go away. Why is the law either-or; there are no in between decisions? And why is much conduct that is objectionable is not criminal under the law - ingratitude, for instance? Why cannot a prisoner volunteer for torture to shorten a prison sentence (a win for society because less money is spent on prison and for the prisoner because his sentance is over sooner)? The arguments are sometimes convoluted, and it is not certain that the multicriterial decision making is always responsible, but the book illuminated a good deal of the nature of the law.

“Volenti non fit inuria - consent cures the wrong”
“The fact that your friend has a claim to something you could give him, on the one hand, and a strong desire for something else you could give him, on the other, does not give him a strong claim to that other thing as well.”
“A cotton broker approached him, (MacArthur’s father) desparately hoping to secure the temporary but illegal use of Army transport facilities. The bribe was to be a large sum of cash, which was left in MacArthur’s desk, and a night with an exquisite southern girl. Wiring Washington the details, MacArthur concluded: ‘I am depositing the money with the United States Treasury and request immediate relief from this command. They are getting close to my price.”
“Social choice theorists like to distinguish between two types of voting manipulation. The first they call agenda manipulation, and its archetypical example is the killer amendment. The second they call strategic, or counterpreferential voting.”
“…by the sociologist Eviatar Zerubavel, in his aptly titled book The Fine Line. At the root of either/or, he argues, is our irrational dread of everything that lives on a boundary…”
“…the paradoxical claim made by the infamous Sorites argument that all concepts have a sharp boundary - that one hair makes the difference between being bald and not bald…” ( )
  neurodrew | Apr 26, 2012 |
In Why the Law Is So Perverse, Leo Katz, Frank Carano Professor of Law at the University of Pennsylvania Law School, examines features of the legal system which seem to not make sense on some level.

I admit that I offered to read and review the book based on the title. I'm not sure that Professor Katz makes the case that the law is perverse. He does show the complexity and the complexity in human decision-making in the legal system.

The better title would be the Impact of Multi-criterial Decision Making in Legal Analysis. I suppose that title is not quite as catchy.

That title is more closely aligned with the style of writing and content. For me, the book was like stepping back into law school and analyzing choices and consequences of actions in the context of legal decision making. That means there are some interesting puzzles and thought exercises. It also means that it's a bit disconnected from the real world.

Two disclosures. First, the publisher supplied me with a free copy of the book. Second, some of the statements in the book left me bitter with the way Professor Katz characterized the legal profession. The most notable was:
The exploitation of loopholes is in fact the lawyer’ daily bread, which makes it all the stranger that both lawyers and non‐lawyers profess such outrage about it. Actually, the point should probably be put the other way around: What is strange is that, given the contempt in which loophole exploitation is held, it is nevertheless central to legal practice. What can a profession say for itself whose main preoccupation consists of this kind of activity?
I don't know any lawyers who get excited looking for loopholes, or who would even call their daily practice exploiting loopholes. On the criminal side, it's all about the evidence and culpability. On the business side it's about trying to figure out what the government will allow and not allow. The law is complex and the decision-making is difficult, but that doesn't make it perverse and doesn't make the lawyer's job one of merely searching for loopholes.

In a whimsical example of a loophole, Professor Katz uses children cutting in line. According to playground law, line-cutting requires the consent of the party who will be immediately behind the cutter. So you can let someone cut into the line in front of you, but no backsies. The loophole is to allow the cut in front, then let the consenting party cut in front of you. A-Ha! A tremendous loophole. Professor Katz even parades a cartoon involving a playground lawyer to illustrate the point.

Where Professor Katz sees a loophole, I see a flawed law. It should either be cutting allowed or no cutting allowed. By allowing only one type of cutting, the law creates a distortion in behavior.

The law can be changed and flawed laws should be changed.

The central thesis is that the transitive law of math that we learned in elementary school (A>B and B>C, so A>C) only works with a single criteria and can fail once there are multiple factors in the decision-making: multi-criterial decision-making.

Besides loopholes, Professor Katz focuses on a few other "perversities." One involves the law’s refusal to allow people to consent to certain things - prohibiting people from selling a kidney to a willing buyer or allowing criminals to choose torture instead of a long prison sentence. Legal decisions are essentially made in an either/or fashion—guilty or not guilty—but does not allow in-between verdicts. Legal systems don't punish certain kinds of highly immoral conduct while prosecuting other far less pernicious behaviors.

Professor Katz contends, sometimes persuasively and at other times less so, that these thorny issues arise from their multicriterial’ character. If you miss law school, Why the Law Is So Perverse will take you back through some of the best and some worst features of law school.

If you're interested, you can read an excerpt from Why the Law Is So Perverse (.pdf) ( )
  dougcornelius | Apr 11, 2012 |
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Amazon.com Product Description (ISBN 0226426033, Hardcover)

Conundrums, puzzles, and perversities: these are Leo Katz’s stock-in-trade, and in Why the Law Is So Perverse, he focuses on four fundamental features of our legal system, all of which seem to not make sense on some level and to demand explanation. First, legal decisions are essentially made in an either/or fashion—guilty or not guilty, liable or not liable, either it’s a contract or it’s not—but reality is rarely as clear-cut. Why aren’t there any in-between verdicts? Second, the law is full of loopholes. No one seems to like them, but somehow they cannot be made to disappear. Why? Third, legal systems are loath to punish certain kinds of highly immoral conduct while prosecuting other far less pernicious behaviors. What makes a villainy a felony? Finally, why does the law often prohibit what are sometimes called win-win transactions, such as organ sales or surrogacy contracts?

           

Katz asserts that these perversions arise out of a cluster of logical difficulties related to multicriterial decision making. The discovery of these difficulties dates back to Condorcet’s eighteenth-century exploration of voting rules, which marked the beginning of what we know today as social choice theory. Condorcet’s voting cycles, Arrow’s Theorem, Sen’s Libertarian Paradox—every seeming perversity of the law turns out to be the counterpart of one of the many voting paradoxes that lie at the heart of social choice. Katz’s lucid explanations and apt examples show why they resist any easy resolutions.

           

The New York Times Book Review called Katz’s first book “a fascinating romp through the philosophical side of the law.” Why the Law Is So Perverse is sure to provide its readers a similar experience.

 

(retrieved from Amazon Thu, 12 Mar 2015 18:22:35 -0400)

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