Wednesday, November 2, 2011

The Perverse (Or Not) Law

Scott Greenfield says, almost, that he'd never pay for a book by a law professor.  I do from time to time. 
This time, though, I didn't have to.  I got an invitation to review NYU law prof Leo Katz's new book, Why the Law Is So Perverse, and I jumped on it.  Yes, please send me a free copy to review, I said.  I really liked his earlier Bad Acts and Guilty Minds:Conundrums of the Criminal Law which I thought both interesting and suggestive.  I was excited.
Except maybe I'm just too old now.  Or not old enough.  Maybe I've spent too much time in the trenches where real juries and real judges make real decisions about real people who did (or didn't do) real things.  Or maybe I'm just weird.
The problem isn't that I think Katz is wrong about what he concludes.  I think he's mostly right.  And it's certainly not that I think he's uninteresting.  Rather, it's that I keep wanting to argue with him about his examples.
Let me back up and explain what I'm talking about.  To do that, I have to begin with a very quick (really, trust me on this) peek at what Why the Law Is So Perverse is about.
Katz talks about four peculiarities in the law.
  • It forbids some of what he calls "win-win" transactions such as selling bodily organs;
  • It's filled with loopholes, and lawyers aren't condemned for exploiting them;
  • Legal decisions are mostly either/or- guilty or not, liable or not; and
  • We don't make criminal lots of stuff we condemn.
These are all, he says, perverse.  Why should the law be as it is when these things all make so little sense?  His answer, addressed with remarkable clarity and not a little charm in his book, is that they are all, ultimately, logically unavoidable in the real world.
He may or may not be right.  There's considerable logic to what he says.  But logic only takes you so far in getting to what's right.
As every first-year philosophy student quickly learns:  If your premises are false, the conclusions that follow from them are worthless.  If those conclusions happen to be correct, it's mere chance.  Take the standard Logic 101 syllogism.
All men are mortal.
Socrates is a man.
Therefore, Socrates is mortal.
(For obvious reasons, philosophers like to talk about Socrates.)
Now take the equally logical but worthless syllogism.
All mortals are men.
Elephants are mortal.
Therefore, elephants are men.
Well, no.  They're not.  The logic is unassailable.  The conclusion is nonsense because the major premise (All mortals are men) is false.
Back to Katz.  Here's the thing.  The things he finds "perverse" and therefore in need of justification don't strike me that way at all.  To find them so requires a mind set I don't have.  Again, maybe I once would have.  Maybe not.  But if you don't find the underlying perversity. . . .
And then there's the problem of the examples.
Start with one that is, coincidentally, offered in his guest post from this mornin at The Volokh Conspiracy where he's (and yes, this is unfair) shilling for his book this week.  The issue is why the law mostly demands either/or results.  The answer he offers is that the alternative leads to such untenable positions as that it's better for a physician to keep 1,000 brain dead people on life support with the understanding that they will never be other than brain dead than it is for that physician to maintain the life and health of an altogether hale and hearty person.  Since we won't buy that, it follows that there must be an absolute dividing line in the law between life and death (though it doesn't much matter where that line is).
Katz gets to that conclusion by observing that we'd all agree it's better to keep two slightly defective (some minor organ doesn't work perfectly) people in that condition than to keep one not at all defective person in perfect health.  The rest is just a reductio ad absurdum.  Which is fine, except that we don't all agree with the underlying premise.
We all agree, he says, that coercion by threat of burglary is both worse and more coercive than by threat of reckless driving through one's neighborhood.  Follow it out and you get the same reductio.  But we don't all agree.
The either/or instances are no different than the others.  Take loopholes.
We all agree, he says, that it's wrong to hide assets in bankruptcy.  But we all also agree that it's fine to move to Florida, where you can keep more of your assets when you file for bankruptcy than you can in some other states, and then file.  So even though loopholes are ultimately inescapable, they're also just fine and there's no moral or ethical problem with exploiting them.  Except, of course, we don't all agree.
Undercriminalization.  We all agree, he says, that disclosing long-ago private misconduct in revenge for a personal slight is wrong but shouldn't lead to either criminal or civil liability.  So the fact that the law doesn't punish that is exactly as it should be (and although he's kind of incoherent on this point) as it has to be.  Except that (1) the law does sometimes punish that activity, and (2) once again, we don't all agree.

All of these are examples or counter-examples.  But he builds his case in large part inductively from those examples.  And if they're false, well then, he's got little besides conclusions. 
Frankly, I think Katz is mostly right about the conclusions.  It would be incoherent for the law to deal with these supposed perversities ("supposed" is really his point: The law isn't perverse at all, or at least not in these ways) in any other way.  But I simply don't share his intuitions about what people think; in fact, I think he's mostly wrong about that stuff.  The consequence is that my copy of the book is now filled with sticky notes and pen scratchings that say "NO!" or "I disagree," or "Nonsense," or the like.  And I kept tossing the book aside in disgust because he was so often wrong about the examples even though the conclusions seemed mostly (not always, but mostly) correct.
See, after all the flawed examples and after all the faulty premises, Katz actually has a theoretical model that makes some sense.
When you have to make up decisional rules about dealing with things that have multiple characteristics and criteria, things like real people with real problems in the real world, you're going to end up with a system that approximates and leaves gaps and is kind of arbitrary and makes some people unhappy muchof the time and almost everyone unhappy some of the time.  Which points toward that basic rule of legal practice, the proper answer to every legal question:
It depends.
Katz gets there through social choice theory which mostly applies even when his examples don't work.  That's not bad.  And it's good to have an background explanation.
OK, but what does any of this have to do with the actual practice of law?  I mean, I'm interested in legal theory and jurisprudence for their own sake.  But for all the hanging out I do with academics and at universities (I'm actually in a university library as I'm typing this paragraph), I'm neither a philosopher nor an etherealist law professor.  I'm a practicing lawyer.  I represent real people charged with or convicted of real crimes - often facing death in prison one way or another.  Does Katz help me?  In practical terms, for the most part, no.
Oh, in some absolute sense he does.  After all, there's no such thing as worthless experience.  Reading, studying, thinking carefully about anything is valuable. It makes the mind nimble.  It gives extra stuff to draw on for examples and counter-examples.  I'm a better lawyer for having spent several years immersed in the study of medieval and renaissance English literature in general and The Faerie Queene in particular - even though I don't know just how or why.
So I'm glad I read it.
But if you want tips on cross-examination or on how to use the business record exception or on what the hell to make of the Rule in Shelly's Case (and to tell you the truth, I have no idea what that rule is - I lost it within five minutes of the bar exam, if I even had it then); if you want to know what's wrong with cross-racial eyewitness identification or how to explain reasonable doubt; if you're trying to explain to the client why 8 years in the slammer is or isn't a good deal that he should or shouldn't take, Why the Law Is So Perverse isn't what you need.
Which probably won't surprise anyone.  Least of all, Leo Katz.


  1. Jay Wexler emailed me and told me he's sending me a copy of his new book. I asked him if he could send me a copy of Leo Katz's book too, but now I'm thinking I should tell him never mind.

  2. And here I thought you were going to tell me that you did, too, pay for books by law professors.

  3. I reviewed Katz's book for the Boston Globe.

    Spooky, isn't it?