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)