Why the Law Is So Perverse
Author: Leo Katz
Chicago: University of Chicago Press, 2011. 239p.
Reviewer: Kimberly Kessler Ferzan | May 2012
Give Leo Katz a riddle, and he will wrap it in a mystery and shroud it in an enigma. You get more questions than answers from Katz. It therefore comes as a delightful surprise that in Why the Law is So Perverse, Katz aims not just to identify puzzles but to solve them as well, specifically, to cut the Gordian knot of legal perversities. His tool, quite surprisingly, is social choice theory.
The book’s breadth is stunning. Katz divides the book into four puzzles: Why does the law spurn win-win transactions, why is the law so full of loopholes, why is the law so either/or, and why don’t we punish all that we condemn. In looking at these puzzles, Katz’s analysis ranges from contracts, to emission rights, to criminal law, to property, to tort, to moral theory. And, one learns quite a bit about voting along the way. For anyone reading this book, there will likely be as many issues that are new as there are those that are familiar.
The book’s approach is to take a range of what appear to be diverse puzzles, show a unifying theme, and then solve the puzzles with a new analytical tool. The book’s strength, therefore, is its reach – that it resolves myriad doctrinal quandaries. And the book’s weakness is that that reach occasionally exceeds its grasp. That is, the reader might doubt that Katz’s theoretical tool can extend to all the problems presented. You know the saying, if you have a hammer, everything looks like a nail. And Katz loves his new social choice hammer.
To my mind, the strongest part of the book is the first part: Why does the law spurn win-win transactions. This part is both admirably clear and well written as well as seeming to have extraordinary explanatory force for the puzzles presented. The law, Katz observes, seems to forbid transactions that are win-win for the two parties, and even when the law doesn’t forbid them, these transactions produce unease. He considers a range of examples. Take two. Why does it seem wrong that companies can trade emission rights? Why can’t employees assume further risks for greater pay if they so choose?
To explain these puzzles, Katz introduces a parable of a triage cycle. Al is injured badly and will lose two legs. Chloe will only lose her index finger. An emergency room doctor should therefore opt to treat Al before Chloe. Al, however, loves Chloe and Chloe is a passionate (amateur) pianist who will be devastated without her finger. So, Al wants to trade his place in line for Chloe. Ah, the things we do for love. But then, Bea appears and Bea is about to lose one of her legs. So, now the doctor has a problem. According to injuries, it is Al, then Bea, then Chloe. But Al wants to trade with Chloe. But, says Bea, the doctor has to prefer me to her. How, asks Katz, do we break this cycle?
Katz begins by giving us an analytical framework: The basic priority argument ranks injuries in terms of severity (A, then B, then C). The win-win argument allows A to trade with C because they are both better off, and B is no worse off, since she wouldn’t be treated first anyway (C, then B, then A). The “regained priority argument” then allows B to claim that she ought to have priority over C. (B, then C, then A). Bea certainly seems to have a case that Chloe ought not to come before her, but how is that so?
Katz uses this framework in two ways to diagnose the reason the law doesn’t always opt for win-win. First, notes Katz, sometimes the win-win transaction trades an interest for a preference. As Katz notes, “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.” That is, he explains, a friend may need money for the dentist but prefer money for a cruise, but that doesn’t mean that your friend is entitled to have you give him money for the cruise. So “Al cannot transmute his claim for help with his two-leg injury into a claim for help for Chloe’s finger.” In other words, sometimes win-win loses.
The second observation is that many of the cases he studies contain a hidden spoiler, a hidden Bea. With respect to emissions trades, Bea is the town. He summarizes, “Al Corporation, having acquired priority over Bea Town citizens for the sake of producing lifesaving medication, is now trying to alienate it to someone who will merely use it to produce bungee-jumping equipment [Chloe Corporation]. What a waste of the town’s sacrifice!”
This is just one of many applications. Katz extends this framework to Sen’s paradox that “granting people rights does not seem to mix with the win-win principle.” And, Katz argues, a constructive way to view Kaplow and Shavell’s critique of fairness theories is to understand that they start with the view that win-win is the foundational argument.
I found this section extraordinarily careful and well argued. Moreover, the analytical tools it provides are invaluable. Days after finishing the book, I was at a conference, and as I worked through a paper, I recognized: “Wait this is a win-win! Where is the hidden spoiler?” And, I found her.
For other portions of the book, however, I found that Katz’s proffered explanation was less convincing. One such example is that application of social choice theory and the relevance of irrelevant alternatives to the legal puzzle of loopholing.
The puzzle Katz presents is how we should understand loopholing – what is its cause and how should the legal system react? Katz dismisses the rules/standards gap explanation given by Fred Schauer, as well as Larry Alexander and Emily Sherwin. This is the view that legal rules will always be over and under inclusive, and that when a rule is under inclusive vis-à-vis its underlying justification, you get a gap – a loophole. The actor exploits the gap between the reason for having the rule and the terms of the rule itself. This explanation, claims Katz, does not explain cases where there is no gap, such as the flagrant loophole exploitation of Jews who have gentiles perform actions they themselves are forbidden to do on Shabbat. In these cases, it is hard to see a gap between the rule that God commands and the underlying justification for the rule. The buck, it seems, just stops with God.
Katz’s alternative explanation takes the reader through various issues with voting rules, culminating with Arrow’s theorem that seemingly irrelevant alternatives can make a difference to the rank ordering of preferences. If you didn’t know this already, you learn quite a bit about the conundrums of voting, including that a patron who wishes to order the steak (on a menu that provides steak, chicken, and fish) may switch to chicken upon hearing that the fish is unavailable! Katz gives an extraordinarily helpful and user friendly guide to why this is the case. The bottom line is that whenever you have multicriterial rankings, an alternative that appears to be irrelevant can actually affect the rank ordering.
Katz notes that because “all plausible voting rules are doomed” to have loopholes, we will have loopholes with law, which we should just think of as multicriterial rankings. Arrow’s theorem, that seemingly irrelevant alternatives affect rank ordering (such as the switch from steak to chicken), is employed to show that loopholes are the product of these relevant, irrelevant alternatives. Katz never returns to the Shabbat “observer” but rather takes us through other doctrines, including how individuals are sometimes permitted to contrive their defenses. Katz argues that when one removes her own option of safe retreat, which the law prefers to the defender’s killing the attacker, then the law must choose between the victim or the defendant being killed. The defendant is exploiting the retreat option by removing it from the realm of alternatives, and by doing this, changes the nature of the law’s preferences. As he summarizes, “how two things are ranked—namely the option to allow oneself to be injured and the option of killing one’s attacker – now necessarily depends on the presence or absence of a third ‘irrelevant’ alternative, namely the option of retreat.” Katz concludes that just as it is impossible to rid voting of the relevance of the irrelevant alternative, it is impossible to rid the law of loopholes when it is choosing among different options with multiple criteria.
I am less persuaded by the contrived defenses application because I find it hard to believe that the criminal law lacks the resources to resolve the criteria by a single metric. It isn’t like Katz’s example of figure skaters, where one can admire different skaters on different aspects of the sport. Retreat isn’t an alternative unrelated to the aggressor or defender’s life. So what we need to do is to understand how retreat relates to the moral principles, and then ask whether someone who contrives her defense has meaningfully changed the moral terrain. Analyzing the defender’s loopholing is thus part and parcel of understanding her entitlement to the defense. She isn’t simply eliminating an alternative—like pulling a Tanya Harding—she is altering how we understand the alternatives that she has. That is, to return to the approaches of Schauer and Alexander and Sherwin, the retreat rule is part of a more general moral theory about how the innocent defender must still only kill when necessary. By circumventing the reach of the rule, by finding a way to kill when it isn’t necessary, the defender is evading the rule’s underlying justification. So, even if the gap between the rule and the justification is ineliminable, the problem with rules better explains the problem.
That is, at the end of the day, I don’t find fault with social choice theory or with Katz’s articulation of it. Rather, I question whether every case Katz cites is actually an instantiation of the sort of problem that social choice theory will enlighten. So, while I admire the ambition of solving a cornucopia of puzzles in one fell swoop, I think there are times when the problem isn’t actually of the sort that Katz claims that it is. If retreat isn’t a problem of multicriterial decision making then Arrow’s theorem about multicriterial decision making cannot illuminate it.
I won’t explore all of the legal perversities addressed by Katz, because, quite frankly, you should read the book. It isn’t the sort of book that one reads because one necessarily has a particular problem in mind and wants to research what others have said. Rather, it is a book you read because you gain new intellectual tools for projects going forward.
Finally, and perhaps most notably, this is a great book for an upper level seminar. First, it covers a wide range of doctrines and will have a little bit for everyone. Second, it is very clear and accessible. Katz is very patient with his readers and walks them step by step through the more complicated aspects of his arguments. And, finally, it is fun. Katz brings the same good natured, inventive, ingenious joy to the answers that he has always brought to the questions.
Kimberly Kessler Ferzan, Professor of Law, Rutgers University, School of Law — Camden