Why the Law Is So Perverse
Why the Law Is So Perverse
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.
“Katz wisely peppers his puzzles with humor, jokes, mini-plays, and thoughtful warnings of difficult passages to come (along with welcome invitations to skip ahead) that temper this otherwise demanding volume and make following the twists and turns of the argument well worth the challenge. And for those for whom puzzling is a pleasure in itself, the book will be a feast.”
Jay Wexler | Boston Globe
“Mr. Katz unravels the logical tangles with clarity, humor and a light touch—a testament to the quality of his writing.”
Jonathan V. Last | Wall Street Journal
“Leo Katz is a creative and original thinker across the disciplines of law, economics, and philosophy, and this excellent work should be of interest to anyone in pursuit of new ideas.”
Tyler Cowen, George Mason University
“This is a tour de force of scholarship, demonstrating how disparate and often annoying elements of law have their roots in social choice theory. In most fields the best and most impressive scholarship demonstrates how seemingly independent phenomena have their roots in the same theoretical and empirical sources, and that is exactly what Katz does in Why the Law Is So Perverse. Katz shows that the impossibility of combining divergent views of the social good into a single normative order produces the intellectual tectonic stresses that lead to many of the law’s surface anomalies. For anyone who enjoys thinking deeply about law this book is highly recommended.”
Matthew Spitzer, University of Texas School of Law
“Leo Katz is the master of the difficult question. He draws us in to a puzzle and examines it from many angles until we feel that we understand not just the puzzle, but the world around us. One of the wonders of this excellent book, Why the Law is so Perverse, is that it dares and then trusts the reader to keep three balls in the air at once. It is that third ball that makes this book so perfect.”
Saul Levmore, University of Chicago Law School
“[E]ntertaining [and] enlightening. . . . [Katz’s] conclusions . . . are argued with a good lawyerly wit, verve, and mastery of the material, and the book is written in a style that nonexperts will appreciate. . . . It is rare that his reviewer is willing to call an academic book ‘delightful,’ but this one deserves it. It is just plain fun. Highly recommended.”
M. Berheide, Berea College | Choice
Table of Contents
Part I. Why Does the Law Spurn Win-Win Transactions?
1. Things We Can’t Consent to, Though No One Knows Why
2. A Parable
4. The Social Choice Connection
Part II. Why Is the Law So Full of Loopholes?
5. The Irresistible Wrong Answer
6. What Is Wrong with the Irresistible Answer?
7. The Voting Analogy
8. Turning the Analogy into an Identity
9. Intentional Fouls
Part III. Why Is the Law So Either/Or?
10. The Proverbial Rigidity of the Law
11. Line Drawing as a Matter of Life and Death
Part IV. Why Don’t We Punish All We Condemn?
12. The Undercriminalization Problem
13. Multicriterial Ranking and the Undercriminalization Problem