Why the Law Is So Perverse.
Article Type:
Book review
Books (Book reviews)
Miller, Nelson P.
Pub Date:
Name: Journal of Markets & Morality Publisher: Acton Institute Audience: Academic Format: Magazine/Journal Subject: Business, general; Philosophy and religion Copyright: COPYRIGHT 2012 Acton Institute ISSN: 1098-1217
Date: Spring, 2012 Source Volume: 15 Source Issue: 1
NamedWork: Why the Law Is So Perverse (Nonfiction work)
Reviewee: Katz, Leo

Accession Number:
Full Text:
Why the Law Is So Perverse

Leo Katz

Chicago, Illinois: University of Chicago Press, 2011 (239 pages)

In Why the Law Is So Perverse, University of Pennsylvania Law School Professor Leo Katz uses social-choice theory to analyze anomalies he attributes to the common law. His erudite work entertains. Its premise, though, is limited in a way that the lay reader might not appreciate. Law, conceived broadly, is quite different from Professor Katz's thesis.

Consider first Katz's thesis. Social-choice theory developed out of studies of voting. Social-choice theory reveals elections and other social choices as complex in a manner about which we are unaware or to which we are unwilling to admit. Social-choice theory identifies that complexity not so much as historical or political as logical. It shows, for instance, that popular choice is not transitive. Just because the electorate prefers A to B and B to C does not mean that it will prefer A to C. It might instead prefer C to A.

Katz uses social-choice theory to evaluate four anomalies he attributes to the common law. First, the law prohibits what Professor Katz identifies as win-win transactions such as prostitution, the sale of one's own body parts, and voluntary torture as a substitute for incarceration. Second, the law has loopholes; for example, forum shopping, tax shelters, asset protection through corporate forms, and obstruction of justice through electronic-document destruction. Third, the law has a binary guilty-not guilty, liable-not liable character, when graduated compromise outcomes would be better. Fourth, the law under-criminalizes or otherwise under-condemns conduct properly worth condemnation.

Katz attributes those anomalies to the impossibility of logical treatment, demonstrated by social-choice theory. Space limits this review to just one example. Social-choice theory shows the postulated win-win transactions of prostitution to involve a hidden third interest proving the loss. The value of Katz's work certainly lies in his using social-choice theory largely to justify the law as it is.

That point highlights the limit and likely misapprehension of Why the Law Is So Perverse. Law is not to any substantial degree perverse. Katz has the wrong view of law practice when he asserts on page 63 that "[t]he exploitation of loopholes is in fact the lawyer's daily bread" and questions at the same place, "What can a profession whose main preoccupation consists of this kind of activity say for itself?"

We can say simply that the good professor is wrong about law and its practice. The law practiced every day by American lawyers is instead sound, accessible, and hugely important to American productivity. Lawyers draw on that sound law for humane and valuable work.

Consider the evidence. Public defenders coach clients to admit a basic humanity in a first step toward restoring a wayward life. Divorce lawyers help make two functioning households out of one dysfunctional one. Estate planners help with the orderly transfer of wealth across generations. Personal-injury lawyers help accident victims recover wealth pooled to internalize and distribute the predictable cost of unpredictably realized risk. Transactional lawyers help structure, govern, and protect profitable relationships. Immigration lawyers promote the orderly migration of labor. Lawyers help clients do sound and sensible things, using law that accounts for history, politics, science, philosophy, economics, theology, and logic. Ask a struggling Italy the economic value of a sound and accessible means to enforce civil obligations. (See Svetozar Pejovich, Law, Informal Rules, and Economic Performance--The Case for Common Law [Edward Elgar, 2008].)

Law is not always sound, although legislated law produces far more anomalies than the accretive common law that Katz addresses. Law's enforcement can seem arbitrary in heavily regulated fields or heavily patrolled neighborhoods. Law is not our savior, although it points mercifully in salvation's direction. Yet these are not the legitimate problems that Katz addresses.

A law scholar's work is to make law sound and demonstrate law's soundness rather than represent law as perverse. Law teachers should represent law practice as a valuable calling rather than as exploitative work.

At Harvard University's 1886 ceremony awarding Justice Thomas Cooley an honorary law degree on the occasion of its 250th anniversary, Justice Cooley represented law teaching as "inculcating the nobility of the lawyer's calling, which should be at once the effective instrument of justice and of true benevolence." Justice Cooley only tried "to make the fact obvious that, aside from physical needs, the State is most of all dependent for the happiness of its people upon a clear recognition and ready acceptance of the rules which determine and protect our rights." Justice Cooley cautioned that "the sense of security upon which public content not less than public liberty depends must spring mainly from a steady administration of just laws," making the profession's "reason for being ... the effective aid it renders to justice, and ... the sense it gives of public security through its steady support of public order." "These are commonplaces," Justice Cooley finished, "but the strength of law lies in its commonplace character; and it becomes feeble and untrustworthy when it expresses something different from the common thoughts of men" (from A Record of the Commemoration, November Fifth to Eighth, 1886, on the Two Hundred and Fiftieth Anniversary of the Founding of Harvard College, 92-96 [John N. Wilson and Son, 1887], 92-96).

We should only wish that Professor Katz's book were titled Explaining Why the Law Is Not So Perverse.

--Nelson P. Miller (e-mail: millern@cooley.edu)

Thomas M. Cooley Law School, Grand Rapids, Michigan
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