Law and disorder

Why some statutes seem twisted (but really aren’t) and what can be done to reform inequities in the judicial system

September 18, 2011|By Jay Wexler

(Mark Pernice for the boston…)

WHY THE LAW IS SO PERVERSE By Leo Katz

University of Chicago, 239 pp., $35

THE COLLAPSE OF AMERICAN CRIMINAL JUSTICE

By William J. Stuntz

Belknap, 413 pp., $35

Americans love puzzles! From the Sunday crossword to “Wheel of Fortune’’ to “Revenge of Killer Sudoku, Vol. 4,’’ they are everywhere. One wonders whether our love of these things helps explain why so many Americans apply to law school every year. Probably not (explaining that phenomenon is itself a puzzle), but it is certainly true that solving complicated puzzles is part of being a good lawyer. Law schools are not entirely foolish to base their admissions decisions at least partially on a test - the LSAT - that is chock full of infuriating logic problems that require test takers to figure out, among other things, whether Abigail, who is allergic to shrimp, loganberries, and maple syrup, can sit next to Bartholomew, who enjoys horseback riding, collecting French newspapers, and skeet shooting off the Lido Deck. (Answer: Only on Tuesdays.)

One of the legal profession’s master puzzlers is Leo Katz, longtime professor at the University of Pennsylvania Law School. Katz, whose previous two books have plumbed the “conundrums of the criminal law’’ (that’s actually the subtitle of one of the books), is back with “Why the Law Is So Perverse,’’ in which he picks some seemingly perverse phenomena in the law and explains why they are in fact not so perverse, but not for the reasons you might think.

What are Katz’s perversities of choice? One involves the law’s refusal to allow people to consent to certain things - why do we prohibit people from selling a kidney to a willing buyer, for example, or why would a proposed law allowing criminals to choose torture over long prison sentences freak everyone out? Katz’s second perversity involves legal “loopholes’’ like tax shelters and contrived criminal defenses (wanting to murder someone, I give them reason to attack me, and then kill them in self defense). Why does the law have so many, and should lawyers be encouraged to take advantage of them?