A lawyer tells a client who is on the verge of declaring bankruptcy, to move to a state with generous exemptions: to convert most of his remaining assets into a house (exempt), designated pensions (exempt as well) and similar special assets, which the law deems to be the equivalent of the shirt on your back, which no creditor is entitled to take away from you. In this way, the debtor gets to keep most of what he owns and to thumb his nose at his creditors.
Another lawyer tells his client who is a visiting the US on a tourist visa but would very much like to make his home here, that he should try to qualify for political asylum. “But I’m not being persecuted back home,” the puzzled client says. “True,” says the lawyer, “but don’t you in fact live in a brutal dictatorship and wouldn’t you have to fear persecution if you ever did speak out against the government, and if you haven’t done so already, perhaps you should do so now … and thereby qualify for asylum?”
Although lawyers give this kind of advice routinely, they usually feel ambivalent about it. On the one hand they are pleased and proud to help someone out; on the other they feel themselves to be taking advantage of a loophole and loopholes are in bad odor. But that’s only true because everybody has an entirely misguided idea of why laws have loopholes.
The misguided idea which has been around forever and has been considered self-evident from the days of the Romans, at least, is that we have loopholes because it is very hard to get laws right, and what lawyers routinely do is take advantage of the impossibility of getting the laws just right, that is, of writing them in such a way that the law’s language exactly reflects its underlying purpose. I’ll call this the mismatch theory of loopholes.
A bit of reflection of the kind we routinely engage in when we question our students socratically—which usually involves getting them to draw out the implications of something they already know—should be enough to show that the mismatch theory is almost surely wrong.
Here are three counterexamples to the mismatch theory.
The First Counterexample: Evading God. Perhaps the most immediately compelling counterexample to the mismatch theory is the way the devout treat religious commandments. They circumvent them with a brazenness that would put the most aggressively loophole-exploiting lawyer to shame. Indeed Jesuitic and Talmudic reasoning are famous for the ways in which they seem to offer legalistic-looking shortcuts for complying with divine commandments with a minimum of inconvenience and sacrifice.
To circumvent the prohibition against dueling, the Jesuits recommend contriving to create a situation of self-defense: let your opponent know that you will be taking a stroll to a certain location at a certain hour. When you then encounter him there at the appointed time and you see him take position for the planned fight, your participation in the duel has become nothing more than self-defense.
Talmudic scholars recommend that to circumvent God’s prohibition on operating a business or even performing such a minimal task as turning on a light on Shabbat, Jews hire a gentile (the “Shabbes goy”) to perform that task for them.
Many religions prohibit lending money at interest. When they do, its followers usually feel free to circumvent the prohibition by a variety of devices, the most devious and simple of these being the sale of some valuable object by the debtor to the creditor, with an advance agreement that it be repurchased by him for a fixed higher price at some later date. The literature setting out and elaborating on such recommendations is no small part of a theological library.
The mismatch theory cannot make sense of these religious ruses. If the mismatch theory is right, what devout believers are doing involves nothing less than taking advantage of God’s failure to give a sufficiently airtight statement of his commandments. But that is clearly not what the devout see themselves as doing. Now, you might say that the mismatch theory never claimed to explain anything other than the law. But therein lies its problem. If one sees a phenomenon that resembles something that goes on in the law to a T, then it seems plausible to think that it is the same sort of phenomenon and that any explanation for that phenomenon within the law should also apply outside of law. And that is quite clearly not true of the mismatch theory.
The Second Counterexample: Evading Tyranny. Loophole exploitation also flourishes in another unexpected realm—dictatorial regimes. Subverting the ruler’s orders by seemingly obeying them but actually undermining them in subtle ways, though often in plain sight, is one the oldest forms of successful risk-minimizing resistance.
In the early 1980’s Poles wanting to protest the government’s suppression of the dissident trade union Solidarnosz did so by taking a walk on the city’s main promenade timed to coincide exactly with the official news broadcast. They did so, moreover, wearing their hats backwards. This was a non-trivial way of signaling to each other just how widespread opposition to the government had become and the government was at a loss about how to suppress it. Should they start to punish people for wearing their hats backwards?
In a similar vein, there is a story about the former East Germany. In 1988 a group of East German high school students tried to find a way of protesting against East German militarism without incurring the usual penalties associated with such gestures. After a careful search through East Germany’s official army newspaper they found an embarrassingly bad poem titled “Love Song to My Kalashnikov Machine Gun” and posted it on the school’s bulletin board, adding the coy caption “A poem which has impressed us deeply and given us much food for thought.”
These episodes make no sense under the mismatch theory. Since a dictatorship is not bound by the rule of law, why should it be possible to evade its laws in this way? And yet it is.
The Third Counterexample: Evading the Guilty Conscience. Like everyone else, when I want to deceive someone, I find it much easier to mislead than to lie. I have of course done both, but given the choice, I prefer indirection to outright mendacity. It’s not that I fear legal liability and think that this is a good way to avoid it, I just feel better when I lie circuitously rather than outright. The reason this humdrum fact about deception seems worth contemplating is that it poses a further challenge for the mismatch theory of loopholes. When I mislead, rather than lie, I am engaged in a legalistic-looking stratagem, but there is no law that I am anxiously trying to circumvent. There is no legislature that somehow drafted the rule against deception in an underinclusive way, allowing me to take advantage of the gap between the letter and the spirit of the rule.
Well, if the mismatch theory of loopholes isn’t right, how does one account for them? For some hint at an answer, the reader must await tomorrow’s blog post. For the more complete answer, he may want to look at Why the Law Is So Perverse, a book of mine just published by the University of Chicago Press.
G.R. Mead says:
The problem with law is that it is a meeting of truth and violence. The law uses violence to protect truth, but if the law overbears truth, the result is violence. That such violence occurs to the structure of law that no longer serves truth, is but just.
October 31, 2011, 10:07 amRobert says:
What about the possibility that the law is intentionally misleading — that its supposed purpose is not its purpose?
October 31, 2011, 10:08 amkarrde says:
The more I think about your examples, the more they remind me of the ‘hacking’ tradition in the computer world.
The computer system (the hardware, the OS, and the programming language) is a fixed system with well-defined behavior. The hacker (sometimes clarified as a ‘white-hat’ hacker, distinct from a ‘black-hat’ who does his work for profit/illegal-access/digital-vandalism) tries to get the system to do something unexpected, new, and possibly useful.
At any rate, this pattern of using loopholes in law looks a lot like hacking.
I guess my conclusion is that it is hard to set up a system of rules that cannot be twisted into usages that are contrary to the supposed purpose of the rules.
And that lawyers can be hackers, too.
October 31, 2011, 10:22 amSnaphappy says:
What’s described in the first two paragraphs aren’t loopholes as I understand the term. Bankruptcy exemptions and asylum are put there intentionally. I suppose you might call it a loophole to the extent that intentionally exploiting an advantageous exception that wouldn’t otherwise apply is not itself prohibited, but I don’t think that’s what most people have in mind.
October 31, 2011, 10:35 amtstanek says:
Really? I thought that one of our roles as lawyers is to fully advise clients of every legal advantage and option available to them. I don’t write the laws, I just help clients interpret them. People come to me with problems, and I look to the law for solutions.
October 31, 2011, 10:41 amSasha Volokh says:
Solidarność, not Solidarnosz: “sz” is a hard “sh”, while “ść” is a soft “sh” followed by a soft “ch”.
October 31, 2011, 10:41 amloki13 says:
Your comment would be more helpful if you could explain what you think the law’s supposed purpose, and its actual purpose, are.
But let me ask you a question- do you watch football? What is football? Could you say that football is a system of rules that is designed to be applied in such a manner that, more often than not, the best team wins? Are there other interests (such as a time limit, various review options) built into the rules that balance competing interests?
How does this compare to the law?
October 31, 2011, 10:47 amjason says:
I notice that Lays hasn’t even attempted to provide an alternative explanation (to mismatch) for the immigration example he opens up with.
I suspect that this is because no convincing alternative can be found. The drafters of amnesty laws are real people who would happily confirm the mismatch if asked.
The non law loopholes do nothing to change this and in fact reinforce the point because in each case it is a mismatched rule crafted by humans which is being subverted.
October 31, 2011, 10:50 amKen Arromdee says:
The answer for evading God is that
1) If you believe that God exists, then given God’s nature, he never makes laws with loopholes in the sense of being insufficiently precise. Anything that looks like a loophole in God’s laws was intentionally put there by God and so isn’t a loophole to begin with.
2) If you don’t believe that God exists, then the simplest answer is “believers in God often act as if they don’t really believe”. The fact that people think they’ve found loopholes in God’s laws is just another case of them giving lip service to God but not really acting as though he is real.
The answer for tyranny is that the way tyrannies are run usually involves a massive bureaucracy that’s inefficient at a lot of things, including oppressing the people. If the dictator personally ordered that someone who walks around with his hat backwards be shot, walking around with your hat backwards wouldn’t help. But he doesn’t have time to personally decide every death, and he’s not going to give his subordinates the authority to decide on every death themselves. He’s going to give them rules which have to be followed without initiative, which makes it possible to take advantage of loopholes in the rules.
October 31, 2011, 10:51 amAF says:
The problem with this post is that it fails to distinguish between loopholes that evade rules by means of pure fiction, and those that represent bona fide attempts to skirt the edges of the rule.
Some loopholes are bona fide attempts to follow the rule, but go no further. For example, there is a legitimate moral distinction between indirection and lying, so there’s no bad faith in trying to avoiding an outright lie even if one is not going to disclose certain information. Other loopholes, however, are simply attempts to evade a rule while maintaining a fiction that it is still being followed. The Jesuit rule about duels would seem to be an example of this.
Only the former type of loophole is acceptable when the rule is morally legitimate. The latter type of loophole has its uses when the rule is not considered legitimate, but when for one reason or another one wants to be able to claim that they are following it.
October 31, 2011, 10:59 amalkali says:
Having represented several clients petitioning for asylum, it’s unthinkable to me that any attorney would actually give that advice. An asylum petition is a chancy thing, and if it did not succeed, the client would be delivered into the hands of the brutal dictatorship.
This is a hypothetical is offered for purposes of the discussion, of course, but given that the discussion purports to be about the actual practices of attorneys, the hypothetical loses its force if this is not something attorneys actually do.
October 31, 2011, 11:14 amLaura(southernxyl) says:
My daughter met a young man who turned out to be married. (She only went to a movie with him before she found out, but this is reason 4,132 why I won’t get grandchildren.) He is from a country in Central America, and evidently paid a woman to marry him so that he could get his green card; the plan was for them to then divorce. He did not understand why my daughter kicked him to the curb.
(A) This is illegal, because (b) the point of the rules regarding marriage to a citizen is for families not to be broken up, not that you can skip to the front of the line if you can find somebody you can pay to lie for you. But he really did not get why she refused to see him anymore. What she viewed as law-breaking and entering into the important and serious state of marriage in bad faith, he regarded as a loophole and a little white lie.
Pretty sure you are not supposed to lie on your asylum request. The point of asylum is to keep people from being imprisoned, tortured, or killed for political reasons, not to circumvent immigration law. If we need to change the law (and we probably do) then we need to change it, that’s all.
October 31, 2011, 11:17 amWayne says:
Does it matter whether the loophole is a feature (intentional) or a bug (unintentional)?
October 31, 2011, 11:19 amLaura(southernxyl) says:
Not sure about this. If the truth is X, and you say Y which is consistent with X if you look at it the right way or have special information, but from which any reasonable person would understand Z; and you know that your listener understands Z and you don’t correct him; that’s lying.
October 31, 2011, 11:21 amTim J. says:
Yes, we need a better definition of the term “loophole” in this post. Merriam Webster defines it as “a means of escape; especially : an ambiguity or omission in the text through which the intent of a statute, contract, or obligation may be evaded.” In this case, a loophole is definitionally unintentional.
However, in the common parlance, “loophole” is often used to mean “exemptions I don’t like.” See, for example, just about every instance where our legal-scholar president talks about tax loopholes. These are not loopholes in the proper sense; they were put there on purpose, often in legislation signed by the same person who now demagogues them.
October 31, 2011, 11:22 amSnaphappy says:
Yes, lying to get a benefit you’re not supposed to get isn’t exploiting a loophole. There appears to be a foundational problem here in that Mr. Katz hasn’t defined what he means by “loophole.”
October 31, 2011, 11:25 amAngus Lander says:
I don’t see how your three putative counterexamples are counterexamples in fact.
(1) There is a disanalogy in the theological case because God would perfectly express his purposes, so whenever we perceive a mismatch between rule and underlying purpose we must be wrong.
(2) Dictatorships do apply the rules they promulgate, for efficiency’s sake if nothing else, so it is still possible to exploit loopholes qua mismatches between rule and purpose in them.
(3) Finally, the case of the guilty conscience is either inapposite or not a counterexample. It is inapposite if you’ve internalized a norm against lying without internalizing anything broader than that (because then you aren’t taking advantage of a loophole at all – you are just applying the norm against mendacity). It is not a counterexample if you’ve both internalized a norm against lying and understand that the purpose of the norm is to prevent your misleading others; presumably then you will at least note the perversity of taking advantage of an oddity in your psychology (that you have a stronger aversion to one form of an activity all forms of which you recognize as immoral), and in so noting you will demonstrate that you ARE taking advantage of a mismatch. (Obviously, if you deny that what I’ve just described will be your reaction then you’ve generated a counterexample, but until you do it doesn’t cut it.)
October 31, 2011, 11:35 amloki13 says:
Huh? This makes no sense. Take the following hypothetical example:
God says that you shall do no work on the seventh day, Omniday.
A doesn’t like this rule, because A likes to work. A convinces society to switch to a six-day week, with no day named “Omniday.” Every day you are now able to work.
Did God perfectly express his purpose? Was his purpose about Omniday? About the seventh day of the week? Or is this a spirit (“Spirit”) of the law question?
October 31, 2011, 11:45 amOutlander says:
I can relate to the bankruptcy example, since I have a commercial creditor’s rights practice and see debtors who engage in “asset protection planning” to shield assets from creditors. My job is to attack those asset protection plans.
Exemptions (homestead, IRAs/pensions, spendthrift trusts) exist because legislatures made a policy judgment that some assets should be “off limits” to creditors. To me, exemptions become a “loophole” when a debtor manipulates his assets to maximize exemptions while in the zone of insolvency.
I see it all the time–the bank liquidates a small business, and the business owner (who guarantied the business’s debt) suddenly cashes out his stock accounts and buys a big house in Florida to claim the homestead exemption, or transfers valuable assets into trust. In an extreme example, a colleague once had a debtor profess that he was penniless in a debtor’s exam–only to discover he had purchased a $2 million Palm Beach mansion a few weeks earlier using non-exempt assets, and had done so after the creditor had judgment. Unfortunately, Florida’s homestead exemption does not contain a fraudulent transfer exception, so there was nothing the creditor could do about it.
October 31, 2011, 11:47 amHasdrubal says:
I always thought God’s rules were meant to be followed in spirit, not just in word: If you have to convince yourself that what you’re doing isn’t breaking a rule, then you’re breaking that rule. God won’t be swayed by rules lawyering, His laws are guidelines for leading a holy life. So creating and exploiting loopholes is just a means of rationalizing bad behavior to yourself, it’s not following the rules. Isn’t that one of the major themes of the New Testament?
The human institutions surrounding religions have their own rules, and those don’t necessarily get the deference God’s laws do.
October 31, 2011, 11:51 amloki13 says:
I totally agree with your comment, and not so much with Ken and Angus. I’m not much for the religion thing, but if I was, I wouldn’t have on my lawyer hat on after I died. I wouldn’t want to be trying to argue my case- “But God, you are so perfect, I just thought that when you said that bit about not killing, you missed a comma on purpose!”
October 31, 2011, 11:56 amTed says:
Yes. Many loopholes are exploitable because they require facts that are difficult to prove, easy to deny. Plausible deniability doesn’t seem to work well in the context of God. He knows your purpose in following the rule. This doesn’t work well in the real world, because it results in inconsistent rules between people. Some can legitimately work on the seventh day, others cannot. That’s no way to run a legal system…
October 31, 2011, 12:22 pmTed says:
Yikes. What about an exemption limit? I mean $2M seems high, isn’t it usually like $250k?
October 31, 2011, 12:26 pmOutlander says:
Ted,
Florida’s is unlimited.
On an unrelated point, I wonder if anyone has done any research to see how states’ differing approaches to debtor-creditor law affect credit availability. All else being equal, I’d expect that credit would be more expensive or less available in states with more debtor-friendly laws than in states with creditor-friendly laws. I’ve always wondered if it works out that way in practice.
October 31, 2011, 12:35 pmW. J. J. Hoge says:
Groucho Marx told a story about visiting W. C. Fields in the hospital during his final illness. He found Fields, who wasn’t religious, reading the Bible.
Groucho: Bill, what are you doing?
Fields: Looking for loopholes.
October 31, 2011, 12:37 pmTed says:
That seems like utter silliness/stupidity, more than a loophole. No one “needs” an unlimited exemption on a primary residence. What was the legislature thinking?
October 31, 2011, 12:39 pmsloopL3 says:
I’d expect to a general extend, you’d be correct. However, I’d also expect that as you begin to deal with more sophisticated debtors, what is to stop them from moving their assets to more debtor-friendly states *after* they’ve accumulated liabilities elsewhere.
October 31, 2011, 12:41 pmsloopL3 says:
On the same point, Outlander, BAPCPA provided some limitation on where BR filers could claim residency. 11 USC 552(b)(3). But then creditors must be proactive in getting a lien before the time-limits on residency imposed by BAPCPA lapse and the debtor gets to file while claiming debtor-friendly state law exemptions.
October 31, 2011, 12:51 pmwm13 says:
I don’t find these examples very persuasive. There are many religious circles (e.g., most notably, Protestant Christian circles) where “Jesuitical” and “Pharisaical” are considered terms of opprobrium, the opposite of what God wants. Indeed, one might argue that Christianity was founded in opposition to hyperlegalism in Judaism, and the relative numerical success of the two movements reflects the general human perception of the merits of the two approaches. (We will omit here any discussion of which approach does in fact please God.)
And the third example is called “rationalization,” and never condoned in other people.
October 31, 2011, 1:07 pmBelial says:
I always thought a loophole was, as the very word suggests and as a couple others have observed, an unintentional gap in the coverage of a law. For example, “Adjusted gross income below $250,000 is taxed at 20%. Adjusted gross income above $250,000 is taxed at 30%.” Taxpayer with AGI of exactly $250,000 pays no tax, because the statute was poorly drafted.
That is quite different from the asylum or bankruptcy examples provided, where the provisions of law that the lawyer is seeking to take advantage of were intentionally put there by the drafters.
October 31, 2011, 1:19 pmrumpelstiltskin says:
More like hackers can be lawyers. I love how hackers “discover” all of this stuff and then retroactively make doing anything interesting into “hacking”.
People had creative solutions to problems long before either lawyers or hackers existed, you know.
October 31, 2011, 1:32 pmbyomtov says:
Yes.
I think there is another dimension to exploiting the kinds of loopholes or exceptions being discussed. They are there for a presumably worthwhile purpose. We don’t want to break up marriages. We want to offer asylum to the persecuted. But if too many people play games with the rules it becomes necesary to tighten up or eliminate those exceptions. That ends up harming individuals who legitimately qualify.
Create too many false positives and the test gets tightened, and you end up with more false negatives.
October 31, 2011, 2:17 pmLee Moore says:
I don’t find these illustrative refutations at all convincing. The general theme is “if loopholes are unintentional holes in a set of rules, why would people be willing to exploit them ?” To which the answers are :
1. because they don’t approve of the set of rules
2. because they think they can get away with it and are not constrained by any moral sense that they should abide by the “spirit” of the rules
3. they don’t believe the loophole is a loophole – ie the rules are complete
3 covers the religious refutation (if they are really true believers)
October 31, 2011, 2:44 pm1 and 2 cover the dictatorship refutation
2 covers the mislead-instead-of-lie-outright refutation
Dave N. says:
Another perverse “loophole” for Chapter 13 bankruptcies in many jurisdictions is that the debtor who lived large might be given a larger living allowance for expenses than a debtor who cut and scraped and scrimped in an attempt to pay debts before filing.
October 31, 2011, 3:08 pmRobert says:
To achieve something other than what people think.
I coach football. Like most, but not all, competitive games, it’s a closed system which defines winners and losers by what it is, not according to any a priori sense of “betterness”. I think the law is supposed to satisfy some a priori idea of a division, but instead it functions like a self-defining closed system like a game.
October 31, 2011, 3:13 pmRobert says:
No lesser authorities than Jack Chick and Robert Heinlein interpreted Christianity as a loophole.
October 31, 2011, 3:20 pmragebot says:
That the law would be a boom to the RE market and lots of big expensive houses would increase the tax base.
As for “needs” I spent last week at the Chiefland Fall Star Party sleeping in the back of my Sprinter van on a small bed, walking about 100 ft to a Porta-Potti, showering in a communal shower, and cooking on a one burner camping stove; living in the lap of luxury compared to some of my fellow astronomers who were camping in tents.
October 31, 2011, 3:26 pmloki13 says:
Okay, I’ll ask again. What do people think, and what does it do?
That’s non-sensical. Boil down to a more “pure” sport- like the hundred yard dash. It is a system of rules to decide who is the faster runner. We design the rules in order to make it more fair. But in any given race, for a number of reasons, the faster runner might not win. But to go back- we run the race in order to determine who is the faster runner.
I think you’ve given too many football speeches including the words, “It is what it is.”
October 31, 2011, 3:26 pmragebot says:
I always thought Zola Budd was the fastest runner, but the pols sandbagged her.
http://www.youtube.com/watch?v=10Qys5W-aKE
October 31, 2011, 4:03 pmBen P says:
I don’t know specifically about Florida, but many states’ state bankruptcy exemptions (alternatives to the exemptions in the federal statutes) were drafted a century ago and operated under a different economic assumptions.
They typically contain virtually unlimited exceptions for a personal homestead, (My state’s is “up to 40 acres”) but tiny exemptions for personal property, I think it’s $500 in personal property.
Whereas the federal rules have a $25,000 for personal property and a separate but limited exemption for equity in a primary residence.
The difference is obviously that in 1870 or whenever the old statute was passed, the legislature thought that the family farm was your livelyhood and was immune, but what was then a sensible limit on personal property has been marginalized by inflation.
Considering trustees often abandon a great degree of personal property anyway. (seizing used furniture rarely makes money for a trustee), a large homestead exemption is a pretty common strategy to maximize the assets you can carry through bankruptcy.
On the other hand, if your property is mortgaged to the hilt, and virtually all of your possessions are personal property, you’re much better under the federal rules with their $25,000 exemption.
October 31, 2011, 4:26 pmkarrde says:
And hackers dream that they’ve discovered the pure form of this process because they are working within a system that enforces rules perfectly.
Anyway, we have
(1) a Rule-System
(2) possible results that were likely not intended in the drafting of the rules
(3) specialists who pursue maximizing these results
The glove appears to fit, even if few other commenters have pursed the thought.
On a broader front…didn’t we have the sports-law-and-intention discussion already?
October 31, 2011, 4:54 pmJason Schwalm says:
Malcolm Gladwell wrote an article for the New Yorker a few years ago, talking about competitive situations (sporting events, fights, wars, etc) in which there is a marked power imbalance between the participants, the David vs. Goliath scenario. He argued that David beats Goliath more often than one might expect, and the reason for this is that Goliaths have a tendency to read more into systems of rules than can actually be found there. http://www.newyorker.com/reporting/2009/05/11/090511fa_fact_gladwell
It seems like this idea applies here. If one rule says, in bankruptcy your creditors take your stuff, and another rule says (in some states), “stuff” does not include your home, then you can move to a more favorable state to protect your assets. Goliath calls that a loophole, because he is too busy trying to determine what the rule is “really” trying to accomplish, and as a result he loses more often than he should. David sees a collection of rules as a closed system, one that does not incorporate our other ideas about the world, and plays the rules to the letter, to his advantage.
Morally blameworthy? Perhaps. But, Gladwell says, it explains David’s surprisingly frequent successes.
October 31, 2011, 5:10 pmloki13 says:
We did. But I keep coming back to it. I think it makes for a decent analogy. Also, with the enhanced use of review / instant replay in the pros (appellate review) I think it is now inarguable that football is the most legalistic sport we have.
October 31, 2011, 5:23 pmYisroel Markov says:
Nitpick: after studying the subject, my sense is that Talmudic scholars do not recommend hiring non-Jews to perform tasks on the Sabbath. On the contrary, they recognize such employment as a reality (e.g., business partners) and surround its practice with all sorts of precautions and encumbrances, making it fairly difficult. Likewise with interest; in fact, the “buy low – sell high” trick is expressely prohibited.
Also, in Judaism there’s no theological problem with God supposedly expressing Himself imperfectly. The governing statement is “The Tora speaks in the language of man,” with all attendant limitations. This is one of the reasons the doctrine explicitly admits of multiple valid interpretations of Scripture (before the votes on the final law are tallied); this is taken to be a feature, not a bug.
October 31, 2011, 5:24 pmDavid Schwartz says:
When God closes the door, he opens a window, but then you must close the window.
If the word and spirit of a law are not the same, the words are poorly chosen.
October 31, 2011, 5:34 pmrilkefan says:
In some varieties of Buddhism, one isn’t supposed to cause the death of a fish by asking the person with the tank in the market to whack it for you, so the thing to do is to say, “That looks like a yummy fish, but I can’t ask you to kill it for me”, walk away, and then be pleasantly surprised when the seller runs up to you and says, “That fish just happened to die!”
October 31, 2011, 6:31 pmadjunct says:
Some of the “loopholes” here are not properly such.
Take the homestead exemption issue. We have an underlying principle we wish to protect, namely, that creditors should be repaid.
We also have a different principle, which is not consistent: we want people to be able to keep their homes.
It will be impossible to reconcile these two principles completely one with the other. To one person’s eyes, a home retained will be too lavish and expensive.
To another person, the home retained will be barely sufficient.
Reconciling these two principles requires a consensus on (what will be at the fringes) contradictory terms.
Law is the compromise point.
The “spirit of the law” business is an odd duck here. What is the law’s spirit? To protect the homeowner? To repay the creditor? Both? None? And what of the intentions of the hundreds of legislators who passed it?
Bottom line: this a cute gimmick for a discussion but seems to be a misapprehension of what law is about.
The “loophole” is simply one person’s ranking of one principle over the other.
Criminal went free because of legal technicalities?? Silly legal loophole — because the principle of the law is to convict the guilty.
October 31, 2011, 6:52 pmOn the other hand, the other principle is to protect people from the power of the State. So if we stop the police from barging with no right into our houses, our principle of privacy and freedom from coercion is maintained.
adjunct says:
How about my favorite: the speeder who never pays a ticket because he finds a technicality that the cop can’t prove?
Each technicality for the cop is based on an underlying principle. You can’t get rid of the technicality without getting rid of the principle behind it.
For example: the cop didn’t use a properly tested radar gun.
Principle: we don’t want the state able to convict people on the basis of unreliable evidence.
The area was an unlawful ‘speed trap.’
Principle: We don’t want the State snaring the innocent.
The cop can’t testify to the training he undertook in radar use.
Principle: we don’t want the State making errors.
Each of these points is very valid. Who is to say when they trump the principle behind speeding: namely, convict the speeder who puts people in danger by going too fast?
People are not motivated by one issue. One man’s loophole is another man’s guiding light. Criminal defense lawyers know this well.
October 31, 2011, 7:02 pmTed says:
Agreed.
No, an unlimited exemption is not a “compromise point.” It simply provides a way, a loophole if you will, for a debtor to entirely avoid the first principle. No reasonable person believes that a person needs a house of “unlimited” value.
To suggest otherwise is to saying that a debtor who owns a house has no obligation to pay his creditors. Is this not called compromising principles, it is called prioritizing principles.
October 31, 2011, 7:22 pmTed says:
I think the difference is intent. Loopholes result in unintended consequences, obtaining a an acquittal based on the insufficiency of evidence is not a “loophole,” as the law intends that people be acquitted when there is no sufficient evidence of their guilt.
October 31, 2011, 7:39 pmRobert says:
I mean whatever they think. That’s a possible explanation for the phenomenon in question.
In speed trials, yes, but not as a sport. As a sport, all it determines is who wins the 100 yd. dash.
(Quote)
October 31, 2011, 8:07 pmSo to get the answer you want in a speed trial, do it over a number of times and take an avg.
Robert says:
Hard to clear things up with the quoted messages in this editor, so I’ll start over. Lawmmakers can deliberately craft a law to appear intended for a certain purpose, when it really isn’t. So then people will get an intended misimpression that the law is misdirected.
October 31, 2011, 8:22 pmMilhouse says:
That’s all very well if you know what the spirit is, and how can you know that except from the letter? It’s all very well on those occasions when the letter spells out the purpose of the law; indeed one could argue that the reason it bothers telling you the purpose is so that if you think you found a loophole in the letter of the law, which would frustrate its purpose, then you can know that there’s a flaw in your reasoning. But in most cases the purpose is not spelled out, but can only be deduced from the letter of the law itself; and the Author of the law is perfect, and could not have left any loopholes that He didn’t intend, so if a loophole appears to frustrate what you speculate to be the law’s purpose then you can know that you got the purpose wrong.
November 1, 2011, 12:35 amLarryA says:
“One of these days I’m going to want to buy a house, and…”
We just had two SCOTUS cases on this point, Heller and McDonald.
D.C. and Chicago never actually “banned” handguns with a law that said, “You can’t possess a handgun in the city.” They both passed handgun registration laws, as in “You can’t possess an unregistered handgun in the city.” Then they refused to register any handguns. Another example is the “You have to declare illegal income and pay income tax on it” rule. It isn’t there to raise revenue.
On the congressional level it’s always fun to read the “why we need this law” section at the top, then see if there are any provisions in the law that actually pertain to the preamble.
Not quite. The NT proposed a totally different approach to virtue.
The Old Testament uses the Ten Commandments, which are mostly “Thou shall not” rules. The result of such negative rule systems is a legalistic approach to following the rules. “How close can I get to the sin without disobeying the rule?” A primary way of “getting close” is to take advantage of loopholes. “Thou shall not bear false witness.” Okay, but do I have to tell the whole truth or can I get by with not actively lying? Someone else (the legal system) has to decide about rule violations. Then more rules get added to further interpret the basic rules, which create more loopholes, which must be closed with more rules, which have more loopholes, which…
Actually, an atheist would have no trouble following all but the Fourth Commandment, keeping the Sabbath. Which is one of the two “thou shall” commandments.
The New Testament uses the Great Commandments. “Love God with all your heart and love your neighbor as you love yourself.” These are “thou shall” rules, and if followed correctly lead to a virtue-based (for want of a better term) approach. “How far from sinning, hoping to approach perfection, can I get?” Not much room for loopholes there.
To borrow the sports analogy, football has a rule that “thou shall not” step over the sideline. Players commonly run down the sideline, seeing how close they can get without the line judge whistling them out-of-bounds. We then get loopholes: If you catch a pass you and the ball can be outside the sideline, as long as your feet touch the ground inside.
In shooting sports, however, the first rule is “thou shall” point your firearm in a safe direction. Here the rule is interpreted as “Be as safe as possible. Point guns away from people, not just a little away.” Here there’s less tolerance for loopholes. It doesn’t matter whether your firearm is loaded or unloaded. Plus, there aren’t generally umpires and referees; you’re expected to enforce the rules on yourself.
If you look back, all of the examples cited in the post were “thou shall not” rule sets.
November 1, 2011, 12:59 amMilhouse says:
Actually this is not true. A goy is of course not bound by the laws of Shabbes, and may do as he pleases on that day, but a Jew may not induce a goy to do on his behalf what he could not himself do. There are limited exemptions in case of great need, such as medical necessity, and public institutions (such as synagogues) have a partial exemption, but as a general rule the “shabbes goy” is a myth.
I don’t know about Islamic law, but halacha specifically prohibits this. There are indeed ways to structure a transaction, or a series of transactions, so as to achieve the same goal that interest payments have, but this is too blatant and is therefore not one of them.
November 1, 2011, 1:05 amthe other rob says:
I’m dealing with just such a case right now. Our city council is proposing a new animal control ordinance, ostensibly to promote rabies control and animal welfare. In practice, it appears to be intended to do two things:
1: Make enforcement officers’ jobs easier, by eliminating pesky Constitutional obstacles (e.g. it authorises warrantless searches for the purposes of checking rabies vaccination certificates, has an “appeals procedure” that doesn’t come close to meeting the standards established in Goldberg or Morrissey).
2: Raise revenue by criminalising normally innocent behaviour. Brief example – if a neighbour’s cat comes in your yard, you own it for the purposes of being fined for letting it outdoors. Even “better”, because all offences are strict liability, if a feral cat drinks from your bird bath, while you’re asleep and without your knowledge – you’re guilty.
Naturally, the city’s response is “We wouldn’t enforce it like that.” As well as being unpersuasive, this strikes me as being an admission of “arbitrary and erratic” / “almost unfettered discretion”.
November 1, 2011, 9:26 amTuesday Highlights | Pseudo-Polymath says:
[...] loopholes, and a rejoinder to [...]
November 1, 2011, 9:39 amStones Cry Out - If they keep silent… » Things Heard: e196v2 says:
[...] Considering loopholes, and a rejoinder to comments. [...]
November 1, 2011, 9:39 amJorel says:
This is a good example of the mismatch type of loophole. The government wants to make rules for people in actual Marriages, but actually extends the rules to people in marriages-as-legally-defined. People who disrespect state-defined-marriages can take advantage of the rules even if they respect Marriages, because the government has no way of distinguishing the two.
November 1, 2011, 3:30 pmJeff the Baptist says:
It’s a major theme in the Old Testament as well, especially when the Prophets explain why portions of Israel have been brought to ruin.
Compare the practice of the Sabbath Goy to the Mosaic Law in Deuteronomy:
November 1, 2011, 4:12 pmkrapotkin says:
Some years ago, I consulted a law firm that was well known for assisting young people in
evadingavoiding the Vietnam draft.I was issued into the office of a name partner.
She/he said: Of course, you’re a pacifist, aren’t you?
Me: No. I just don’t think that this particular war is worth my life. I lost many relatives to the Nazis, and I’d be one of the first to volunteer for front-line duty if we were facing that sort of situation.
She/he: Hmm. mm-hmm. You are, of course, a homosexual?
Me: No ma’am/sir.
(At this point, an associate entered the office, proffering a bill, and escorted me out of the premises.)
A loophole, it seems to me, is often dependent upon one’s willingness to lie.
November 1, 2011, 5:54 pmMilhouse says:
The words you translate as “foreigner” actually means “convert”, a foreigner who has come and joined you and become naturalised as a Jew. There is no expectation that non-Jews should keep Shabbat, and indeed the Talmud says that non-Jews are forbidden from keeping it.
November 1, 2011, 7:47 pmChris Travers says:
There is one overarching truth: People will find ways to work around unworkable systems. If you have a system that is unworkable (say the current immigration system), then you have people finding ways around this either using legal loopholes or simply ignoring the law altogether.
The immediate corollary is that systems need to work gracefully as much as possible and that if everyone is evading it, the system needs to be changed. Obvious candidates here involve both drug and immigration law.
November 3, 2011, 2:58 am