Author Archive | Leo Katz, guest-blogging

Last week was my baptism as a blogger. The astuteness and vigor of many of the reactions I got seemed to me dwarf even the most successful academic workshop presentations I have had. To be sure, in bluntness too the reactions dwarfed what I am used from a workshop presentation, and did occasionally make me wince, but the tradeoff seems well worth it.

It was astonishing to receive not just ingenious hypothetical variations that I had never thought of (like someone’s suggestion of a bargain in which the prisoner’s brother agrees to serve his term for him) but also referrals to books, newspaper accounts and internet sites I did not know anything about.

Some readers obviously were annoyed by my habit of closing the first four posts of the week with what I thought was no more than a teasing invitation to look at the book on which they were based. They felt badgered. If you are one of those readers, I apologize. That’s a problem for us novice contributors to the blogosphere: we don’t yet have a sense of how something comes across. Next time I’ll know better.

Obviously I can’t respond in detail to the plethora of interesting points raised. I will just have to limit myself to those I judge to be of the widest possible interest.

Some Last Words on Loopholes:

Many readers rightly remained puzzled how exactly I conceive of the analogy between killer amendments and loopholes. Perhaps I erred in trying to condense the gist of the analogy within the confines of a post. Nailing it down actually takes me a fair number of pages in the book itself. But let me try to give more of a glimpse of how the analogy works.

Killer amendments illustrate a ubiquitous feature of voting rules: a [...]

Here is another example I have found interesting in its own right but also helpful in thinking about consent. It is an admittedly completely artificial case of triage.

Al’s favorite hobby is the piano. One day he has a traffic accident. As he is pulled from the rubble he notices that the dexterity of one of his fingers is somehow impaired. He is greatly worried, and goes to an emergency room, where he finds exactly one physician in attendance. It quickly turns out that time here is of the essence, if Al’s finger is to be restored to its former piano-playing level. Luckily there is no other patient competing for the doctor’s attention.

But as the doctor is about to treat Al, something unfortunate happens. For just then Bea is brought in, who has suffered a serious injury to one of her legs, which will turn into paralysis unless immediately taken care of. Loss of one’s leg being a bigger problem than a slight loss in digital dexterity, the doctor of course immediately turns from Al to Bea.

And then something else very strange happens. Al notices that he has suffered another injury he and the doctor have overlooked so far—an injury which, if not taken care of immediately, will cause him to lose the use of both his legs. By virtue of this fact, he of course immediately regains the doctor’s attention.

Then things get even stranger. For Al asks the doctor to please ignore his legs for the time being and just focus on making sure his finger is fully restored. At first the doctor refuses. “How can I possibly justify not dealing with Bea’s more serious leg injury for the sake of dealing with your overly intense concern about your finger.” “Never mind,” says Al, “Bea is [...]

Let me present you with a problem I have found quite fruitful to contemplate, both because I find it intrinsically interesting and because it seems to carry a larger lesson. It is the problem of voluntary torture.

Imagine the following proposal by a wild-eyed legislator for making our criminal justice system more efficient. “The point of punishment is pain,” he explains.”Obviously. Without pain, we don’t get deterrence and we don’t get retribution. But prison happens to be a very expensive pain delivery system. There is a much cheaper one which for some reason we haven’t really adequately considered. Instead of making a prisoner’s life moderately painful for a prolonged period of time, which is what prison does, why not just make it intensely painful for a very short period of time: a lot of pain, but for a short duration—that should give us as much retribution and deterrence as before but at a fraction of the cost.”

Seeing the astonished expression on your face, he adds, “And before you dismiss me as being stuck in the middle ages, let me point out that this is not what we had back then. This is Voluntary Torture, with the emphasis on voluntary. No one gets tortured unless he asks to be and unless we have made sure that he is really competent to give his assent. And if he ever wants to back out, of course he can. In other words, everyone is free to serve his regular prison term, but if instead he wants to opt for voluntary torture, we’ll let them.”

Noticing your continuing puzzlement, he elaborates further: “You might wonder why any prisoner would want to opt for torture instead of prison. But of course that only depends on our making the torture option just a smidgeon more attractive [...]

One of the main things a law teacher does in class is to explore the boundary regions of a legal doctrine—the hard-to-categorize cases that are most likely to give rise to litigation: Is it an assault for a man to kiss a sleeping woman? Has the hunter acquired ownership of a wild animal when one of his bullets has been lodged in it, whereupon the animal stumbles into another hunter’s trap? Is the alumnus’ promise of a donation a binding contract? Posing these kinds of questions may be the activity law professors most often indulge in, often to excess.

One of the most fascinating problems raised by such boundary cases is why the law is so disturbingly rigid when dealing with them, why it paints in black and white, when reality seems to come in shades of gray. The law insists that something either is an assault or is not, either gives rise to ownership or does not, either is a binding contract or is not. There are no in-betweens.

The trouble is that many of the actual cases seem like in-betweens. In fact a case would never reach the courts if it did not seem to be in-between. But why not let the court say that while this is not a clear-cut case of an assault, it is sort of an assault and that therefore we will award the victim a fraction of the damages, or impose on the perpetrator a fraction of the punishment, that would be appropriate if this were a clear-cut case? Wouldn’t that avoid a lot of unnecessary hair-splitting hairsplitting? That’s what many legal scholars have come to believe. Are they right? Would it be better if the law were less either/or?

My own conclusion in thinking about this question at some length is that [...]

Not everyone was convinced by my contention in yesterday’s post that the mismatch theory of loopholes is wrong, to put it mildly. Their reservations are understandable. More detail is needed to make the claim convincing, more detail than a blog post allows.

More importantly, however, it is hard to be convinced of the wrongness of a plausible theory, like the mismatch theory, whatever its defects, if one doesn’t have a plausible alternative. In this post, I will try to offer you one.

It has often been suggested that the prohibition on sex discrimination was added to the Civil Rights Act of 1964 as a devious attempt to kill the Act. Supposedly its sponsors calculated that there would be a majority to support the amendment regarding sex discrimination, but that once the amended bill went up for a vote, a majority would find it too repellent and the entire Civil Rights Act would go down in flames.

Whether this is what really happened is controversial. But what is not controversial is that killer amendments are often a successful strategy for derailing a bill that is about to be passed. There is something deeply paradoxical about this. If a majority of legislators support the amendment, why would a majority then not support the amended bill?

What we have here is a particularly interesting version of Condorcet’s voting paradox, first discovered in the late 18th century (actually by a colleague of Condorcet’s, Borda, and then misattributed to the former), which says that it will sometimes happen that as between three alternatives, a majority might support A over B, a majority might support B over C, but that it will then not necessarily be the case that a majority will also support A over C. The very reverse might happen: A majority might support [...]

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 [...]