Thursday, October 20, 2011

Why the Law Is So Perverse by Professor Leo Katz -- a NYPPL book review

Why the Law Is So Perverse by Professor Leo Katz -- a NYPPL book review
Published by the Chicago University Press - http://press.uchicago.edu/ucp/books/book/chicago/W/bo11518130.html

From time to time a ruling is handed down by a judicial or a quasi-judicial panel that may be characterized as a decision in search of an opinion because of the diverse views expressed by the judges explaining their rationale for their conclusions. Indeed, it may be necessary to create a Venn diagram -- a schematic diagram used in logic theory to depict collections of sets and represent their relationships -- to understand what some might term the paradoxes in the decision.

In his most recent book, Why the Law Is So Perverse, Professor Leo Katz, Frank Carano Professor of Law at the University of Pennsylvania Law School, considers a variety of interesting approaches to determining “the law of the case” or perhaps more accurately, what are the elements in play that result in “the law of the case.”

The titles of a number of the book's chapters such as “Why Does the Law Spurn Win-Win Transactions?” and "Things We Can’t Consent To, Though No One Knows Why", illustrate the types of conundrums or paradoxes in the law that Professor Katz addresses. Other chapters discuss such issues as “Why Is the Law So Full of Loopholes?” and “Why Is the Law So Either/Or?”

Using examples involving a variety of areas of the law including criminal law, election law and property law, leavened by ethical and societal considerations, Professor Katz sets out intriguing examples of “what is” and suggests alternative views as to “what could be” or, possibly, “what should be.”

The first line in Professor Katz’s introduction to this work sets the tone when he states that There are ideas that are preposterous on their face, and yet one is hard pressed to say why. This book is about such ideas.

The following excerpt provides a taste of what the reader will encounter in exploring this volume:

The criminal code contains a long list of specific offenses (murder, theft, rape, etc.) as well as a separate list of defenses (self-defense, insanity, etc.). This kind of division into offenses and defenses is characteristic of most areas of law. Usually the prosecutor, or the plaintiff, has the burden of proving that the defendant is guilty of the offense, and it then falls to the defendant to show that he was acting in self-defense or out of insanity or whatever. Now, one might wonder why things are set up that way. One might for instance define murder not as it currently is, as an intentional killing, but as an intentional killing other than in self-defense or while insane. One might then require the prosecution to make the case not merely that the defendant killed intentionally but that he was not acting in self-defense and that he was sane.

Professor Katz explains: This, then, is the groove into which I will be stepping, the perspective from which I will be proceeding—legal doctrines thought of as instances of multicriterial decision making.

This concise work is thought provoking and provides the reader with insights that both the law professional and the interested layperson will find illuminating and, perhaps, trigger considering approaches to the legal issue at hand that an advocate could use in analyzing and then arguing, or defending, his or her position or rebutting his or her opponent's arguments.

In essence, Professor Katz challenges the reader to think about what is often accepted as “black letter law” and ask him or herself to identify the true issues and the ethical considerations involved and consider the existence of an alternative theory that demands evaluation. In other words, Professor Katz invites his readers to think outside the box.

Why the Law Is So Perverse, 250 pages, may be ordered from the University of Chicago Press, http://press.uchicago.edu/ucp/books/book/chicago/W/bo11518130.html and is available as a hard cover book or as an e-book.

Reviewed by Harvey Randall
Editor and General Counsel, NYPPL

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

Challenging Adverse Personnel Decisions at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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