Criminal Law, Moral Philosophy, and the Theory of Social Choice feat. Leo Katz

Leo Katz’s work focuses on criminal law and legal theory. By connecting criminal law, moral philosophy, and the theory of social choice, he tries to shed light on some of the most basic building block notions of the law.

He is a professor of law at the University of Pennsylvania and the author of numerous articles and books including “Ill-Gotten Gains: Evasion, Blackmail, Fraud, and Kindred Puzzles of the Law,” “Bad Acts and Guilty Minds: Conundrums of the Criminal Law,” and of course, “Why the Law Is So Perverse”.

If you never went to law school, this episode will give you a glimpse of what its like. Leo and Greg run through a number of hypothetical cases and legal theories covering black mail, irrational preference ordering, loopholes, consent, and pain as punishment.

Episode Quotes:

Gray solutions:

When people decide not to go to court, it's often because they realize there's a 50% chance it'll go one way, 50% chance it'll go the other way, so we'll settle on 50% of the damage award. But then you wonder, so why doesn't the law do that? I mean, it's an in-between case, so wouldn't the sensible outcome be an in-between verdict? Wouldn't that correspond to the justice of the situation? But it's not what the law does. Although an increasing number of people believe it should and have argued for that.

Consent problems: 

You've got different kinds of consent problems. One is you can't trade it at all. And then others, you just can't give it in advance. it has to be contemporaneous consent, but if it has to be contemporaneous consent, I mean, that often un-does the point of the bargain as in the case of these contracts for performance over service.

Duress Defense:

The way the law deals with dilemmas is not the way the economist or the consequentialist initially thinks is a sensible way, but instead by accepting intransitivity. And dealing with dilemmas by accepting intransitivity means we're kind of in a different world than that of ordinary consequentialist rationality. We're not in the world of irrationality, but we're in a world that actually pretty much tracks deontological morality.

The trolley problem:

In most such situations, the trolley problem being this case of this trolley, that heads down a track and if we just let it go, it's going to run over five people. But if we divert it to the side it's going to kill one person, then we will have saved the five. And then there are many other situations of more controversial nature where we can save many at the cost of killing one. And from the consequentialist point of view, putting to the side sort of certain systemic difficulties if this becomes known, they would say everything else being equal, that's what we ought to do. It's a dilemma in the sense that it's unfortunate that someone has to die, but it's not really a dilemma for decision-making. In that it's kind of clear what makes sense. Now what's so striking about the law is that it tends not to do that. In many cases it forbids this sort of trade off.

Show Links:

Guest Profile:

• Faculty Profile at University of Pennsylvania 
• Professional Profile at The American Law Institute

His work:

• Bad Acts and Guilty Minds: Conundrums of the Criminal Law (Studies in Crime and Justice)
• Why the Law Is So Perverse
• Ill-Gotten Gains: Evasion, Blackmail, Fraud, and Kindred Puzzles of the Law