What's law got to do with it? A law professor muses about the legal
rules governing morally ambiguous cases of misappropriation such as
tax evasion and insider trading. Katz (Univ. of Pennsylvania) has
set himself quite a task: to solve the "mystery" of marginal
instances of theft, cases in which the law and common practice
diverge. He begins by deconstructing what he dubs "avoision," those
acts and omissions "hovering in the limbo between legitimate
avoidance and illegitimate evasion" of the criminal law. For
example, he asks, is there anything morally wrong with
"gift-leaseback" maneuvers to circumvent tax laws? With
corporations that insulate themselves from liability by
incorporating subsidiaries to perform environmentally hazardous
work? Should the law treat such acts as crimes? Katz says no.
Alluding to myriad instances of "avoision" in the Talmudic and
Jesuitic traditions, as well as in history and literature, he shows
how "avoision" is an inherent part of any formal system of
morality, which the law merely mirrors. Therefore, he argues, when
lawyers strategize to circumvent legal rules, they are merely
capitalizing on the formalistic properties of the law, like
latter-day Talmudists and Jesuits. Lest readers fear that Katz is
leading them down devilishly slippery slopes, he returns in Part II
with an attack on blackmail, arguing that the blackmailer may not
evade the criminal code by deeming the transaction a standard
"offer." An obvious point belabored, but the comparison between
blackmail and insider trading is opaque, cluttered with "optional
red herrings" and endless too-cute hypotheticals. The final chapter
on the "misappropriation of glory" (e.g., stealing intellectual
property) is similarly meandering and pedantic, at a remove from
the laws that judges and lawyers actually apply. Academics may be
captivated by the interdisciplinary approach, but lawyers and
general readers will bail out early on. (Kirkus Reviews)
The law is full of schemes that use subterfuge and circumvention.
Clients routinely ask their lawyers to help them find a legal way
around the law; and lawyers routinely oblige them, saying things
like: "You would like to make a movie with lots of steamy sex and
not run the risk of an obscenity suit? Well, why don't you load it
up with some important social message, and that way it no longer
qualifies as obscene!" Or: "You would like to reduce your taxes?
Well, why don't you consider the following ridiculous-sounding
investment ..." When, if ever, are such schemes wrong? When does
tax avoidance become tax evasion? When does a hard bargain become
blackmail? And even if an action is legally sanctioned, could it
still be morally wrong? In Ill-Gotten Gains, Leo Katz leads us
through a tangled realm rife with puzzles and dilemmas to find the
underlying principles that guide not only the law but our moral
decisions as well. Mixing wit with insight, anecdotes with
analysis, Katz uncovers what is really at stake in crimes such as
insider trading, blackmail, and plagiarism. He then goes on to
reveal their surprising connections to cases where someone tries to
evade the law by finding refuge in it, from the convict who staves
off execution by rendering himself incompetent with mind-altering
drugs, to companies that sell strategies to beat the SAT test.
Ultimately, Katz argues, the law, as well as our conscience, is
surprisingly uninterested in final outcomes and astonishingly
sensitive to how we get there, which is why sins of commission are
so much more weighty than sins of omission. Among the more peculiar
implications of this phenomenon is that much behavior we
intuitively judge to be devious, Machiavellian, or downright
diabolical is in fact perfectly moral; and that much behavior
which, in a free society, we consider the very model of morality is
in fact quite the opposite. Ill-Gotten Gains draws on a wide range
of examples, from Jesuitic advice on how to kill someone with
impunity, to Hemingway's observations on bullfights, and the
Scott-Amundsen race for the South Pole. With its startling
conclusions and myriad twists along the way, the book will
fascinate all those intrigued by the often perplexing relationship
between morality and the law.
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