In Ill-Gotten Gains, Leo Katz describes the underlying principles that not only guide the law but also moral decisions. Mixing wit with insight, anecdotes with analysis, Katz uncovers what is really at stake in crimes such as insider trading, blackmail, and plagiarism. With its startling conclusions and myriad twists, this book will fascinate all those intrigued by the perplexing relationship between morality and law.
"An ambitious and well-written book of legal and moral theory to overthrow both utilitarianism and its cousin, the economic approach to law."—Richard A. Posner, New Republic
"A good, well-written book full of interesting examples."—Library Journal
"[An] elegant defense of circumvention and subterfuge . . . a heroically counterintuitive book."—Malcolm Gladwell, New Yorker
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.