Public Choice and Law’s Either/Or Inclination

Why the Law Is So Perverse. Leo Katz. Chicago, 2011. Pp ix, 239.

Public choice theory has had an easy time infiltrating law where interest-group activity is manifest. It has had less success appealing to lawyers when it comes to legal decision making. A handful of academics have mastered the idea that appellate courts are multimember decision bodies, apt to cycle, or reveal intransitivities, as they consider multiple subjects in a single case. A larger group of academics and judges, influenced perhaps by the fluid, debatable, and yet hardly mysterious annual rankings of college football teams, recognizes that judicial results might depend on the order in which cases are considered, much as two teams with one defeat might be ranked differently depending, among other things, on when each suffered its loss. But analogy and integration are not the same thing. Occasionally, Professor Leo Katz’s marvelous book, Why the Law Is So Perverse, is brave enough to suggest that law and collective choice are so connected as to be one thing. The title might seem to promise that a few strange outliers can be speared with a single tool—and the book certainly delivers on that assurance—but at times the volume can be understood as beginning with seemingly perverse results and then expanding the argument until a monumental and parsimonious claim is made. Such audacity needs to be approached in a few steps.