Ill-Gotten Gains: Evasion, Blackmail, Fraud, and Kindred Puzzles of the Law.

• Author: Alexander, Larry

By Leo Katz. Chicago: University of Chicago Press. 1996. Pp. xiv, 293. $29.95.

Mildred and Abigail are two actresses of the same vintage and type who have always competed for the same roles. In this competition, Abigail has been the clear winner and has had a successful career, while Mildred has always been in Abigail's shadow. There is a part open that Mildred believes would salvage her career, if she could land it. Mildred also believes, however, that if Abigail auditions for the part, Abigail will get it, as has happened so often before.

Mildred does possess one trump card. She knows that Abigail has been unfaithful to her husband. Mildred contemplates calling Abigail and telling her that unless she stays away from the audition, Mildred will inform her husband of her infidelities. The problem with this plan is that it involves blackmail, and Abigail just might turn Mildred in to the police.

So Mildred comes up with an alternative plan. She writes a letter to Abigail's husband detailing Abigail's infidelities and mails it at a time that would make it due for delivery at Abigail's house during the audition. Mildred then calls Abigail and tells her about the letter. Sure enough, Abigail stays home to intercept the letter before her husband can get it, while Mildred auditions and, without Abigail's competition, gets the part.

The story of Mildred and Abigail is the first of many such stories in Leo Katz's(1) marvelous new book, Ill-Gotten Gains. Many of the stories are, like that of Mildred and Abigail, purely the product of Katz's quite wonderful imagination. Others, however, are drawn from real life, and from sources so varied that one is awestruck both by Katz's erudition and by the catholicity of his reading.

At the end of each story, whether fictional or real, and whether drawn from case reports, biographies of the famous, or Ann Landers, Katz's question is almost always the same: Can he or she get away with it, and not just legally, but morally? For example, has Mildred committed blackmail, or has she succeeded in getting the benefits of blackmail without incurring either legal or moral guilt for her actions?

Katz's answer is that Mildred has so succeeded. She has engaged in "avoision" -- a neologism Katz coins out of "avoidance" and "evasion" -- and avoision works not just in law but in the underlying moral universe that law reflects. As with, say, the tax code, in which the legal status of a transaction is frequently determined by its form rather than its substance or the purposes for which it is engaged in, so too, argues Katz, is the morality of many an act determined by its form rather than by the actual effects produced or the state of mind of the actor. That neither consequences nor states of mind fully determine the morality of acts is what creates the possibility for avoision, the moral equivalent of having one's cake and eating it, too. So long as the requirements of moral form are observed, one can, like Mildred, pursue nefarious ends for nefarious reasons without doing anything immoral.

Now this is a deeply counterintuitive position, as Katz is keenly aware. Indeed, its counter-intuitiveness explains both why Katz has written the book and the obvious relish with which he develops the delicious real and hypothetical examples that he marshals to illustrate and buttress his claim. Like most counter-intuitive claims, however, Katz's is, I believe, wrong, for reasons I shall address shortly. Nonetheless, neither the counter-intuitiveness of Katz's claim nor my pronouncement of error should warrant the conclusion that Ill-Gotten Gains can be ignored.

First, there is a chance that I am wrong and that Katz is correct; and that chance, when multiplied by the theoretical importance of the claim if true, makes the book quite important on that ground alone. In addition, even if Katz is mistaken, his errors should be instructive. Finally, Katz is an immensely entertaining writer, whose erudition, keen wit, and imagination cannot fail to delight the reader, even if she disagrees with Katz at every turn.

1. AN OVERVIEW

   The most important part of the book is, in my opinion, Part One. In Part One, Katz seeks to introduce and then solve the puzzle of avoision. The conventional view is that legal rules are frequently and perhaps necessarily over- and underinclusive when measured against their background purposes, and this over- and underinclusiveness creates loopholes that clever lawyers, protected by the terms of the rule and the principle of legality, can exploit for the benefit of clients. Avoision is, on the conventional view, restricted to the domain of legal rules; it does not occur in the domain of morality, which is neither posited nor encumbered by concerns germane to the posited, such as legality.(2) Whether or not Mildred is guilty under the law of blackmail, on the conventional view, she is morally a blackmailer.

   Katz attacks the conventional view in stages. First, he argues that avoision occurs in extralegal contexts, a phenomenon that cannot be explained by the conventional view. Avoision occurs in dictatorships that do not honor the principle of legality (pp. 17-19). Avoision occurs within our own consciences, surely not an obvious domain of fallibly drafted over- and underinclusive rules (pp. 19-24). And avoision occurs within "Jesuitical" religious doctrines that turn out to mirror closely the criminal law but that again do not fit the contextual presuppositions that the standard account gives for the necessity of blunt rules (pp. 24-30).

   Next, Katz makes what is his central theoretical claim: Any system of morality that is not purely consequentialist inevitably is going to contain a certain amount of formalism, and formalism creates the opportunity for avoision (pp. 52-59). In other words, any deontological morality -- or deontological component of morality -- will be formalistic in the same way that the criminal law and the tax code are formalistic. Complying with the morally prescribed forms makes you morally safe, just as complying with the legally prescribed forms makes you legally safe. And this is true even if you follow the prescribed forms solely in order to achieve a goal that morality otherwise forbids.

   Thus, according to Katz, if a deontological theory of morality condemns harvesting one healthy person's organs to save five dying persons, but does not condemn diverting a trolley from a track where it will kill five persons to a track where it will kill one, it will be possible for the determined organ harvester to achieve his otherwise immoral goal in a morally permissible manner if only he somehow can convert a "harvest" situation into a "trolley" situation (pp. 56-57). Or, if morality condemns private execution of those disposed to violence but does not condemn the use of deadly force in self-defense, then it is morally permissible for Charles Bronson to walk in Central Park at night for the sole purpose of enticing violently disposed persons to attack him so that he can, in turn, kill them in self-defense.(3) Or, to use an example about which Katz and I have disagreed elsewhere, Katz would claim that it is morally permissible for you to drive at a safe, legal speed around your enemy's neighborhood, even if you do so for no other reason than the slight...