The Law of Loopholes in Action

DAVID GELERNTER
David Gelernter is professor of computer science at Yale University and a senior fellow in Jewish thought at the Shalem Center, Jerusalem.

Los Angeles Times

May 6, 2005

Noticing patterns helps you predict, sometimes, how a story will turn out. For example, there's the law of loopholes: Every loophole will eventually be exploited; every exploited loophole will eventually be closed. This is human nature.

Consider post-9/11 Washington — a sad sight, with long lines of tourists patiently awaiting yet another inspection for the privilege of entering yet another government building they probably helped buy with their own money. All security loopholes are closed, theoretically. But we have been traveling this road for a long time.

In 1849, Isaac Mayer Wise visited Washington and was taken around by an acquaintance who decided they might as well stop in on the president — who was (after all) one of the sights of the city; there weren't too many others. (Later, Wise became a founder of Liberal Judaism. That's another story.) Wise and friend walked into the White House. There was no one around but a butler, who "pointed backwards to the staircase" when they asked for the president. They went upstairs, knocked on a door and were told to come in. President Zachary Taylor was sitting alone by the fire, doing nothing in particular. "Step up closer, gentlemen," he said. "It is cold today." So they did, and the three had a pleasant chat.

Fifteen years later the painter Francis B. Carpenter, passing the White House on a summer morning, saw President Lincoln out front "looking anxiously down the street," trying to find a newsboy. There was a war on, and the president wanted to know what was happening. Naturally he was eager for a morning paper. If you can find a newsboy, said Lincoln to Carpenter, "I wish you would start one up this way." He proposed to wait patiently till the newsboy arrived.

Washington was a city of wide-open loopholes. If you had business with the president, you knocked on his door. A year later Lincoln was murdered and the loopholes started to close — slowly, like flowers at dusk. But ever since, this society has locked itself down tighter and tighter.

Terrorists in the late 1960s discovered a different kind of loophole: It was easy to hijack airplanes. Just charge into the cockpit waving a gun. Hijacking seemed like a fairly pointless crime at first. But every loophole gets exploited. In 1968, hijackings to Cuba became a serious fad. Air travel security began to tighten in response — but not enough. On Sept. 11, 2001, it became clear that many loopholes had remained wide open. The nation hurried to shut them, but no doubt many others are still available. If you can think of any, keep them to yourself.

Terrorists discovering air travel security loopholes resemble lawyers discovering that you can win millions by suing the right companies in the right courts. Agreed, lawyers are not criminals. But traditionally nothing prevents parasitic lawsuits in this country except comity, common sense and the wisdom of judges and juries — which isn't much. And every loophole gets exploited, as we've established. This March, for example, a California judge decided in favor of aggrieved shoppers who had purchased high-end cosmetics at fancy department stores. Evidently, they had been overcharged and were entitled to reparation payments, to be doled out in the form of small dollops of cold cream, etc. The lawyers got $24 million in cash.

Recently, federal tort reform measures became law; many other related federal and state measures are under consideration. It's easy to blame trial lawyers for ruthless greed. But then again, the first law of loopholes is something like the first law of thermodynamics. There is no way around it. Adults discover open loopholes the way children break things, by relentless experimentation that looks aimless but turns out (over time) to be remarkably expensive. It's sad but inevitable.

Which brings me back to Washington. No rule prevents a Senate minority from filibustering a president's judicial nominees. Up-or-down votes are traditionally expected on nominees who have been voted out of committee, but mere tradition can't prevent a loophole's being exploited. Some Republicans are speechless with rage, but they might as well save it. Republicans are now preparing to abolish judicial filibusters — one more open space in American society to be fenced off. Accordingly, some Democrats are now furious — and they too might just as well not bother. Did they expect their loophole to stay open forever? When has that ever happened?