|
JessicaHallettFirstPaper 6 - 03 Apr 2010 - Main.EbenMoglen
|
| |
| META TOPICPARENT | name="FirstPaper" |
|---|
Following All of the Rules | | | Joseph Stack
In a letter written before his death, Joe Stack wrote of the tax activities that led to run-ins with the IRS: “We took a great deal of care to make it all visible, following all of the rules, exactly the way the law said it was to be done. “ Mr. Stack educated himself on the relevant law, and in reliance on it, took steps to avoid paying taxes. However, he soon found out that “there are two ‘interpretations’ for every law; one for the very rich, and one for the rest of us.” According to his letter, Mr. Stack paid for this transgression with tens of thousands of dollars and years of his life. A situation where a person who makes every effort to stay within the boundaries of the law, by learning it closely and following it precisely, yet is punished for breaking it, warrants a look at what the law expects and assumes about our knowledge. | |
>
> | Yes, probably, but this
isn't that situation. Mr Stack was one of innumerable purchasers of
a snake-oil product: the claim that the US income tax law contains
its own nullification. Mr Stack was told that anyone can become tax
exempt religious organization, sheltering all income from taxation on
that basis. As I mentioned when we discussed this in class, Mr Stack
was more susceptible to this scam because—like many other
people with engineering educations—he believed that a literal
reading of statutory material, plus logic but minus context, will
allow a layman to understand "the law."
This belief was not enough to result in the costs he details.
Unwavering persistence in the belief, despite increasing, graduated
efforts by the IRS to awaken him to the obvious fact that the income
tax law cannot be so flagrantly evaded, and is not built in a flimsy
fashion out of mere language and logic, produced his suffering. If
Mr Stack had received, and heeded, sensible legal advice, he could
have solved his problems peacefully and at far lower cost. The IRS
is not a punitive service: its job is to gather the taxes legally
due, but any taxpayer not engaged in deliberate attempts to evade tax
payment—willing to file returns and to enter into payment
arrangements for taxes due—will prevent the sort of cataclysm
that happened to Stack.
| | | Knowledge of the Law: Doctrinal Clash | | | It is useful to consider two doctrines to understand how the current system contains some irreconcilable tensions. The first is that one cannot be punished for something that is not against the law. The second is that ignorance of the law is no excuse. The very existence of a law is seen as “notice” that some activity is prohibited; as such, the law assumes that the law is known by all. The two come into conflict, however, when people are punished for reliance on the very law they are expected to know. | |
>
> | The fiction of
knowledge, like all fictions, "contains tension." Obviously there is
always a contradiction between a fictional assertion and reality, or
the fiction would be unnecessary. If factual ignorance of law were
an acceptable defense, law enforcement in general would become
impossible, as every enforcement action would either have to begin
with proof of knowledge or a "first bite is free" theory that no one
could be held liable for violation of law until put on specific
personal notice.
Of course, what the law
really does isn't to assume knowledge. The fiction is functionally
equivalent to a rule requiring every person to inform himself
sufficiently to engage in those activities in which he routinely or
profitably engages. This can be enforced through licensure. In
order to drive, or sell insurance, or practice "cosmetology," the
state requires, among other things, that one prove a sufficient
knowledge of the applicable rules to ensure accountability for
compliance. Or it can be posed as a general obligation. The
presence of an obligation to inform is not in conflict at all,
logically or socially, with liability for
misfeasance.
In the area of income
taxation, the state does not even hold parties responsible for
self-education to insure compliance. The complexity of the subject
makes the imposition of such a burden unreasonable, and the result is
a rule entitling a party to escape penalties for non-compliant
behavior if they rely on the services of specialists in doing what
they do. If Mr Stack had secured a legal opinion stating that his
filings were compliant with the Code, although the Service could have
forced him to pay taxes due, it could not have prosecuted him for
what he filed, and he would have had an action against his lawyers
for any penalties the advice imposed on him. Even the signature of a
paid tax preparer on his returns would have provided insulation
against anything other than the original tax liabilities.
Mr Stack's obligation is to comply with the law that exists. Not the
law he personally believes exists, or that some other non-responsible
party has asserted exists. In this respect, his obligation is
precisely the same as every other person bound by law of any kind.
He was in no way punished for "reliance on the very law he was
supposed to know." He suffered the consequences of insisting that
the law he was supposed to obey was one he made up based on legal
materials he did not understand.
| | | An Irreconcilable Tension
Mr. Stack’s case provides a compelling example of how the two doctrines can come sharply to a head: how can a person be expected to know the law to the letter, but then be punished for relying on the same? In his case, strict reliance on the law is nonetheless illegal (at least according to one “interpretation”). In such a case, the only way a truly informed person can be expected to conform in the “correct” standard must be in knowing that his actions were somehow “wrong”. There are also instances when a person is found guilty of an expanded or new law when he should reasonably have expected that it would be expanded- thus, he has “notice” in that he should have known. | |
>
> | This is wrong,
fundamentally, for the reasons I just stated. | | | Inconsistent Decisions
Some cases shed light on this tension between an obligation to know the law and reliance on the law, and there are inconsistencies in how the law expects us to act. In Bryan v. United States, the defendant had to know that his conduct was unlawful, but not the existence of the statute with which he was charged, to be convicted. Evidence suggested that he knew his behavior was unlawful (he shaved off guns’ serial numbers, for instance), and it was in acting with an “evil-meaning mind” that he was found guilty. In Liparota v United States the defendant had to know the existence and meaning of the law his act violated. In Lambert v. California the court held that the defendant had to have known of her duty to register as a felon to be convicted for failure to do so; State v. Bryant, on the other hand, held that the defendant should have inquired into the law, and as such was convicted. United States v. Dauray and Keeler v. Superior Court both found against construing laws such that they would lead to convictions, where it would not be “fair notice” to do so. In contrast, Rogers v. Tennessee held that despite defendant’s actions being subject to a law that would preclude a murder charge, he should have known that the law was changing in other jurisdictions, and thus should have expected his actions to be unlawful. | |
<
< | | >
> | This is a quick and to
some extent reliable summary of cases to be found in a criminal law
casebook, but it doesn't make the necessary distinctions, between,
for example, the authoritative construction of a statute to include a
scienter requirement in the definition of an offense, and the
determination that a statute is void for vagueness. In the first
case, the issue is whether the legislature intends that only parties
who have actual knowledge of predicate facts can be liable (must you
actually know that the feather you are selling comes from a bald
eagle?) In the second, the issue is instead whether—by a
standard of judgment having nothing to do with any individual's
actual mental states—it would be adequately evident to a
trained reader what conduct the law actually forbids. Moreover,
these are all issues of criminal liability, an area in which the
rules confining the state are particularly restrictive, and in which
individual cases near any boundary should be decided in favor of the
defendant. That in itself would ensure "inconsistent" decisions from
the point of view of a casebook, a law professor of the usual
unimaginative stamp, or a professionally unimaginative collection of
law professors, such as the American Law Institute. Given, however,
that courts do not actually resolve all factually close cases in
favor of the defendant, "inconsistency" is even more an attribute of
the appellate record on matters of criminal doctrine.
So? | | | The Legal Fiction of Knowledge of the Law: Conclusions | |
<
< | What can be drawn from these inconsistent decisions? The law holds us to a double standard in which sometimes we are expected to know the law, and other times are punished for reliance. The purpose of a theory of presumed knowledge might be to encourage people to actually know¬ and learn the law; in reality, the doctrine of ignorance being no excuse prompts people to act in ways to ensure that their behavior is not illegal. In doing so, people rely on their own sense of right and wrong. In this way, the law relies on people filling in the gap of knowledge with some form of morality or a sense of what “should” or “probably” is illegal (which can only come from some inner conscience, if not external rules), or assumes that there are circumstances under which it is universally true that a person would be inclined to investigate the law further. The problem there is that this assumes some universal moral sense, or universal code of ethics that is untenable. | >
> | What can be drawn from these inconsistent decisions? The law holds us to a double standard in which sometimes we are expected to know the law, and other times are punished for reliance. | | | | |
<
< | As a result, there is punishment when a person acted seemingly lawfully, and exculpation at times when a person behaved in ways that were clearly beyond the spirit of the law, but where “fair notice” requires that they should not be punished. Both are legal fictions: in the first case, people do not know the details of the law, and in the second case, “fair notice” is a fiction because the person did not act in reliance on the law. This combination of legal fictions, inconsistent requirements, and the substitution of law with morality in cases where lack of knowledge leaves a gap to be filled combine for an unclear system. If there is to be no punishment without law, the law must speak clearly: the legal fictions need to be eliminated, and a clear, practical development of what we are expected to know and are entitled to rely on needs to emerge. If, like Mr. Stack, we follow all of the rules, and still get burned, the law sets forth an impossible double standard. | >
> | That's the original
assertion repeated, but the argument advanced didn't actually
demonstrate it (unless "sometimes" means nothing stronger than "cases
are sometimes decided wrongly"). And some of the arguments on which
you relied are themselves legally wrong.
The purpose of a theory of presumed knowledge might be to encourage people to actually know and learn the law; in reality, the doctrine of ignorance being no excuse prompts people to act in ways to ensure that their behavior is not illegal.
Why would that not be
also the aim? And would the coincidence of the aim and the effect
not be an instance of entire legal success.
In doing so, people rely on their own sense of right and wrong. In this way, the law relies on people filling in the gap of knowledge with some form of morality or a sense of what “should” or “probably” is illegal (which can only come from some inner conscience, if not external rules), or assumes that there are circumstances under which it is universally true that a person would be inclined to investigate the law further. The problem there is that this assumes some universal moral sense, or universal code of ethics that is untenable.
This argument concludes
wrongly because it begins with a fallacious premise that was not
identified when you edited the essay. A legal system such as the one
being described does not rely on gaps being filled by the moral
sense. The most likely thing for human animals, who are primates
practicing imitative learning, is the imitation of what other people
do. The obligation to inform becomes an implicit reinforcement of
the existing tendency to imitate. This is how the law achieves
spontaneous compliance: in states where it is highly visible that
other people cheat on their taxes, such as Italy, voluntary
compliance is notoriously low. In states, like the US, where the
April 15th ritual is made extremely public and the filing process is
seen to be "what everybody does," voluntary spontaneous compliance is
extraordinarily high. Voluntary willingness to comply with copyright
rules concerning entertainment bitstreams has dropped near zero in
the younger segment of the world's populations, now that young people
realize that other young people no longer comply. Entertainment
industry efforts rest on "educating" children into the belief that
the rules are a good idea, while maintaining enough pressure through
harsh treatment of a tiny number of non-compliant persons to
discourage large-scale imitation. Merely stating the strategy is
enough to explain why it cannot work, and why any business remaining
dependent on its success is doomed.
So the premise of the argument above is faulty: the law assumes that
gaps in knowledge are filled not from a universal moral sense (which,
whatever its qualities, would be a poor guide in answering such
questions as whether it is wrong to drive 58 in a 55 MPH zone, or
whether it is wrong not to post calorie counts on a luxury restaurant
menu), but by imitation, leading to conformity, leading to spontaneous
compliance. This requires no dependence on untenable assumptions, and
is in accord with a view of human behavior justified by consilient
argument across disciplines from biology through social psychology to
sociology and comparative literature. | | | | |
<
< |
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable.
To restrict access to your paper simply delete the "#" on the next line: | >
> | | | | | |
<
< | # * Set ALLOWTOPICVIEW = TWikiAdminGroup, JessicaHallett | >
> | As a result, there is punishment when a person acted seemingly lawfully, and exculpation at times when a person behaved in ways that were clearly beyond the spirit of the law, but where “fair notice” requires that they should not be punished. Both are legal fictions: in the first case, people do not know the details of the law, and in the second case, “fair notice” is a fiction because the person did not act in reliance on the law. This combination of legal fictions, inconsistent requirements, and the substitution of law with morality in cases where lack of knowledge leaves a gap to be filled combine for an unclear system. If there is to be no punishment without law, the law must speak clearly: the legal fictions need to be eliminated, and a clear, practical development of what we are expected to know and are entitled to rely on needs to emerge. If, like Mr. Stack, we follow all of the rules, and still get burned, the law sets forth an impossible double standard. | | | | |
<
< | Note: TWiki has strict formatting rules. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of that line. If you wish to give access to any other users simply add them to the comma separated list | >
> | Because the two parts
of the argument on which it relies are each unestablished, this
conclusion falls too. What the revision has to do is to re-edit the
argument to put in place something that relies on solid premises. If
the resulting essay is about Stack, it needs to lose the "reliance"
defense aspect. If the essay turns out to be about the social roots
of compliance, Stack might be one illustration, but I don't think I
see how he could be the only one, and some of the arguments here
would need to be reconsidered entirely. | | | \ No newline at end of file |
|
|
JessicaHallettFirstPaper 5 - 27 Feb 2010 - Main.JessicaHallett
|
| |
| META TOPICPARENT | name="FirstPaper" |
|---|
| |
<
< | | | | Following All of the Rules
-- By JessicaHallett - 25 Feb 2010 | | | What can be drawn from these inconsistent decisions? The law holds us to a double standard in which sometimes we are expected to know the law, and other times are punished for reliance. The purpose of a theory of presumed knowledge might be to encourage people to actually know¬ and learn the law; in reality, the doctrine of ignorance being no excuse prompts people to act in ways to ensure that their behavior is not illegal. In doing so, people rely on their own sense of right and wrong. In this way, the law relies on people filling in the gap of knowledge with some form of morality or a sense of what “should” or “probably” is illegal (which can only come from some inner conscience, if not external rules), or assumes that there are circumstances under which it is universally true that a person would be inclined to investigate the law further. The problem there is that this assumes some universal moral sense, or universal code of ethics that is untenable.
As a result, there is punishment when a person acted seemingly lawfully, and exculpation at times when a person behaved in ways that were clearly beyond the spirit of the law, but where “fair notice” requires that they should not be punished. Both are legal fictions: in the first case, people do not know the details of the law, and in the second case, “fair notice” is a fiction because the person did not act in reliance on the law. This combination of legal fictions, inconsistent requirements, and the substitution of law with morality in cases where lack of knowledge leaves a gap to be filled combine for an unclear system. If there is to be no punishment without law, the law must speak clearly: the legal fictions need to be eliminated, and a clear, practical development of what we are expected to know and are entitled to rely on needs to emerge. If, like Mr. Stack, we follow all of the rules, and still get burned, the law sets forth an impossible double standard. | |
>
> |
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable.
To restrict access to your paper simply delete the "#" on the next line:
# * Set ALLOWTOPICVIEW = TWikiAdminGroup, JessicaHallett
Note: TWiki has strict formatting rules. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of that line. If you wish to give access to any other users simply add them to the comma separated list |
|
|
JessicaHallettFirstPaper 4 - 26 Feb 2010 - Main.JessicaHallett
|
| |
| META TOPICPARENT | name="FirstPaper" |
|---|
| |
<
< | Fleshed-out Outline | | | Following All of the Rules | | |
Joseph Stack | |
<
< | In a letter written shortly before his death, Joe Stack wrote of the tax activities that led to run-ins with the IRS: “We took a great deal of care to make it all visible, following all of the rules, exactly the way the law said it was to be done.“ Mr. Stack educated himself on the relevant law, and in reliance on it, took steps to avoid paying taxes. However, he soon found out that “there are two ‘interpretations’ for every law; one for the very rich, and one for the rest of us.” According to his letter, Mr. Stack paid for this apparent transgression with tens of thousands of dollars and years of his life. A situation where a person who makes every effort to stay within the boundaries of the law, by learning it closely and following it precisely, yet is punished for breaking it, warrants a look at the what the law expects and assumes about knowledge of it, and what people actually know in reality. | >
> | In a letter written before his death, Joe Stack wrote of the tax activities that led to run-ins with the IRS: “We took a great deal of care to make it all visible, following all of the rules, exactly the way the law said it was to be done. “ Mr. Stack educated himself on the relevant law, and in reliance on it, took steps to avoid paying taxes. However, he soon found out that “there are two ‘interpretations’ for every law; one for the very rich, and one for the rest of us.” According to his letter, Mr. Stack paid for this transgression with tens of thousands of dollars and years of his life. A situation where a person who makes every effort to stay within the boundaries of the law, by learning it closely and following it precisely, yet is punished for breaking it, warrants a look at what the law expects and assumes about our knowledge. | | | Knowledge of the Law: Doctrinal Clash
Two Doctrines | |
<
< | It is useful to consider two doctrines to understand that a presumed knowledge of the law is both a fiction and an impractical, illogical requirement. The first is nulla poena sine lege, the principle that one cannot be punished for something that is not against the law. Secondly, the law generally does not provide an excuse for ignorance of the law: ignorantia legis neminem excusat. The very existence of a law is seen as “notice” that some activity is prohibited; as such, the law assumes that the law is known by all. The two come into conflict, however, when people are punished for reliance on the very law they are expected to know. | >
> | It is useful to consider two doctrines to understand how the current system contains some irreconcilable tensions. The first is that one cannot be punished for something that is not against the law. The second is that ignorance of the law is no excuse. The very existence of a law is seen as “notice” that some activity is prohibited; as such, the law assumes that the law is known by all. The two come into conflict, however, when people are punished for reliance on the very law they are expected to know. | | |
An Irreconcilable Tension | |
<
< | Mr. Stack’s case provides a compelling example of how the two doctrines can come sharply to a head: how can a person be expected to know the law to the letter, but then be punished for relying on the same? In his case, strict reliance on the law is nonetheless illegal (at least according to one “interpretation”). This means that a person cannot rely on the body of the law and perform in accordance with it. In fact, the only way a truly-informed person can be expected to conform in the correct way must be in knowing that his actions were somehow “wrong”. There are also instances when a person is found guilty of an expanded or new law when he should reasonably have expected that it would be expanded- thus, he has “notice” in that he should have known. Finally, there are times when a person can be convicted for purposefully getting around the law; again, this would inject a sense of morality (not the law) as a guide to how to behave. | >
> | Mr. Stack’s case provides a compelling example of how the two doctrines can come sharply to a head: how can a person be expected to know the law to the letter, but then be punished for relying on the same? In his case, strict reliance on the law is nonetheless illegal (at least according to one “interpretation”). In such a case, the only way a truly informed person can be expected to conform in the “correct” standard must be in knowing that his actions were somehow “wrong”. There are also instances when a person is found guilty of an expanded or new law when he should reasonably have expected that it would be expanded- thus, he has “notice” in that he should have known. | | | Inconsistent Decisions | |
<
< | Some cases shed light on this tension between an obligation to know the law and reliance on the law, and there are inconsistencies in how the law expects us to act. In Bryan v. United States, the defendant had to know that his conduct was unlawful, but not the existence of the statute with which he was charged, to be convicted. Evidence suggested that he knew his behavior was unlawful (he shaved off guns’ serial numbers, for instance), and it was in acting with an “evil-meaning mind” that he was found guilty. In US v Liparota the defendant had to know the existence and meaning of the law his act violated. In Lambert the court held that the defendant had to have known of her duty to register as a felon to be convicted for failure to do so; Bryant, on the other hand, held that the defendant should have inquired into the law, and as such was convicted notwithstanding his ignorance of it. Dauray and Keeler both found against construing laws such that they would lead to convictions, where it would not be “fair notice” to do so. In stark contrast, Rogers held that despite defendant’s actions being subject to a law that would preclude a murder charge, he should have known that the law was changing in other jurisdictions, and thus should have expected his actions to be unlawful. | >
> | Some cases shed light on this tension between an obligation to know the law and reliance on the law, and there are inconsistencies in how the law expects us to act. In Bryan v. United States, the defendant had to know that his conduct was unlawful, but not the existence of the statute with which he was charged, to be convicted. Evidence suggested that he knew his behavior was unlawful (he shaved off guns’ serial numbers, for instance), and it was in acting with an “evil-meaning mind” that he was found guilty. In Liparota v United States the defendant had to know the existence and meaning of the law his act violated. In Lambert v. California the court held that the defendant had to have known of her duty to register as a felon to be convicted for failure to do so; State v. Bryant, on the other hand, held that the defendant should have inquired into the law, and as such was convicted. United States v. Dauray and Keeler v. Superior Court both found against construing laws such that they would lead to convictions, where it would not be “fair notice” to do so. In contrast, Rogers v. Tennessee held that despite defendant’s actions being subject to a law that would preclude a murder charge, he should have known that the law was changing in other jurisdictions, and thus should have expected his actions to be unlawful. | | |
The Legal Fiction of Knowledge of the Law: Conclusions | |
<
< | What can be drawn from these inconsistent decisions? Sometimes the law expects that we know it, and sometimes it punishes us for reliance. In theory, the purpose of presumed knowledge of the law might be to encourage people to actually know¬ and learn the law; in reality, the doctrine of ignorance being no excuse prompts people to act in ways to ensure that their behavior is not illegal. In doing so, without concrete knowledge of the law, people rely on their own sense of right and wrong. As a result, people remain largely ignorant of the law: this results in punishment when a person acted seemingly innocently, and exculpation at times when a person behaved in ways that were clearly not within the spirit of the law, but where “fair notice” requires that they should not be punished. Both are legal fictions: in the first case, people do not know the details of the law, and in the second case, “fair notice” is a fiction because the person did not act in reliance on the law. As a result, the law is applied inconsistently, and relies on people filling it in the gap with some form of morality, or a sense of what “should” be or “probably” is illegal. The problem there is that this assumes some universal mral sense, or universal code of ethics that is equally untenable. The law should not trust a sense of morality for it to accomplish its practical purposes, and it isn’t fair to convict on the basis of different ideas of right and wrong. A system in which we are assumed to know the law, can nonetheless be convicted for following it to the letter, and where cases instead turn on moral calculations (he “should have known” what he was doing was wrong, or “knew it was illegal” in general, which a person would only really know based on some sense of morality) is not a consistent system. | >
> | What can be drawn from these inconsistent decisions? The law holds us to a double standard in which sometimes we are expected to know the law, and other times are punished for reliance. The purpose of a theory of presumed knowledge might be to encourage people to actually know¬ and learn the law; in reality, the doctrine of ignorance being no excuse prompts people to act in ways to ensure that their behavior is not illegal. In doing so, people rely on their own sense of right and wrong. In this way, the law relies on people filling in the gap of knowledge with some form of morality or a sense of what “should” or “probably” is illegal (which can only come from some inner conscience, if not external rules), or assumes that there are circumstances under which it is universally true that a person would be inclined to investigate the law further. The problem there is that this assumes some universal moral sense, or universal code of ethics that is untenable. | | | | |
<
< | If there can be no punishment without law, the law must speak clearly: the first step is in eliminating legal fictions and accepting that the law is not widely known.
We are expected to “know” the law, and cannot be punished without law: but where the law on what we are expected to know is so inconsistent and applied without an even hand, it is an impossible expectation.
What fills the gap when we aren't ACTUALLY supposed to know the law? A moral sense; some idea of universal ethics that we should "know" and therefore act accordingly when something doesn't "seem" right. ie when we know it reeks of something illegal, even if we don't know the law. Is it fair for the law to trust a sense of morality, and rely on that and convict on that basis?
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable.
To restrict access to your paper simply delete the "#" on the next line:
# * Set ALLOWTOPICVIEW = TWikiAdminGroup, JessicaHallett
Note: TWiki has strict formatting rules. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of that line. If you wish to give access to any other users simply add them to the comma separated list | | | \ No newline at end of file | |
>
> | As a result, there is punishment when a person acted seemingly lawfully, and exculpation at times when a person behaved in ways that were clearly beyond the spirit of the law, but where “fair notice” requires that they should not be punished. Both are legal fictions: in the first case, people do not know the details of the law, and in the second case, “fair notice” is a fiction because the person did not act in reliance on the law. This combination of legal fictions, inconsistent requirements, and the substitution of law with morality in cases where lack of knowledge leaves a gap to be filled combine for an unclear system. If there is to be no punishment without law, the law must speak clearly: the legal fictions need to be eliminated, and a clear, practical development of what we are expected to know and are entitled to rely on needs to emerge. If, like Mr. Stack, we follow all of the rules, and still get burned, the law sets forth an impossible double standard. |
|
|
JessicaHallettFirstPaper 3 - 26 Feb 2010 - Main.JessicaHallett
|
| |
| META TOPICPARENT | name="FirstPaper" |
|---|
Fleshed-out Outline | | | -- By JessicaHallett - 25 Feb 2010 | |
<
< | A. Joseph Stack
In a letter written shortly before his death (a death begun not so shortly before it actually occurred), Joseph Stack wrote of the tax activities that led to run-ins with the IRS “We took a great deal of care to make it all visible, following all of the rules, exactly the way the law said it was to be done. “ Mr. Stack educated himself on the relevant law, and in reliance on it, took steps to avoid paying taxes. However, he soon found out that “there are two interpretations’ for every law; one for the very rich, and one for the rest of us.” According to his letter, Mr. Stack paid for this apparent transgression with tens of thousands of dollars and years of his life. A situation where a person who makes every effort to stay within the boundaries of the law, by learning it closely and following it precisely, yet it punished for breaking it, warrants a look at the way we are supposed to know and follow the law?? | >
> | Joseph Stack
In a letter written shortly before his death, Joe Stack wrote of the tax activities that led to run-ins with the IRS: “We took a great deal of care to make it all visible, following all of the rules, exactly the way the law said it was to be done.“ Mr. Stack educated himself on the relevant law, and in reliance on it, took steps to avoid paying taxes. However, he soon found out that “there are two ‘interpretations’ for every law; one for the very rich, and one for the rest of us.” According to his letter, Mr. Stack paid for this apparent transgression with tens of thousands of dollars and years of his life. A situation where a person who makes every effort to stay within the boundaries of the law, by learning it closely and following it precisely, yet is punished for breaking it, warrants a look at the what the law expects and assumes about knowledge of it, and what people actually know in reality. | | | Knowledge of the Law: Doctrinal Clash
Two Doctrines | |
<
< | It is first necessary to consider two doctrines to understand how a presumed knowledge of the law is both a fiction and an impractical, illogical requirement. The first is nulla poena sine lege, the principle that one cannot be punished for something that is not against the law. Secondly, the law generally does not provide an excuse for ignorance of the law: ignorantia legis neminem excusat. The very existence of a law is seen as “notice” that some activity is prohibited; as such, the law assumes that the law is known by all. Insofar as ignorance of the law could negate requisite mens rea for a given offense, it is permissible; however, that is merely restating the notion that there is no guilt without a culpable mental state. Ignorance of the law, by itself, is no excuse. | >
> | It is useful to consider two doctrines to understand that a presumed knowledge of the law is both a fiction and an impractical, illogical requirement. The first is nulla poena sine lege, the principle that one cannot be punished for something that is not against the law. Secondly, the law generally does not provide an excuse for ignorance of the law: ignorantia legis neminem excusat. The very existence of a law is seen as “notice” that some activity is prohibited; as such, the law assumes that the law is known by all. The two come into conflict, however, when people are punished for reliance on the very law they are expected to know. | | | An Irreconcilable Tension | |
<
< | Mr. Stack’s case provides a compelling example of how the two doctrines can come sharply to a head: how can a person be expected to know the law to the letter, but then be punished for relying on the same? In his case, strict reliance on the law is nonetheless illegal (at least to one “interpretation”). This means that a person cannot rely on the body of the law to perform in accordance. In fact, the only way a truly-informed person can be expected to conform in the correct way must be in knowing that his actions were somehow wrong. There are instances when a person is found guilty of an expanded or new law when he should reasonably have expected that it would be expanded- thus, he has “notice” in that he should have known. Finally, there are times when a person can be convicted for purposefully getting around the law; again, this would inject a sense of morality (not the law) as a guide to how to behave. | >
> | Mr. Stack’s case provides a compelling example of how the two doctrines can come sharply to a head: how can a person be expected to know the law to the letter, but then be punished for relying on the same? In his case, strict reliance on the law is nonetheless illegal (at least according to one “interpretation”). This means that a person cannot rely on the body of the law and perform in accordance with it. In fact, the only way a truly-informed person can be expected to conform in the correct way must be in knowing that his actions were somehow “wrong”. There are also instances when a person is found guilty of an expanded or new law when he should reasonably have expected that it would be expanded- thus, he has “notice” in that he should have known. Finally, there are times when a person can be convicted for purposefully getting around the law; again, this would inject a sense of morality (not the law) as a guide to how to behave. | | | Inconsistent Decisions | |
<
< | Some cases shed light on this tension between an obligation to know the law and reliance on the law. | | | | |
<
< | Bryan v United States: defendant had to know that conduct was unlawful, but not necessarily the existence of the statute under which he was charged. Circs showed he knew it was unlawful (from his behavior like shaving off guns’ serial numbers)- he acted with an “evil-meaning mind”- is this morality?
United States v Overholt: Defednant had to know they he was doing something unlawful, but the judge didn’t say the jury had to find he knew the specific law he was violating
United States v Liparota: Said that the defendant had to know the existence and meaning of the law his act violated.
When the word “knowing” is in the statute, courts reach varied conclusions. Sometimes, courts find that a person must “knowingly” do an act, regardless of knowledge of the law. (US v Inernational Minerals and Chemical Corp.)
US v Ansaldi: Intent to violate the law is not an element; doesn’t matter if he knew that the drug was illegal. | >
> | Some cases shed light on this tension between an obligation to know the law and reliance on the law, and there are inconsistencies in how the law expects us to act. In Bryan v. United States, the defendant had to know that his conduct was unlawful, but not the existence of the statute with which he was charged, to be convicted. Evidence suggested that he knew his behavior was unlawful (he shaved off guns’ serial numbers, for instance), and it was in acting with an “evil-meaning mind” that he was found guilty. In US v Liparota the defendant had to know the existence and meaning of the law his act violated. In Lambert the court held that the defendant had to have known of her duty to register as a felon to be convicted for failure to do so; Bryant, on the other hand, held that the defendant should have inquired into the law, and as such was convicted notwithstanding his ignorance of it. Dauray and Keeler both found against construing laws such that they would lead to convictions, where it would not be “fair notice” to do so. In stark contrast, Rogers held that despite defendant’s actions being subject to a law that would preclude a murder charge, he should have known that the law was changing in other jurisdictions, and thus should have expected his actions to be unlawful. | | |
The Legal Fiction of Knowledge of the Law: Conclusions | |
<
< | Purpose: in theory, it could be to make sure everyone actually knows the law. In reality, this is not the case, and true justification is in that the doctrine would prompt people to act according to their moral sense, in knowing that they could break the law. (So, do they have to trust that the law is moral?) | >
> | What can be drawn from these inconsistent decisions? Sometimes the law expects that we know it, and sometimes it punishes us for reliance. In theory, the purpose of presumed knowledge of the law might be to encourage people to actually know¬ and learn the law; in reality, the doctrine of ignorance being no excuse prompts people to act in ways to ensure that their behavior is not illegal. In doing so, without concrete knowledge of the law, people rely on their own sense of right and wrong. As a result, people remain largely ignorant of the law: this results in punishment when a person acted seemingly innocently, and exculpation at times when a person behaved in ways that were clearly not within the spirit of the law, but where “fair notice” requires that they should not be punished. Both are legal fictions: in the first case, people do not know the details of the law, and in the second case, “fair notice” is a fiction because the person did not act in reliance on the law. As a result, the law is applied inconsistently, and relies on people filling it in the gap with some form of morality, or a sense of what “should” be or “probably” is illegal. The problem there is that this assumes some universal mral sense, or universal code of ethics that is equally untenable. The law should not trust a sense of morality for it to accomplish its practical purposes, and it isn’t fair to convict on the basis of different ideas of right and wrong. A system in which we are assumed to know the law, can nonetheless be convicted for following it to the letter, and where cases instead turn on moral calculations (he “should have known” what he was doing was wrong, or “knew it was illegal” in general, which a person would only really know based on some sense of morality) is not a consistent system.
If there can be no punishment without law, the law must speak clearly: the first step is in eliminating legal fictions and accepting that the law is not widely known. | | | | |
<
< | As a result, we do not know the law, or how it is applied. It is a legal fiction that we know the law, yet it is not a benign legal fiction. | >
> | We are expected to “know” the law, and cannot be punished without law: but where the law on what we are expected to know is so inconsistent and applied without an even hand, it is an impossible expectation. | | | What fills the gap when we aren't ACTUALLY supposed to know the law? A moral sense; some idea of universal ethics that we should "know" and therefore act accordingly when something doesn't "seem" right. ie when we know it reeks of something illegal, even if we don't know the law. Is it fair for the law to trust a sense of morality, and rely on that and convict on that basis? |
|
|
JessicaHallettFirstPaper 2 - 26 Feb 2010 - Main.JessicaHallett
|
| |
| META TOPICPARENT | name="FirstPaper" |
|---|
| |
<
< | Initial thoughts | >
> | Fleshed-out Outline | | | | |
<
< | Why we punish
Deterrence
Still, we punish in the face of data that tells us deterrence doesn’t work. We punish in circumstances where it isn’t logical that deterrence will result.
Just desert
And yet, we punish A, who has served time for X crime, more than we normally would for Y crime, because of his history- so we are either punishing him for who he is (punishing a person for being ‘bad’- and isn’t this transcending the law to a realm of morality) or we are punishing him above his just desert (either adding punishment on to X crime of the past, or enlarging punishment for Y crime more than Y crime actually merits).
Incapacitation
But many crimes are not extremely violent. Further, we re-release prisoners, at which point they are influenced by the system and perhaps more likely to be violent (true?) or at the least able to be free to commit crimes again. If we followed this to its fullest, we would lock people away for life and be 100% sure to prevent recidivism.
Rehab??
Involuntary rehab/institutionalization is prison by another name; how do we justify this?
Death Penalty
“The man you kill is not the same man who committed the crime.”
What happened to ‘cruel and unusual? What about rampant discrimination?
Perceptions
Would we actually punish A, if we know no one would see or know?
Hypocrisy
We punish even when we think we might have acted the same way given the circumstances. Hypocrisy? Or necessary to uphold law/standards/perceptions of a moral code of a justice via the law?
It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted.
Paper Title | >
> | Following All of the Rules | | | -- By JessicaHallett - 25 Feb 2010 | |
<
< | Section I
Subsection A | >
> | A. Joseph Stack
In a letter written shortly before his death (a death begun not so shortly before it actually occurred), Joseph Stack wrote of the tax activities that led to run-ins with the IRS “We took a great deal of care to make it all visible, following all of the rules, exactly the way the law said it was to be done. “ Mr. Stack educated himself on the relevant law, and in reliance on it, took steps to avoid paying taxes. However, he soon found out that “there are two interpretations’ for every law; one for the very rich, and one for the rest of us.” According to his letter, Mr. Stack paid for this apparent transgression with tens of thousands of dollars and years of his life. A situation where a person who makes every effort to stay within the boundaries of the law, by learning it closely and following it precisely, yet it punished for breaking it, warrants a look at the way we are supposed to know and follow the law?? | | | | |
>
> | Knowledge of the Law: Doctrinal Clash | | | | |
<
< | Subsub 1 | | | | |
<
< | Subsection B | >
> | Two Doctrines
It is first necessary to consider two doctrines to understand how a presumed knowledge of the law is both a fiction and an impractical, illogical requirement. The first is nulla poena sine lege, the principle that one cannot be punished for something that is not against the law. Secondly, the law generally does not provide an excuse for ignorance of the law: ignorantia legis neminem excusat. The very existence of a law is seen as “notice” that some activity is prohibited; as such, the law assumes that the law is known by all. Insofar as ignorance of the law could negate requisite mens rea for a given offense, it is permissible; however, that is merely restating the notion that there is no guilt without a culpable mental state. Ignorance of the law, by itself, is no excuse. | | | | |
>
> | An Irreconcilable Tension
Mr. Stack’s case provides a compelling example of how the two doctrines can come sharply to a head: how can a person be expected to know the law to the letter, but then be punished for relying on the same? In his case, strict reliance on the law is nonetheless illegal (at least to one “interpretation”). This means that a person cannot rely on the body of the law to perform in accordance. In fact, the only way a truly-informed person can be expected to conform in the correct way must be in knowing that his actions were somehow wrong. There are instances when a person is found guilty of an expanded or new law when he should reasonably have expected that it would be expanded- thus, he has “notice” in that he should have known. Finally, there are times when a person can be convicted for purposefully getting around the law; again, this would inject a sense of morality (not the law) as a guide to how to behave. | | | | |
<
< | Subsub 1 | >
> | Inconsistent Decisions
Some cases shed light on this tension between an obligation to know the law and reliance on the law. | | | | |
>
> | Bryan v United States: defendant had to know that conduct was unlawful, but not necessarily the existence of the statute under which he was charged. Circs showed he knew it was unlawful (from his behavior like shaving off guns’ serial numbers)- he acted with an “evil-meaning mind”- is this morality?
United States v Overholt: Defednant had to know they he was doing something unlawful, but the judge didn’t say the jury had to find he knew the specific law he was violating
United States v Liparota: Said that the defendant had to know the existence and meaning of the law his act violated.
When the word “knowing” is in the statute, courts reach varied conclusions. Sometimes, courts find that a person must “knowingly” do an act, regardless of knowledge of the law. (US v Inernational Minerals and Chemical Corp.)
US v Ansaldi: Intent to violate the law is not an element; doesn’t matter if he knew that the drug was illegal. | | | | |
<
< | Subsub 2 | | | | |
>
> | The Legal Fiction of Knowledge of the Law: Conclusions | | | | |
<
< | Section II | >
> | Purpose: in theory, it could be to make sure everyone actually knows the law. In reality, this is not the case, and true justification is in that the doctrine would prompt people to act according to their moral sense, in knowing that they could break the law. (So, do they have to trust that the law is moral?) | | | | |
<
< | Subsection A | >
> | As a result, we do not know the law, or how it is applied. It is a legal fiction that we know the law, yet it is not a benign legal fiction. | | | | |
<
< | Subsection B | >
> | What fills the gap when we aren't ACTUALLY supposed to know the law? A moral sense; some idea of universal ethics that we should "know" and therefore act accordingly when something doesn't "seem" right. ie when we know it reeks of something illegal, even if we don't know the law. Is it fair for the law to trust a sense of morality, and rely on that and convict on that basis? | | |
|
|
|
JessicaHallettFirstPaper 1 - 25 Feb 2010 - Main.JessicaHallett
|
|
>
> |
| META TOPICPARENT | name="FirstPaper" |
|---|
Initial thoughts
Why we punish
Deterrence
Still, we punish in the face of data that tells us deterrence doesn’t work. We punish in circumstances where it isn’t logical that deterrence will result.
Just desert
And yet, we punish A, who has served time for X crime, more than we normally would for Y crime, because of his history- so we are either punishing him for who he is (punishing a person for being ‘bad’- and isn’t this transcending the law to a realm of morality) or we are punishing him above his just desert (either adding punishment on to X crime of the past, or enlarging punishment for Y crime more than Y crime actually merits).
Incapacitation
But many crimes are not extremely violent. Further, we re-release prisoners, at which point they are influenced by the system and perhaps more likely to be violent (true?) or at the least able to be free to commit crimes again. If we followed this to its fullest, we would lock people away for life and be 100% sure to prevent recidivism.
Rehab??
Involuntary rehab/institutionalization is prison by another name; how do we justify this?
Death Penalty
“The man you kill is not the same man who committed the crime.”
What happened to ‘cruel and unusual? What about rampant discrimination?
Perceptions
Would we actually punish A, if we know no one would see or know?
Hypocrisy
We punish even when we think we might have acted the same way given the circumstances. Hypocrisy? Or necessary to uphold law/standards/perceptions of a moral code of a justice via the law?
It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted.
Paper Title
-- By JessicaHallett - 25 Feb 2010
Section I
Subsection A
Subsub 1
Subsection B
Subsub 1
Subsub 2
Section II
Subsection A
Subsection B
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable.
To restrict access to your paper simply delete the "#" on the next line:
# * Set ALLOWTOPICVIEW = TWikiAdminGroup, JessicaHallett
Note: TWiki has strict formatting rules. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of that line. If you wish to give access to any other users simply add them to the comma separated list |
|
|