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Ignorance Of Law Is An Excuse - But Only For The Virtuous, Dan M. Kahan
Ignorance Of Law Is An Excuse - But Only For The Virtuous, Dan M. Kahan
Michigan Law Review
It's axiomatic that "ignorance of the law is no excuse." My aim in this essay is to examine what the "mistake of law doctrine" reveals about the relationship between criminal law and morality in general and about the law's understanding of moral responsibility in particular. The conventional understanding of the mistake of law doctrine rests on two premises, which are encapsulated in the Holmesian epigrams with which I've started this essay. The first is liberal positivism. As a descriptive claim, liberal positivism holds that the content of the law can be identified without reference to morality: one needn't be a …
Deterrence's Difficulty, Neal Kumar Katyal
Deterrence's Difficulty, Neal Kumar Katyal
Michigan Law Review
We all crave simple elegance. Physicists since Einstein have been searching for a grand unified theory that will tie everything together in a simple model. Law professors have their own grand theories - law and economics's Coase Theorem and constitutional law's Originalism immediately spring to mind. Criminal law is no different, for the analogue is our faith in deterrence - the belief that increasing the penalty on an activity will mean that fewer people will perform it. This theory has much to commend it. After all, economists and shoppers have known for ages that a price increase in a good …