What Mistake Of Law Just Might Be

Abstract

This Article examines and evaluates a distinctive, increasingly popular account of the Mistake of Law doctrine. The doctrine, deeply ingrained in American criminal law, is at the same time notoriously unclear in its scope, content, and application. A growing number of legal theorists have criticized the traditional interpretation of the doctrine; legal moralists in particular have argued that this account is conceptually confused. Because the doctrine’s use of a strict liability punishment regime does not incentivize individuals to learn the law as well as a negligence regime might, legal moralists argue that the doctrine cannot be explained by a desire to incentivize legal knowledge. In evaluating this argument, the Article defends the traditional account, often identified with the liberal positivism of Justice Holmes. The Article advances three main arguments. First, legal moralism’s claim that a negligence standard is more effective than a strict liability standard in incentivizing individuals to learn the law is false: the safe harbor provision of a negligence rule acts as an insurance effect, disincentivizing individuals to learn the law. Second, legal moralism assumes that the moral content of the criminal law is determinate, and that agents have perfectly rational, objective motivational sets. These are illicit assumptions that result in a flawed argument. Finally, the Article contends that legal moralism misinterprets the structural core of the traditional account: properly understood, the Mistake of Law doctrine employs a negligence–strict liability hybrid, and is thus more sophisticated than legal moralists realize. The Article concludes that, contrary to what a surprising number of criminal law theorists have come to accept, legal moralism fails to make a plausible case against the traditional account of the Mistake of Law doctrine.