Ignorance of the Law and the Regulatory State

In “Rethinking Presumed Knowledge of the Law in the Regulatory Age,”[1] Michael Cottone analyzes ignorantia legis, the doctrine that ignorance of the law is no defense, and questions whether it can be justly applied in an age where administrative regulation has made thousands of acts into crimes, including acts which reasonable people might not be expected to know were unlawful:

Billy, a high-school senior who just turned eighteen, finds a redtailed hawk talon in the parking lot of his school. He has never heard of red-tailed hawks or the Migratory Bird Act, and he does not know that selling dead birds or bird parts can be illegal in some circumstances. Billy’s friend, whose parents own a pet store, is interested in wildlife and collects snakeskins, sharks’ teeth, and various types of animal bones. Billy decides that his friend may be interested in the talon and offers to trade it for a goldfish from the store. Billy’s friend agrees. When a family friend, an agent for the United States Fish and Wildlife Service, sees the talon and inquires, she learns that it came from Billy. Billy is arrested and charged with bartering with migratory bird parts in violation of 16 U.S.C. §§ 703 and 707(a).

A so-called “regulatory crime,” bartering with or selling migratory birds or bird parts in violation of 16 U.S.C. §§ 703 and 707(a) carries no mens rea requirement for any element; strict liability applies. That is, if a person barters with or sells a migratory bird or its parts—regardless of whether she knew it was a migratory bird or a part of a migratory bird—she has met the requirements of the crime. Assuming that they are found guilty, Billy, Eric, and Diane will all be subject to criminal penalties, each facing up to a six-month prison sentence and $15,000 in fines. While this may seem incongruous given the differences in what they each knew about the legality of their conduct, under the doctrine of ignorantia legis, their knowledge or lack of knowledge of the illegality of their acts will have no bearing on whether they are guilty of the offense. In this article, I will examine the doctrine of ignorantia legis, or presumed knowledge of the law, as it functions in the current milieu of American criminal justice, the age of the regulatory crime. Much ink has been spilled over this doctrine, and many pieces argue against ignorantia legis, hinting at normative values of fairness and economic efficiency.[2]

In a related vein, Professor Glenn Reynolds writes in USA Today that “You are Probably Breaking the Law Right Now”:

While a century or two ago nearly all crime was traditional common-law crime — rape, murder, theft and other things that pretty much everyone should know are bad — nowadays we face all sorts of "regulatory crimes" in which intuitions of right and wrong play no role, but for which the penalties are high.

If you walk down the sidewalk, pick up a pretty feather, and take it home, you could be a felon — if it happens to be a bald eagle feather. Bald eagles are plentiful now, and were taken off the endangered species list years ago, but the federal law making possession of them a crime for most people is still on the books, and federal agents are even infiltrating some Native-American powwows in order to find and arrest people. (And feathers from lesser-known birds, like the red-tailed hawk are also covered). Other examples abound, from getting lost in a storm and snowmobiling on the wrong bit of federal land, to diverting storm sewer water around a building.


To solve this problem we need for judges to abandon the presumption that people know the law, at least where regulatory crimes are concerned, and require some proof that the accused knew or should reasonably have known that his conduct was illegal. Alternatively, Congress should adopt legislation requiring such proof. (And I would favor allowing defendants in any action brought by the federal government — civil or criminal — to have the option of arguing to the jury that the government's action against them is unfair or biased, with the charges dropped and legal fees being charged to the government if the jury agrees.)

Under the vagueness doctrine, a law is void if a person of reasonable intelligence would have to guess at its meaning, because it would be unfair to punish someone for violating a law that cannot be understood. It seems just as unfair to punish people for violating a law that they couldn't reasonably be expected to know about.

Law that can't be known is no law at all. If we wish to remain a nation of laws, Congress and the courts need to address this problem, before it's too late.

[1] Cottone, Michael Anthony, Rethinking Presumed Knowledge of the Law in the Regulatory Age (Winter 2015). 82 Tenn. L. Rev. 137 (2015). Available at SSRN: http://ssrn.com/abstract=2584034
[2] Id. at 2 (citations omitted).