Rethinking Presumed Knowledge Of The Law In The Regulatory Age

by Michael Cottone

Diana is a professional hunter and trapper who sells pelts, feathers, and other parts of animals from the animals she captures to supplement her income.  Recently, Diana trapped and killed a red-tailed hawk. The red-tailed hawk is protected under the Migratory Bird Act, and Diana knows that both the killing and the selling of red-tailed hawks violate federal law. Accordingly, due to its absence from the legitimate market, Diana knows she could sell the bird for a significant amount of money. Through a mutual friend, Diana learns of a taxidermy collector who wants a red-tailed hawk to display. She decides to meet with the collector and offers to sell the bird to him. Much to Diana’s chagrin, however, the collector turns out to be an undercover agent for the United States Fish and Wildlife Service. He promptly arrests her, and the local United States Attorney ultimately charges Diana with selling migratory birds or bird parts in violation of 16 U.S.C. §§ 703 and 707(a).

On his way home from work, Eric sees a dead red-tailed hawk on the side of the road. An avid bird-watcher, Eric recognizes and properly identifies the bird. Eric knows about the Migratory Bird Act, including that it provides criminal sanctions for selling dead migratory birds, but he does not know that the Act protects red‑tailed hawks. Eric’s cousin makes jewelry that incorporates various kinds of feathers, including those from birds protected by the Act. Eric’s cousin offers to buy the red-tailed hawk, and Eric agrees to sell it. When Eric’s cousin is investigated for violating the Act, Eric becomes implicated as a supplier and is arrested and charged with selling migratory birds or bird parts in violation of 16 U.S.C. §§ 703 and 707(a).

Billy, a high-school senior who just turned eighteen, finds a red-tailed 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.  With this article, I intend to formalize and synthesize these discussions, approaching the problem explicitly from both perspectives. As a framework for evaluating the doctrine, I will apply both Lon Fuller’s idea of “internal morality of the law” and general principles of economic analysis of law. While I do not subscribe completely to either view for all purposes, my intent is to demonstrate that the current application of presumed knowledge of the law is extremely troublesome under at least two distinct methods of evaluating law, indicating a strong need for reconsideration of the doctrine. Part II of this article gives an overview of the doctrine of presumed knowledge of the law in the context of the regulatory state, ultimately arguing that it pervades the current legal system. Part III contains the two critiques of the doctrine based on Fuller’s “internal morality of the law” and on the economic analysis of law, determining that the current application of ignorantia legis is suspect under both. Finally, the Article concludes by synthesizing these arguments and offering a few thoughts on the doctrine moving forward.


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