Beyond Blame—Mens Rea and Regulatory Crime

Abstract:     
In the first part of this Article, the Author briefly outlines the conceptual underpinnings of the common law approach to mens rea, with its blame focus, and the Supreme Court's early efforts to develop a different approach in interpreting regulatory criminal statutes. The Author begins the second part of this Article with Lambert v. California, in which the Court staked out the constitutional limits for the employment of strict liability in public welfare or regulatory crimes, and, first employed notice-based mens rea. This part goes on to examine the ensuing cases in which the Court, at least implicitly, fleshes out the notice analysis that should guide the courts in deciding whether Congress intended strict liability or some level of mens rea in enacting regulatory criminal statutes. The Author concludes with Liparota v. United States, the case in which the Court departed from the emerging construct, which had distinguished blame-based and notice-based mens rea. This part then charts the doctrinal confusion that has resulted from this conflation of blame and notice in the Court's mens rea analysis, confusion that is apparent not only in its own cases but also those of the circuit courts as they confront this "vexatious problem."

Number of Pages in PDF File: 72

Keywords: mens rea, blame, regulatory crime, regulatory criminal statutes, criminal law

Accepted Paper Series