The Publicity of Law and the Regulatory State
David J. Luban
Georgetown University Law Center
Journal of Political Philosophy, Vol. 10, p. 296, 2002
Theorists usually agree that the rule of law requires that the law be public, that is, available so that those whose conduct it governs may discover what it requires of them. In the regulatory state, however, every regulation is likely to be lost in a mountain of other regulations. This would not violate the publicity condition if regulated conduct invariably carries telltale signs that it is likely to be subject to legal requirements but in a technological society even this weaker condition may not be met, because a great deal of seemingly-innocuous conduct may be regulated. The present paper examines the publicity problem raised by regulation in a technological society. It does so by examining the U.S. Supreme Court's mens rea jurisprudence for regulatory crimes, on the question of whether knowledge that one is violating a regulation is an element of the offense. The chief cases are Balint, Freed, United States Minerals, Liparota, Staples, Ratzlaf, and Cheek, along with the 9th Circuit's Weitzenhof decision. As I analyze them, the first four of these cases set out a "signaling theory" of publicity, according to which knowledge that one is violating a regulation need not be proven if the conduct "signals" its own regulability. Selling narcotics, possessing hand grenades, and shipping sulfuric acid are all the sort of thing that one should anticipate are regulable (thus Balint, Freed, and United States Minerals); trafficking in food stamps is not (thus Liparota). However, in Staples the Supreme Court held that possessing a machine gun is not signaling behavior, because so many Americans regard gun ownership as innocent activity. Similarly, Ratzlaf remarks that structuring financial transactions to evade federal reporting requirements can be innocent behavior, apparently because so many Americans regard regulatory dodging as a legitimate pastime. These decisions pose a complication for the signaling theory: Our intuitions about what sort of conduct is intrinsically regulable are affected by the expectations of those around us. Thus, the phenomenon of social cognition creates the possibility of a cultural excuse for regulatory crime. Furthermore, it seems clear that many defendants do not recognize the non-innocence of their behavior because (like the tax resister Cheek) they do not want to recognize it in which case the cultural excuse becomes more like a cultural veto, by which those who dislike a regulation may nullify it (at least once). The paper canvasses several possible solutions to this difficulty, concluding that the needs of legitimate regulation outweigh the requirement of publicity.
Date posted: January 8, 2003
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