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09/28/2016

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Under the “rule of lenity,” ambiguous criminal statutes are construed in favor of defendants. Skilling v. United States, 561 U.S. 358, 410 (2010). See also United States v. Lanier, 520 U.S. 259, 266 (1997) (“[D]ue process bars courts from applying a novel construction of a criminal statute to conduct that neither the statute nor any prior judicial decision has fairly disclosed to be within its scope.”)

Hi Bob-

Thanks for this. I think he had in mind works by philosophers, working within moral and political theory, rather than legal decisions and statues. My understanding is that he is trying to make a point about some non-legal bases for thinking that people find it unfair or objectionable to impose costs on people without adequate prior warning.

Like Rosen?
"The agent is culpable for his bad action only if that bad action is, or derives from, an episode of genuine akrasia...Culpable bad actions have a distinctive sort of causal history — an inculpating history — in which the act either is, or derives from, an episode of genuine akrasia." No akrasia without knowledge of badness?

David Brink and Dana Nelkin, in _Oxford Studies in Agency and Responsibility_ 1, basically offer that line, claiming that it's wrong to punish/blame those those who lacked fair opportunity to avoid the wrongdoing that got them in trouble. Their focus is on putting together an architecture of *responsibility*, and that includes, for them, criminal responsibility. The article is called, "Fairness and the Architecture of Responsibility."

Neil Levy's recent book on consciousness as a necessary condition for responsibility might leave room open for the distinction between knowing some rule in advance and yet (because of brain pathology or whatever) not being conscious of such a rule while one perpetrates some ostensibly criminal act. FWIW

Similar to David's point, you might point your colleague to Chapter 5 of Neil Levy's Hard Luck.

This is a late addition, but in Chapter 1 of Patterson and Pardo's Minds, Brains, and Law they specifically argue a rule must be consciously known to be followed. The argument starts on page 12.

Thanks everyone!

-m

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