Gideon Yaffe

Defendants who are being tried for accepting a temptation issued by the government sometimes employ the entrapment defense. Acquittal of some of them is thought to be justified either on the grounds that culpability was undermined by the temptation or on the grounds that the government acted objectionably in issuing the temptation . Advocates of the objective approach often criticize those who employ the subjective by citing what is here called “the problem of private entrapment”: we don’t grant a defense to those who accept temptations issued by private parties, and so it can’t be, it is claimed, that temptation undermines culpability. This paper argues that there is a difference in culpability between a defendant who accepts a government-issued temptation and a defendant who accepts a temptation issued by a private party. This claim is supported by identifying a necessary condition for desert of legal punishment and arguing that the privately entrapped satisfy that condition while the governmentally entrapped do not. The difference, it is argued, is rooted in the fact that the government aims to cause the defendant to act illegally, while private parties, except in extraordinary cases, aim only to cause the defendant to act in a way that happens to be illegal. The paper also argues that, despite appearances to the contrary, advocates of the objective approach also encounter the problem of private entrapment

This paper is concerned to bring out the philosophical contribution that Thomas Reid makes in his discussions of promising. Reid discusses promising in two contexts: he argues that the practice of promising presupposes the belief that the promisor is endowed with what he calls 'active power' , and he argues against Hume's claim that the very act of promising—and the obligation to do as one promised—are "artificial," or the products of human convention . In addition to explaining what Reid says in each of these two contexts, the paper demonstrates that the two discussions are linked. It is, in part, because he thinks that promises are a special kind of act —performable solely through the exercise of our native, natural capacities—that he thinks that the practice of promising presupposes active power. Towards this end, the paper explains how Reid conceives of active power and explains his concept of a social act. The paper argues that, when considered as part of a single, unitary conception of the nature of promises, Reid's two discussions provide important insights into the nature of promising, particularly with regard to the sense in which promisory obligations are conditional: they are conditional upon a rather short list of circumstances that are not within our power—a shorter list than those on which other obligations are conditional

Criminal law casebooks and treatises frequently mention the possibility that criminal liability for possession is inconsistent with the Voluntary Act Requirement, which limits criminal liability to that which includes an act or an omission. This paper explains why criminal liability for possession is compatible with the Voluntary Act Requirement despite the fact that possession is a status. To make good on this claim, the paper defends the Voluntary Act Requirement, offers an account of the nature of omissions of the kind that need be included in that for which criminal liability is imposed in the absence of a voluntary act, and argues that possession is a status that is constituted in part by an omission of this sort. The result is that to hold people criminally liable for possession is to hold them criminally liable both for a status and for an omission, an omission that is part of what it is to have that status. The paper also distinguishes possession from vagrancy, which is not a proper object of criminal liability, precisely because of constraints placed by the Voluntary Act Requirement. And the paper argues that possession incident to dispossession is not a proper object of criminal liability because it does not involve an omission of the kind that other forms of possession involve.

Under the “Willful Ignorance Principle,” a defendant is guilty of a crime requiring knowledge he lacks provided he is ignorant thanks to having earlier omitted inquiry. In this paper, I offer a novel justification of this principle through application of the theory that knowledge matters to culpability because of how the knowing action manifests the agent’s failure to grant sufficient weight to other people’s interests. I show that, under a simple formal model that supports this theory, omitting inquiry manifests precisely the same degree of disregard of others’ interests as manifested in knowingly acting criminally. Several surprising implications of this view are described, including that when the agent’s method of inquiry has a non-zero false positive rate, his omission of inquiry does not make the same contribution to his culpability as knowledge, while it does, by contrast, when the false negative rate is non-zero.