Matthew Babb

An official misrepresentation of the law occurs when an official, acting as an agent of the state, represents what is legal or not in an erroneous or misleading way. Should reliance on such misrepresentations excuse one from criminal responsibility? American courts presently recognize two official misrepresentation defenses: Entrapment by Estoppel and Public Authority. However, there is disagreement about what constitutes these defenses and what their limits are. Part of the confusion surrounds why these defenses are justified at all, especially given the general principle ignorantia juris non excusat. We propose an answer to this justification question: these defenses are justified because official misrepresentations preclude knowledge of the illegality of the acts in question. It is not simply that someone on the receiving end did not know; they could not know. We develop this account, linking it to due process and fairness, and then use it to clarify Entrapment by Estoppel and Public Authority and argue both should be subject to important restrictions.

My aim in this essay is to look back on and critically examine Tomis Kapitan’s (1949–2016) views of indexical language and indexical thought. Despite the novelty and insightfulness of Kapitan’s writings on these topics, his work has largely gone ignored. I believe this to be a tragic oversight, especially given the renewed interest in whether any of our thoughts might be essentially indexical. To be sure, there may be a reason for this oversight. In particular, Kapitan’s views are complex and his writing often dense. So my hope is to do justice to his work on indexicality not only by making it more accessible but also by examining it in such a way as to demonstrate its strength and plausibility.

Cappelen and Dever challenge the widely accepted idea that some key aspect of intentional action is essentially indexical. They argue that the classical arguments for this coming from Perry are in fact arguments for a different phenomenon: the opacity of explanatory contexts. I agree with Cappelen and Dever that what Perry says about the ineliminability of indexical terms from explanations of intentional action fails to amount to an argument for this indexicality being essential. But this should not lead us to be sceptics. In this paper, I present a different argument for the essential indexicality of intentional actions. The key premise of this argument is that intentions themselves are essentially indexical. I provide evidence for this premise and defend it against potential criticism. I also show how the essential indexicality of intentions can be used to vindicate Perry's original claims about the essential indexicality of certain beliefs and desires.