[EL] Check out Study shows who breaks campaign laws - The Pueblo Chieftai...

Wed Aug 10 13:26:37 PDT 2011

                Again, I think knowledge of an effect can only be strong evidence of purpose to cause that effect when there are no other plausible effects.

                To give an example, I don’t bowdlerize material that I quote in class.  If I discuss a case in which someone is called a “God damned racketeer” (Chaplinsky) or a reference is made to “niggers” (Brandenburg), I include that in my readings, and if the quoted material is relevant to class discussion, I’ll say it in class.  My purpose is not to offend people who are offended by these terms, for instance people who view such references to “God” as blasphemy; it’s to discuss what was actually said, without euphemism or circumlocution.  That purpose doesn’t change when some student tells me that he is offended by this; I continue to quote the material accurately, not for the purpose of offending the student, but for the purpose of discussing what was actually said, without euphemism or circumlocution.  You can agree or disagree with whether I should continue to do this, but I don’t think that you can infer a purpose to offend from prior warning that some are offended.

                The same is true in a large range of other situations – I gave the example of treason law, for instance, where purpose to aid the enemy (and not just the knowledge that one is aiding the enemy) is required for criminal liability; but there are many others.

                Eugene

From: BZall at aol.com [mailto:BZall at aol.com]
Sent: Wednesday, August 10, 2011 11:42 AM
To: Volokh, Eugene; law-election at uci.edu
Subject: Re: [EL] Check out Study shows who breaks campaign laws - The Pueblo Chieftai...

What if one sees the effect of one's past actions (in this case, creating a regulatory scheme which has the effect of causing hardship to those without the means to hire capable counsel), decries that effect, and then does the same thing again?

Like the ABA Administrative Law Section, which got the ABA to enact a resolution to create a lobbying regulatory agency similar to the FEC, despite having been told by the ABA Tax Section and its Exempt Organization Committee's Political Subcommittee that the result will be the same as creating the FEC?

http://www.abanow.org/wordpress/wp-content/files_flutter/1312830542104bREV.pdf

It's hard enough to encourage small exempt organizations to exercise their legitimate rights to speak truth to power, to assemble to be heard, and to petition the government for redress of grievances in light of incredibly complicated IRS rules differentiating issue advocacy from electioneering (see, e.g., Rev. Rul  2004-6, with 14 factors to consider). If this proposal is put in place, there likely will be even more rules than there are now under the IRC and the LDA. Does anyone seriously think that a new regulatory agency will REDUCE complexity?

There are, arguably, many possible purposes and many possible consequences of such a proposal, but clearly there was foreknowledge that at least one might be the creation of a barrier to the rights of association and petition. At what point does "purpose" get inferred from prior warning?

Barnaby Zall
Of Counsel
Weinberg, Jacobs & Tolani, LLP
11300 Rockville Pike, Suite 1200
Rockville, MD 20852
301-231-6943 (direct dial)
www.wjlaw.com<http://www.wj/>
bzall at aol.com

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In a message dated 8/10/2011 2:13:50 P.M. Eastern Daylight Time, VOLOKH at law.ucla.edu writes:
                Let me offer a friendly amendment:  One can indeed assume (as a factual matter) that people intend – in the sense of purposefully aim at – the natural and probable consequences of their acts, but only if there are no other natural and probable consequences of note.  Thus, even in criminal law, if I point a loaded gun at someone and pull the trigger, a jury is entitled (though not required) to infer that I intended to kill the person, or at least seriously wound him, since that’s the main significant consequence of my action – though even there one could imagine circumstances that would rebut the inference.

                But such an inference stops being sensible when an action has many natural and probable consequences.  There, as Brian points out, one could act with the purpose of creating one consequence, and in spite of (i.e., without the purpose of creating) another consequence.  Thus, to consider a crime that famously turns on purpose – treason – say that I organize a strike during wartime, knowing that it will foreseeably interfere with the war effort and help the enemy.  That might be treason if I’m doing it with the purpose of helping the enemy, but it’s not if I’m doing with the purpose of getting better wages for members of my union, even if I know that it likely will help the enemy.  Nor would it be sound for a jury to infer a purpose to help the enemy simply because that is a natural and probable consequence of my actions:  Because there are two natural and probable consequences (raising wages, and helping the enemy), the mere act does not tell us what its purpose likely was.

                Eugene

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