The jurisprudence of willfulness: An evolving theory of excusable ignorance

Ignorantia legis non excusat-ignorance of the law does not excuse-is a cent uries-old criminal law maxim familiar to lawyer and layperson alike. Under the doctrine, an accused finds little protection in the claim "But, I did n ot know the law," for all are presumed either to be familiar with the law's commands or to proceed in ignorance at their own peril. The ignorant must be punished along with the knowing, the maxim teaches, to achieve a better educated and move law-abiding populace and to avoid the easy-to-assert and difficult-to-dispute claim of ignorance that would otherwise flow from the lips of any person facing criminal punishment. Despite this country's long-standing allegiance to the hoary maxim, over th e last century, and in particular over the last decade, the courts have ser iously eroded the ignorantia legis principle by frequently construing the m ens rea term "willfully" to require proof of an accused's knowledge of the law. The erosive effect that these constructions have had on the ignorantia legis maxim is referred to in this Article as the "jurisprudence of willfu lness." Professor Davies demonstrates that, contrary to the maxim, the numb er of federal criminal statutes that have been construed to impose such a h eightened mens rea requirement is already quire large. The Article reveals that, if the courts continue to employ their current interpretive approach to the term "willfully," at least 160 additional federal statutes containin g the term are at risk of similar treatment. The author argues that contemporary constructions of the troublesome scient er term to impose a knowledge of the law element have been grounded on doub tful, unchallenged logic and have bequeathed a legacy of grave interpretive confusion. Professor Davies maintains that much of the "jurisprudence of w illfulness" is inimical to congressional judgments and therefore, violative of rule of law and separation of powers principles. The Article urges a re turn to the ignorantia legis principle in all cases in which a clear legisl ative intent to abandon the maxim when employing the term "willfully" is mi ssing.