Cheating

Law and Philosophy

Volumn 23, Issue 2, 2004, Pages 137-185

  Green, Stuart P ^a  

^a LOUISIANA STATE UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

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EID: 4043123363     PISSN: 01675249     EISSN: None     Source Type: Journal    
DOI: 10.1023/B:LAPH.0000011918.29196.ec     Document Type: Review

References (161)

1. See Kurt Eichenwald, "Enron Paid Huge Bonuses in '01; Experts See a Motive for Cheating", N.Y. Times, Mar. 1, 2002, at p. A1; Joel Brinkley, "Powell to Provide Evidence of Iraq's Cheating on Arms", N.Y. Times, Feb. 3, 2003, at p. A1; Lew Freedman, "3 Expelled for Doping Violations", Chi. Tribune, Feb. 25, 2002, at p. 5 ("[H]ours before the violations were officially announced, skiers were abuzz, speaking of how drug cheaters had tarnished their sport."); Beth Piskora, "The Art of the Steal; Dumped Tyco Chief Kozlowski Indicted", N.Y. Post, June 5, 2002, at p. 35 ("Former Tyco CEO Dennis Kozlowski was indicted yesterday for cheating New York out of $1.87 million in taxes he should have paid on $13.2 million worth of art purchases."); Jeevan Vasagar, "Guilty: Trio Who Cheated Their Way to a Million", The Guardian (London), April 8, 2003, at p. 11; Diana Jean Schemo, "University of Virginia Hit by Scandal Over Cheating", N.Y. Times, May 10, 2001; Alan M. Dershowitz, Supreme Injustice: How the High Court Hijacked Election 2000 (Oxford: Oxford University Press, 2001), p. 174 ("[T]he decision in the Florida election case may be ranked as the single most corrupt decision in Supreme Court history, because it is the only one that I know of where the majority justices decided as they did because of the personal identity and political affiliation of the litigants. This was cheating, and a violation of the judicial oath.").
2. See Kurt Eichenwald, "Enron Paid Huge Bonuses in '01; Experts See a Motive for Cheating", N.Y. Times, Mar. 1, 2002, at p. A1; Joel Brinkley, "Powell to Provide Evidence of Iraq's Cheating on Arms", N.Y. Times, Feb. 3, 2003, at p. A1; Lew Freedman, "3 Expelled for Doping Violations", Chi. Tribune, Feb. 25, 2002, at p. 5 ("[H]ours before the violations were officially announced, skiers were abuzz, speaking of how drug cheaters had tarnished their sport."); Beth Piskora, "The Art of the Steal; Dumped Tyco Chief Kozlowski Indicted", N.Y. Post, June 5, 2002, at p. 35 ("Former Tyco CEO Dennis Kozlowski was indicted yesterday for cheating New York out of $1.87 million in taxes he should have paid on $13.2 million worth of art purchases."); Jeevan Vasagar, "Guilty: Trio Who Cheated Their Way to a Million", The Guardian (London), April 8, 2003, at p. 11; Diana Jean Schemo, "University of Virginia Hit by Scandal Over Cheating", N.Y. Times, May 10, 2001; Alan M. Dershowitz, Supreme Injustice: How the High Court Hijacked Election 2000 (Oxford: Oxford University Press, 2001), p. 174 ("[T]he decision in the Florida election case may be ranked as the single most corrupt decision in Supreme Court history, because it is the only one that I know of where the majority justices decided as they did because of the personal identity and political affiliation of the litigants. This was cheating, and a violation of the judicial oath.").
3. See Kurt Eichenwald, "Enron Paid Huge Bonuses in '01; Experts See a Motive for Cheating", N.Y. Times, Mar. 1, 2002, at p. A1; Joel Brinkley, "Powell to Provide Evidence of Iraq's Cheating on Arms", N.Y. Times, Feb. 3, 2003, at p. A1; Lew Freedman, "3 Expelled for Doping Violations", Chi. Tribune, Feb. 25, 2002, at p. 5 ("[H]ours before the violations were officially announced, skiers were abuzz, speaking of how drug cheaters had tarnished their sport."); Beth Piskora, "The Art of the Steal; Dumped Tyco Chief Kozlowski Indicted", N.Y. Post, June 5, 2002, at p. 35 ("Former Tyco CEO Dennis Kozlowski was indicted yesterday for cheating New York out of $1.87 million in taxes he should have paid on $13.2 million worth of art purchases."); Jeevan Vasagar, "Guilty: Trio Who Cheated Their Way to a Million", The Guardian (London), April 8, 2003, at p. 11; Diana Jean Schemo, "University of Virginia Hit by Scandal Over Cheating", N.Y. Times, May 10, 2001; Alan M. Dershowitz, Supreme Injustice: How the High Court Hijacked Election 2000 (Oxford: Oxford University Press, 2001), p. 174 ("[T]he decision in the Florida election case may be ranked as the single most corrupt decision in Supreme Court history, because it is the only one that I know of where the majority justices decided as they did because of the personal identity and political affiliation of the litigants. This was cheating, and a violation of the judicial oath.").
4. See Kurt Eichenwald, "Enron Paid Huge Bonuses in '01; Experts See a Motive for Cheating", N.Y. Times, Mar. 1, 2002, at p. A1; Joel Brinkley, "Powell to Provide Evidence of Iraq's Cheating on Arms", N.Y. Times, Feb. 3, 2003, at p. A1; Lew Freedman, "3 Expelled for Doping Violations", Chi. Tribune, Feb. 25, 2002, at p. 5 ("[H]ours before the violations were officially announced, skiers were abuzz, speaking of how drug cheaters had tarnished their sport."); Beth Piskora, "The Art of the Steal; Dumped Tyco Chief Kozlowski Indicted", N.Y. Post, June 5, 2002, at p. 35 ("Former Tyco CEO Dennis Kozlowski was indicted yesterday for cheating New York out of $1.87 million in taxes he should have paid on $13.2 million worth of art purchases."); Jeevan Vasagar, "Guilty: Trio Who Cheated Their Way to a Million", The Guardian (London), April 8, 2003, at p. 11; Diana Jean Schemo, "University of Virginia Hit by Scandal Over Cheating", N.Y. Times, May 10, 2001; Alan M. Dershowitz, Supreme Injustice: How the High Court Hijacked Election 2000 (Oxford: Oxford University Press, 2001), p. 174 ("[T]he decision in the Florida election case may be ranked as the single most corrupt decision in Supreme Court history, because it is the only one that I know of where the majority justices decided as they did because of the personal identity and political affiliation of the litigants. This was cheating, and a violation of the judicial oath.").
5. See Kurt Eichenwald, "Enron Paid Huge Bonuses in '01; Experts See a Motive for Cheating", N.Y. Times, Mar. 1, 2002, at p. A1; Joel Brinkley, "Powell to Provide Evidence of Iraq's Cheating on Arms", N.Y. Times, Feb. 3, 2003, at p. A1; Lew Freedman, "3 Expelled for Doping Violations", Chi. Tribune, Feb. 25, 2002, at p. 5 ("[H]ours before the violations were officially announced, skiers were abuzz, speaking of how drug cheaters had tarnished their sport."); Beth Piskora, "The Art of the Steal; Dumped Tyco Chief Kozlowski Indicted", N.Y. Post, June 5, 2002, at p. 35 ("Former Tyco CEO Dennis Kozlowski was indicted yesterday for cheating New York out of $1.87 million in taxes he should have paid on $13.2 million worth of art purchases."); Jeevan Vasagar, "Guilty: Trio Who Cheated Their Way to a Million", The Guardian (London), April 8, 2003, at p. 11; Diana Jean Schemo, "University of Virginia Hit by Scandal Over Cheating", N.Y. Times, May 10, 2001; Alan M. Dershowitz, Supreme Injustice: How the High Court Hijacked Election 2000 (Oxford: Oxford University Press, 2001), p. 174 ("[T]he decision in the Florida election case may be ranked as the single most corrupt decision in Supreme Court history, because it is the only one that I know of where the majority justices decided as they did because of the personal identity and political affiliation of the litigants. This was cheating, and a violation of the judicial oath.").
6. See Kurt Eichenwald, "Enron Paid Huge Bonuses in '01; Experts See a Motive for Cheating", N.Y. Times, Mar. 1, 2002, at p. A1; Joel Brinkley, "Powell to Provide Evidence of Iraq's Cheating on Arms", N.Y. Times, Feb. 3, 2003, at p. A1; Lew Freedman, "3 Expelled for Doping Violations", Chi. Tribune, Feb. 25, 2002, at p. 5 ("[H]ours before the violations were officially announced, skiers were abuzz, speaking of how drug cheaters had tarnished their sport."); Beth Piskora, "The Art of the Steal; Dumped Tyco Chief Kozlowski Indicted", N.Y. Post, June 5, 2002, at p. 35 ("Former Tyco CEO Dennis Kozlowski was indicted yesterday for cheating New York out of $1.87 million in taxes he should have paid on $13.2 million worth of art purchases."); Jeevan Vasagar, "Guilty: Trio Who Cheated Their Way to a Million", The Guardian (London), April 8, 2003, at p. 11; Diana Jean Schemo, "University of Virginia Hit by Scandal Over Cheating", N.Y. Times, May 10, 2001; Alan M. Dershowitz, Supreme Injustice: How the High Court Hijacked Election 2000 (Oxford: Oxford University Press, 2001), p. 174 ("[T]he decision in the Florida election case may be ranked as the single most corrupt decision in Supreme Court history, because it is the only one that I know of where the majority justices decided as they did because of the personal identity and political affiliation of the litigants. This was cheating, and a violation of the judicial oath.").
7. See Kurt Eichenwald, "Enron Paid Huge Bonuses in '01; Experts See a Motive for Cheating", N.Y. Times, Mar. 1, 2002, at p. A1; Joel Brinkley, "Powell to Provide Evidence of Iraq's Cheating on Arms", N.Y. Times, Feb. 3, 2003, at p. A1; Lew Freedman, "3 Expelled for Doping Violations", Chi. Tribune, Feb. 25, 2002, at p. 5 ("[H]ours before the violations were officially announced, skiers were abuzz, speaking of how drug cheaters had tarnished their sport."); Beth Piskora, "The Art of the Steal; Dumped Tyco Chief Kozlowski Indicted", N.Y. Post, June 5, 2002, at p. 35 ("Former Tyco CEO Dennis Kozlowski was indicted yesterday for cheating New York out of $1.87 million in taxes he should have paid on $13.2 million worth of art purchases."); Jeevan Vasagar, "Guilty: Trio Who Cheated Their Way to a Million", The Guardian (London), April 8, 2003, at p. 11; Diana Jean Schemo, "University of Virginia Hit by Scandal Over Cheating", N.Y. Times, May 10, 2001; Alan M. Dershowitz, Supreme Injustice: How the High Court Hijacked Election 2000 (Oxford: Oxford University Press, 2001), p. 174 ("[T]he decision in the Florida election case may be ranked as the single most corrupt decision in Supreme Court history, because it is the only one that I know of where the majority justices decided as they did because of the personal identity and political affiliation of the litigants. This was cheating, and a violation of the judicial oath.").
8. The term appears, among other places, in Nicola Lacey, "Contingency, Coherence, and Conceptualism: Reflections on the Encounter Between 'Critique' and 'The Philosophy of Criminal Law' ", in Antony Duff (ed.), Philosophy and The Criminal Law: Principle and Critique (Cambridge: Cambridge University Press, 1998), p. 9.
9. E.g., Natalie Angier, "The Urge to Punish Cheats: Not Just Human, but Selfless", N.Y. Times, Jan. 22, 2002 (reporting on Ernst Fehr and Simon Gächter, "Altruistic Punishment in Humans", Nature 415 (2002), p. 137 (participants in public goods game "altruistically" imposed punishment on participants who acted in self-interest); Michael H. Rothkopf and Ronald M. Harstad, "Two Models of Bid-Taker Cheating in Vickrey Auctions", J. Business 68 (1995), p. 257; Ray Rees, "Cheating in a Duopoly Supergame", J. Industrial Econ. 33 (1985), p. 387; James G. Peoples and B. Brembs "Chaos, Cheating, and Cooperation: Potential Solutions to the Prisoner's Dilemma", Oikos 76 (1996), p. 14; Andrew R. Dick, "When Are Cartels Stable Contracts?", J. Law & Econ. 39 (1996), p. 242.
10. E.g., Natalie Angier, "The Urge to Punish Cheats: Not Just Human, but Selfless", N.Y. Times, Jan. 22, 2002 (reporting on Ernst Fehr and Simon Gächter, "Altruistic Punishment in Humans", Nature 415 (2002), p. 137 (participants in public goods game "altruistically" imposed punishment on participants who acted in self-interest); Michael H. Rothkopf and Ronald M. Harstad, "Two Models of Bid-Taker Cheating in Vickrey Auctions", J. Business 68 (1995), p. 257; Ray Rees, "Cheating in a Duopoly Supergame", J. Industrial Econ. 33 (1985), p. 387; James G. Peoples and B. Brembs "Chaos, Cheating, and Cooperation: Potential Solutions to the Prisoner's Dilemma", Oikos 76 (1996), p. 14; Andrew R. Dick, "When Are Cartels Stable Contracts?", J. Law & Econ. 39 (1996), p. 242.
11. E.g., Natalie Angier, "The Urge to Punish Cheats: Not Just Human, but Selfless", N.Y. Times, Jan. 22, 2002 (reporting on Ernst Fehr and Simon Gächter, "Altruistic Punishment in Humans", Nature 415 (2002), p. 137 (participants in public goods game "altruistically" imposed punishment on participants who acted in self-interest); Michael H. Rothkopf and Ronald M. Harstad, "Two Models of Bid-Taker Cheating in Vickrey Auctions", J. Business 68 (1995), p. 257; Ray Rees, "Cheating in a Duopoly Supergame", J. Industrial Econ. 33 (1985), p. 387; James G. Peoples and B. Brembs "Chaos, Cheating, and Cooperation: Potential Solutions to the Prisoner's Dilemma", Oikos 76 (1996), p. 14; Andrew R. Dick, "When Are Cartels Stable Contracts?", J. Law & Econ. 39 (1996), p. 242.
12. E.g., Natalie Angier, "The Urge to Punish Cheats: Not Just Human, but Selfless", N.Y. Times, Jan. 22, 2002 (reporting on Ernst Fehr and Simon Gächter, "Altruistic Punishment in Humans", Nature 415 (2002), p. 137 (participants in public goods game "altruistically" imposed punishment on participants who acted in self-interest); Michael H. Rothkopf and Ronald M. Harstad, "Two Models of Bid-Taker Cheating in Vickrey Auctions", J. Business 68 (1995), p. 257; Ray Rees, "Cheating in a Duopoly Supergame", J. Industrial Econ. 33 (1985), p. 387; James G. Peoples and B. Brembs "Chaos, Cheating, and Cooperation: Potential Solutions to the Prisoner's Dilemma", Oikos 76 (1996), p. 14; Andrew R. Dick, "When Are Cartels Stable Contracts?", J. Law & Econ. 39 (1996), p. 242.
13. E.g., Natalie Angier, "The Urge to Punish Cheats: Not Just Human, but Selfless", N.Y. Times, Jan. 22, 2002 (reporting on Ernst Fehr and Simon Gächter, "Altruistic Punishment in Humans", Nature 415 (2002), p. 137 (participants in public goods game "altruistically" imposed punishment on participants who acted in self-interest); Michael H. Rothkopf and Ronald M. Harstad, "Two Models of Bid-Taker Cheating in Vickrey Auctions", J. Business 68 (1995), p. 257; Ray Rees, "Cheating in a Duopoly Supergame", J. Industrial Econ. 33 (1985), p. 387; James G. Peoples and B. Brembs "Chaos, Cheating, and Cooperation: Potential Solutions to the Prisoner's Dilemma", Oikos 76 (1996), p. 14; Andrew R. Dick, "When Are Cartels Stable Contracts?", J. Law & Econ. 39 (1996), p. 242.
14. Herbert Morris, "Persons and Punishment", The Monist 52 (1968), p. 475. Cf. Jeffrie G. Murphy, "Marxism and Retribution", Phil. & Pub. Aff. 2 (1973), p. 217; Wojciech Sadurksi, "Distributive Justice and the Theory of Punishment", Oxford J. Legal Stud. 5 (1985), p. 47.
15. Herbert Morris, "Persons and Punishment", The Monist 52 (1968), p. 475. Cf. Jeffrie G. Murphy, "Marxism and Retribution", Phil. & Pub. Aff. 2 (1973), p. 217; Wojciech Sadurksi, "Distributive Justice and the Theory of Punishment", Oxford J. Legal Stud. 5 (1985), p. 47.
16. Herbert Morris, "Persons and Punishment", The Monist 52 (1968), p. 475. Cf. Jeffrie G. Murphy, "Marxism and Retribution", Phil. & Pub. Aff. 2 (1973), p. 217; Wojciech Sadurksi, "Distributive Justice and the Theory of Punishment", Oxford J. Legal Stud. 5 (1985), p. 47.
17. Jean Hampton, "Correcting Harms Versus Righting Wrongs: The Goal of Retribution", UCLA L. Rev. 39 (1992), pp. 1659, 1660.
18. Robert M. Liebert, "What Develops in Moral Development?", in William M. Kurtines and Jacob L. Gewirtz (eds.), Morality, Moral Behavior, and Moral Development (1984), p. 187; Moshe M. Blatt and Lawrence Kohlberg, "The Effects of Classroom Moral Discussion Upon Children's Level of Moral Judgment", J. Moral Educ. 4 (1975), p. 129, reprinted in Bill Puka (ed.) Fundamental Research in Moral Development (1994).
19. Robert M. Liebert, "What Develops in Moral Development?", in William M. Kurtines and Jacob L. Gewirtz (eds.), Morality, Moral Behavior, and Moral Development (1984), p. 187; Moshe M. Blatt and Lawrence Kohlberg, "The Effects of Classroom Moral Discussion Upon Children's Level of Moral Judgment", J. Moral Educ. 4 (1975), p. 129, reprinted in Bill Puka (ed.) Fundamental Research in Moral Development (1994).
20. Robert M. Liebert, "What Develops in Moral Development?", in William M. Kurtines and Jacob L. Gewirtz (eds.), Morality, Moral Behavior, and Moral Development (1984), p. 187; Moshe M. Blatt and Lawrence Kohlberg, "The Effects of Classroom Moral Discussion Upon Children's Level of Moral Judgment", J. Moral Educ. 4 (1975), p. 129, reprinted in Bill Puka (ed.) Fundamental Research in Moral Development (1994).
21. Oxford English Dictionary, 2nd edn. (1989) (entry on cheating).
22. Michael Sean Quinn, "Practice-Defining Rules", Ethics 86 (1975), pp. 76, 78 (emphasis added). Quinn offers his discussion of cheating in the context of a critique of Rawls's argument that engaging in a practice requires rule-following. See John Rawls, "Two Concepts of Rules", Phil. Rev. 64 (1955), p. 3. According to Quinn, the implication of Rawls's argument is that if one is ostensibly engaged in a game, but cheating at it, then one is not actually playing the game. Quinn says this is self-contradictory because one cannot both be playing a game and not playing it. As an alternative, Quinn argues, we should simply say that the cheater is not playing fairly rather than not playing at all. Ethics 86, at p. 80. There is also a small philosophical literature on cheating in the narrower context of sports. See, e.g., Oliver Leaman, "Cheating and Fair Play in Sport", in William J. Morgan and Klaus V. Meier (eds.), Philosophic Inquiry in Sport, 2nd edn. (Champaign, IL: Human Kinetics Publishers, Inc., 1995), p. 193.
23. Michael Sean Quinn, "Practice-Defining Rules", Ethics 86 (1975), pp. 76, 78 (emphasis added). Quinn offers his discussion of cheating in the context of a critique of Rawls's argument that engaging in a practice requires rule-following. See John Rawls, "Two Concepts of Rules", Phil. Rev. 64 (1955), p. 3. According to Quinn, the implication of Rawls's argument is that if one is ostensibly engaged in a game, but cheating at it, then one is not actually playing the game. Quinn says this is self-contradictory because one cannot both be playing a game and not playing it. As an alternative, Quinn argues, we should simply say that the cheater is not playing fairly rather than not playing at all. Ethics 86, at p. 80. There is also a small philosophical literature on cheating in the narrower context of sports. See, e.g., Oliver Leaman, "Cheating and Fair Play in Sport", in William J. Morgan and Klaus V. Meier (eds.), Philosophic Inquiry in Sport, 2nd edn. (Champaign, IL: Human Kinetics Publishers, Inc., 1995), p. 193.
24. Michael Sean Quinn, "Practice-Defining Rules", Ethics 86 (1975), pp. 76, 78 (emphasis added). Quinn offers his discussion of cheating in the context of a critique of Rawls's argument that engaging in a practice requires rule-following. See John Rawls, "Two Concepts of Rules", Phil. Rev. 64 (1955), p. 3. According to Quinn, the implication of Rawls's argument is that if one is ostensibly engaged in a game, but cheating at it, then one is not actually playing the game. Quinn says this is self-contradictory because one cannot both be playing a game and not playing it. As an alternative, Quinn argues, we should simply say that the cheater is not playing fairly rather than not playing at all. Ethics 86, at p. 80. There is also a small philosophical literature on cheating in the narrower context of sports. See, e.g., Oliver Leaman, "Cheating and Fair Play in Sport", in William J. Morgan and Klaus V. Meier (eds.), Philosophic Inquiry in Sport, 2nd edn. (Champaign, IL: Human Kinetics Publishers, Inc., 1995), p. 193.
25. Michael Sean Quinn, "Practice-Defining Rules", Ethics 86 (1975), pp. 76, 78 (emphasis added). Quinn offers his discussion of cheating in the context of a critique of Rawls's argument that engaging in a practice requires rule-following. See John Rawls, "Two Concepts of Rules", Phil. Rev. 64 (1955), p. 3. According to Quinn, the implication of Rawls's argument is that if one is ostensibly engaged in a game, but cheating at it, then one is not actually playing the game. Quinn says this is self-contradictory because one cannot both be playing a game and not playing it. As an alternative, Quinn argues, we should simply say that the cheater is not playing fairly rather than not playing at all. Ethics 86, at p. 80. There is also a small philosophical literature on cheating in the narrower context of sports. See, e.g., Oliver Leaman, "Cheating and Fair Play in Sport", in William J. Morgan and Klaus V. Meier (eds.), Philosophic Inquiry in Sport, 2nd edn. (Champaign, IL: Human Kinetics Publishers, Inc., 1995), p. 193.
26. See, e.g., Neil MacCormick, Legal Reasoning and Legal Theory, rev. edn. (Oxford: Oxford University Press 1994); William Twining and David Miers, How to Do Things With Rules, 4th edn. (London: Butterworths, 1999); Frederick Schauer, Playing by the Rules (Oxford: Oxford University Press, 1991).
27. See, e.g., Neil MacCormick, Legal Reasoning and Legal Theory, rev. edn. (Oxford: Oxford University Press 1994); William Twining and David Miers, How to Do Things With Rules, 4th edn. (London: Butterworths, 1999); Frederick Schauer, Playing by the Rules (Oxford: Oxford University Press, 1991).
28. See, e.g., Neil MacCormick, Legal Reasoning and Legal Theory, rev. edn. (Oxford: Oxford University Press 1994); William Twining and David Miers, How to Do Things With Rules, 4th edn. (London: Butterworths, 1999); Frederick Schauer, Playing by the Rules (Oxford: Oxford University Press, 1991).
29. MacCormick, supra note 9, at p. x.
30. Twining and Miers, supra note 9, at p. 123.
31. Schauer, supra note 9, at p. 2.
32. Also problematic are those cases in which it is difficult to distinguish between prescriptive and descriptive rules. For example, imagine that X and Y regularly play tennis together and that X's game is in many ways predictable: As a rule, X can be counted on to play with no great effort or skill. Over the summer, however, X takes tennis lessons, lifts weights and runs, and greatly improves his physical condition. In the Fall, when X and Y play again, X's game is much stronger. Presumably, X has broken the descriptive rule that "X plays without any great skill or effort." But it seems odd to call this cheating, since he is obviously still playing by the rules. Perhaps X has also broken some other, less obvious, prescriptive rule, such as that "one shouldn't defy the expectations of a long-time sporting partner by secretly taking lessons and getting in shape," or something to that effect. Thus, what may at first seem like the violation of a descriptive rule is probably best re-characterized as the violation of a prescriptive rule.
33. Here again, I follow Schauer's useful discussion, supra note 9, at pp. 3-4. The analogous distinction between prudential and normative rules is made by Twining and Miers, supra note 9, at pp. 124-125.
34. Here again, I follow Schauer's useful discussion, supra note 9, at pp. 3-4. The analogous distinction between prudential and normative rules is made by Twining and Miers, supra note 9, at pp. 124-125.
35. About this rule, Churchill famously remarked: "This is the sort of pedantry up with which I will not put."
36. Schauer, supra note 9, at p. 3.
37. I b i d.
38. I b i d.
39. Rawls, supra note 8. A similar distinction is discussed in John Searle, Speech Acts: An Essay in the Philosophy of Language (Cambridge: Cambridge University Press, 1969), pp. 33-42.
40. Rawls, supra note 8. A similar distinction is discussed in John Searle, Speech Acts: An Essay in the Philosophy of Language (Cambridge: Cambridge University Press, 1969), pp. 33-42.
41. Rawls uses the distinction between constitutive and regulative rules to demonstrate the difference between justifying a practice as a system of rules to be applied and enforced, and justifying a particular action that falls under such rules. According to Rawls, utilitarian arguments are appropriate with regard to questions about practices, while retributive arguments fit the application of particular rules to particular cases. Rawls, supra note 8, at p. 5.
42. On this point, compare Quinn, supra note 8.
43. The distinction is made by, among others, H. L. A. Hart, The Concept of Law (Oxford: Oxford University Press, 1961), pp. 77-96; and Meir Dan-Cohen, "Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law", Harv. L. Rev. 97 (1984), p. 625.
44. The distinction is made by, among others, H. L. A. Hart, The Concept of Law (Oxford: Oxford University Press, 1961), pp. 77-96; and Meir Dan-Cohen, "Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law", Harv. L. Rev. 97 (1984), p. 625.
45. Ronald Dworkin, "The Model of Rules I", in Takings Rights Seriously (Cambridge: Harvard University Press, 1977), pp. 22-28.
46. Ibid. at p. 24.
47. Ibid. at p. 26.
48. Ibid. In some cases, Dworkin also distinguishes between principles and policies. A policy is "that kind of standard that sets out a goal to be reached, generally an improvement in some economic, political, or social feature of the community." A principle is a standard that is to be observed, not because it will advance or secure an economic, political, or social situation deemed desirable, but because it is a requirement of justice or fairness or some other dimension of morality (Ibid. at p. 22). The distinction is of no real relevance in the context of cheating.
49. Ibid. In some cases, Dworkin also distinguishes between principles and policies. A policy is "that kind of standard that sets out a goal to be reached, generally an improvement in some economic, political, or social feature of the community." A principle is a standard that is to be observed, not because it will advance or secure an economic, political, or social situation deemed desirable, but because it is a requirement of justice or fairness or some other dimension of morality (Ibid. at p. 22). The distinction is of no real relevance in the context of cheating.
50. See, e.g., MacCormick, supra note 9, at p. 229 et seq.; John Gardner, "Legal Positivism: 51/2 Myths", Am J. Juris. 46 (2001), pp. 199, 214; Larry Alexander and Emily Sherwin, The Rule of Rules: Morality, Rules, and the Dilemmas of Law (Durham: Duke University Press 2001), pp. 157-179.
51. See, e.g., MacCormick, supra note 9, at p. 229 et seq.; John Gardner, "Legal Positivism: 51/2 Myths", Am J. Juris. 46 (2001), pp. 199, 214; Larry Alexander and Emily Sherwin, The Rule of Rules: Morality, Rules, and the Dilemmas of Law (Durham: Duke University Press 2001), pp. 157-179.
52. See, e.g., MacCormick, supra note 9, at p. 229 et seq.; John Gardner, "Legal Positivism: 51/2 Myths", Am J. Juris. 46 (2001), pp. 199, 214; Larry Alexander and Emily Sherwin, The Rule of Rules: Morality, Rules, and the Dilemmas of Law (Durham: Duke University Press 2001), pp. 157-179.
53. There is an interesting question whether an otherwise fair rule must be issued by a legitimate authority in order to provide a predicate for cheating. Imagine an otherwise reasonable and fairly enforced rule prohibiting drunk driving that was issued by a tyrannical, non-representative regime. It seems to me that violation of such a rule, so long as it was intended to obtain an unfair advantage over another, would in fact constitute cheating.
54. Another interesting question concerns the status of so-called "professional" or "strategic" fouls. A player in some sport is about to score a point. An opposing player then intentionally incurs a foul (and, typically, a penalty) so as to stop play and prevent the point from being scored. The rule-breaking is clearly intentional and for the purpose of obtaining a competitive advantage, but does it constitute cheating? Opinions vary. One argument, offered by Michael Sean Quinn, is that such cases actually involve two sets of rules - the rules of the game and a separate set of strategic rules. According to Quinn, there is no cheating when "deliberate rule breakage is condoned by the accepted strategic rules of that particular game." Quinn, supra note 8, at p. 81. For a contrasting view, see Warren Fraleigh, "Why the Good Foul is Not Good", in Morgan and Meier, supra note 8, at p. 185.
55. Another interesting question concerns the status of so-called "professional" or "strategic" fouls. A player in some sport is about to score a point. An opposing player then intentionally incurs a foul (and, typically, a penalty) so as to stop play and prevent the point from being scored. The rule-breaking is clearly intentional and for the purpose of obtaining a competitive advantage, but does it constitute cheating? Opinions vary. One argument, offered by Michael Sean Quinn, is that such cases actually involve two sets of rules - the rules of the game and a separate set of strategic rules. According to Quinn, there is no cheating when "deliberate rule breakage is condoned by the accepted strategic rules of that particular game." Quinn, supra note 8, at p. 81. For a contrasting view, see Warren Fraleigh, "Why the Good Foul is Not Good", in Morgan and Meier, supra note 8, at p. 185.
56. My argument here was aided by the account of "Fairness" in A. John Simmons, "Fairness", in Lawrence C. Becker and Charlotte B. Becker (eds.), Encyclopedia of Ethics, vol. 1 (New York: Garland Publishing, 1992), pp. 355-356. Herbert Morris, quoted supra note 4, also characterizes what amounts to cheating in a similar way.
57. My argument here was aided by the account of "Fairness" in A. John Simmons, "Fairness", in Lawrence C. Becker and Charlotte B. Becker (eds.), Encyclopedia of Ethics, vol. 1 (New York: Garland Publishing, 1992), pp. 355-356. Herbert Morris, quoted supra note 4, also characterizes what amounts to cheating in a similar way.
58. For a useful discussion of the extent to which moral duties to self are comparable to moral duties to others, see W. D. Falk, "Morality, Self and Others", in Judith Jarvis Thomson and Gerald Dworkin (eds.), Ethics (1968); see also Bernard Williams, Truth and Truthfulness: An Essay in Genealogy (Princeton: Princeton University Press, 2002), p. 125 ("[I]t is worth remarking that we are familiar enough in other cases with the idea that when an action is applied reflexively, some of its usual implications are lost - as with 'self-taught,' for instance, or 'self-employed.'"). On the wrongfulness of self-deception in particular, see Stephen L. Darnell, "Self-Deception, Autonomy, and Moral Constitution", in Brian P. McLaughlin and Amelie Oksenberg Rorty (eds.), ' Perspectives on Self-Deception (Berkeley: University of California Press, 1988), p. 407; Marcia Baron, "What is Wrong With Self-Deception?", in ibid. at p. 431.
59. For a useful discussion of the extent to which moral duties to self are comparable to moral duties to others, see W. D. Falk, "Morality, Self and Others", in Judith Jarvis Thomson and Gerald Dworkin (eds.), Ethics (1968); see also Bernard Williams, Truth and Truthfulness: An Essay in Genealogy (Princeton: Princeton University Press, 2002), p. 125 ("[I]t is worth remarking that we are familiar enough in other cases with the idea that when an action is applied reflexively, some of its usual implications are lost - as with 'self-taught,' for instance, or 'self-employed.'"). On the wrongfulness of self-deception in particular, see Stephen L. Darnell, "Self-Deception, Autonomy, and Moral Constitution", in Brian P. McLaughlin and Amelie Oksenberg Rorty (eds.), ' Perspectives on Self-Deception (Berkeley: University of California Press, 1988), p. 407; Marcia Baron, "What is Wrong With Self-Deception?", in ibid. at p. 431.
60. For a useful discussion of the extent to which moral duties to self are comparable to moral duties to others, see W. D. Falk, "Morality, Self and Others", in Judith Jarvis Thomson and Gerald Dworkin (eds.), Ethics (1968); see also Bernard Williams, Truth and Truthfulness: An Essay in Genealogy (Princeton: Princeton University Press, 2002), p. 125 ("[I]t is worth remarking that we are familiar enough in other cases with the idea that when an action is applied reflexively, some of its usual implications are lost - as with 'self-taught,' for instance, or 'self-employed.'"). On the wrongfulness of self-deception in particular, see Stephen L. Darnell, "Self-Deception, Autonomy, and Moral Constitution", in Brian P. McLaughlin and Amelie Oksenberg Rorty (eds.), ' Perspectives on Self-Deception (Berkeley: University of California Press, 1988), p. 407; Marcia Baron, "What is Wrong With Self-Deception?", in ibid. at p. 431.
61. For a useful discussion of the extent to which moral duties to self are comparable to moral duties to others, see W. D. Falk, "Morality, Self and Others", in Judith Jarvis Thomson and Gerald Dworkin (eds.), Ethics (1968); see also Bernard Williams, Truth and Truthfulness: An Essay in Genealogy (Princeton: Princeton University Press, 2002), p. 125 ("[I]t is worth remarking that we are familiar enough in other cases with the idea that when an action is applied reflexively, some of its usual implications are lost - as with 'self-taught,' for instance, or 'self-employed.'"). On the wrongfulness of self-deception in particular, see Stephen L. Darnell, "Self-Deception, Autonomy, and Moral Constitution", in Brian P. McLaughlin and Amelie Oksenberg Rorty (eds.), ' Perspectives on Self-Deception (Berkeley: University of California Press, 1988), p. 407; Marcia Baron, "What is Wrong With Self-Deception?", in ibid. at p. 431.
62. Of course, one can imagine cases in which an adulterer might have an affair in order to gain the upper hand in a relationship, say, by making his spouse fearful of being abandoned.
63. There are also cases in which X knows that his conduct will give him an advantage over some other party, without necessarily intending to achieve such an advantage. For example, imagine that X shares a house with a group of other adults all of whom are supposed to share in housekeeping duties. If X fails to do his share of such duties, he might do so out of a desire simply to avoid work, rather than to achieve any particular advantage. Nevertheless, given X's knowledge that he will be advantaged, it seems reasonable to say that X has cheated. Alternatively, we might say that X did intend to obtain an unfair advantage, but that he was unaware that he had such intent. (My thanks to an anonymous reviewer for Law and Philosophy for alerting me to the issues raised in this and the previous note.)
64. Bush v. Gore, 531 U.S. 98 (2000). The term "cheating" has also been used by Barry Smith to refer to cases in which judges disregard well settled precedent in order to achieve what they regard as the "right result" (particularly in the appeal of state criminal convictions). M. B. E. Smith, "Do Appellate Courts Regularly Cheat?", Crim. Just. Ethics 16(2) (Summer/Fall 1997), pp. 11-19; M. B. E. Smith, "May Judges Ever Nullify the Law?", Notre Dame L. Rev. 74 (1999), p. 1657.
65. Bush v. Gore, 531 U.S. 98 (2000). The term "cheating" has also been used by Barry Smith to refer to cases in which judges disregard well settled precedent in order to achieve what they regard as the "right result" (particularly in the appeal of state criminal convictions). M. B. E. Smith, "Do Appellate Courts Regularly Cheat?", Crim. Just. Ethics 16(2) (Summer/Fall 1997), pp. 11-19; M. B. E. Smith, "May Judges Ever Nullify the Law?", Notre Dame L. Rev. 74 (1999), p. 1657.
66. Bush v. Gore, 531 U.S. 98 (2000). The term "cheating" has also been used by Barry Smith to refer to cases in which judges disregard well settled precedent in order to achieve what they regard as the "right result" (particularly in the appeal of state criminal convictions). M. B. E. Smith, "Do Appellate Courts Regularly Cheat?", Crim. Just. Ethics 16(2) (Summer/Fall 1997), pp. 11-19; M. B. E. Smith, "May Judges Ever Nullify the Law?", Notre Dame L. Rev. 74 (1999), p. 1657.
67. There is also, perhaps, a third question concerning the type of rule violated. Earlier, it was suggested that cheating typically involves the violation of a conduct, rather than decision, rule. Unfortunately, it is unclear which kind of rules were involved here. Being impartial is a decision rule in the sense that it tells judges how to decide an issue, but it is also a conduct rule in the sense that it regulates judges' conduct qua judges. Deciding skating competitions solely on the basis of merit and allowing every person's vote to count equally both appear to be decision rules.
68. See, e.g., Jack M. Balkin, "Bush v. Gore and the Boundary Between Law and Politics", Yale L. J. 110 (2001), pp. 1407, 1440 (Scalia and Kennedy motivated by desire to be Chief Justice); Louise Weinberg, "When Courts Decide Elections: The Constitutionality of Bush v. Gore", B. U. L. Rev. 82 (2002), pp. 609, 615 (Rehnquist and O'Connor anxious to resign and be replaced by conservative justices).
69. See, e.g., Jack M. Balkin, "Bush v. Gore and the Boundary Between Law and Politics", Yale L. J. 110 (2001), pp. 1407, 1440 (Scalia and Kennedy motivated by desire to be Chief Justice); Louise Weinberg, "When Courts Decide Elections: The Constitutionality of Bush v. Gore", B. U. L. Rev. 82 (2002), pp. 609, 615 (Rehnquist and O'Connor anxious to resign and be replaced by conservative justices).
70. See, e.g., Dershowitz, supra note 1 (characterizing Supreme Court decision in Bush v. Gore as "cheating").
71. See, e.g., Brian A. Jacob and Steven D. Levit, "Catching Cheating Teachers: The Results of An Unusual Experiment in Implementing Theory", Working Paper 9414, National Bureau of Economic Research (2002), 〈http://www.nber.org/papers/w9414〉.
72. On the meaning of altruism, see Thomas Nagel, The Possibility of Altruism (Princeton: Princeton University Press, 1978).
73. Cf. Lynda Cardwell, "Sure You Shot a 79, Mr. President. Of Course You Did", N.Y. Times, May 9, 2003 (reviewing Don Van Natta, Jr., First Off the Tee: Presidential Hackers, Duffers and Cheaters From Taft to Bush (New York: Public Affairs, 2003)).
74. Cf. Lynda Cardwell, "Sure You Shot a 79, Mr. President. Of Course You Did", N.Y. Times, May 9, 2003 (reviewing Don Van Natta, Jr., First Off the Tee: Presidential Hackers, Duffers and Cheaters From Taft to Bush (New York: Public Affairs, 2003)).
75. In connection with the possibility of widespread violations of a given rule, it is worth considering Hume's distinction between natural and artificial virtues. See David Hume, A Treatise of Human Nature, L. A. Selby-Bigge (ed.), revised by P. H. Nidditch, 2nd edn. (Oxford: Oxford University Press, 1978; orig. publ. 1739-1740), bk. III, part II, section I. For Hume, virtues are the motives that lead to an agent's actions. Virtues such as compassion and friendship he refers to as "natural" virtues because they arise naturally out of human nature. Other virtues, such as justice, promise-keeping, and allegiance, he says are "artificial," because they arise out of social conventions as a means of ordering society. While it is not possible to consider Hume's distinction between the natural and artificial virtues here in any detail, it is nevertheless worth noting the possibility that, unlike natural virtues, presumably artificial virtues such as "playing fair" and "not cheating" might be regarded as having comparatively less force in a society in which such virtues were widely and regularly disregarded.
76. A Moral Theory of White Collar Crime (Oxford: Oxford University Press, forthcoming); "What's Wrong With Bribery?", in R. A. Duff and Stuart P. Green (eds.), Defining Crimes: Essays on the Criminal Law's Special Part (Oxford: Oxford University Press, forthcoming); "Lying, Misleading, and Falsely Denying: How Moral Concepts Inform the Law of Perjury, Fraud, and False Statements", Hastings Law Journal 53 (2001), p. 157; "Why It's a Crime to Tear the Tag Off a Mattress: Overcriminalization and the Moral Content of Regulatory Offenses", Emory Law Journal 46 (1997), p. 1533.
77. A Moral Theory of White Collar Crime (Oxford: Oxford University Press, forthcoming); "What's Wrong With Bribery?", in R. A. Duff and Stuart P. Green (eds.), Defining Crimes: Essays on the Criminal Law's Special Part (Oxford: Oxford University Press, forthcoming); "Lying, Misleading, and Falsely Denying: How Moral Concepts Inform the Law of Perjury, Fraud, and False Statements", Hastings Law Journal 53 (2001), p. 157; "Why It's a Crime to Tear the Tag Off a Mattress: Overcriminalization and the Moral Content of Regulatory Offenses", Emory Law Journal 46 (1997), p. 1533.
78. A Moral Theory of White Collar Crime (Oxford: Oxford University Press, forthcoming); "What's Wrong With Bribery?", in R. A. Duff and Stuart P. Green (eds.), Defining Crimes: Essays on the Criminal Law's Special Part (Oxford: Oxford University Press, forthcoming); "Lying, Misleading, and Falsely Denying: How Moral Concepts Inform the Law of Perjury, Fraud, and False Statements", Hastings Law Journal 53 (2001), p. 157; "Why It's a Crime to Tear the Tag Off a Mattress: Overcriminalization and the Moral Content of Regulatory Offenses", Emory Law Journal 46 (1997), p. 1533.
79. A Moral Theory of White Collar Crime (Oxford: Oxford University Press, forthcoming); "What's Wrong With Bribery?", in R. A. Duff and Stuart P. Green (eds.), Defining Crimes: Essays on the Criminal Law's Special Part (Oxford: Oxford University Press, forthcoming); "Lying, Misleading, and Falsely Denying: How Moral Concepts Inform the Law of Perjury, Fraud, and False Statements", Hastings Law Journal 53 (2001), p. 157; "Why It's a Crime to Tear the Tag Off a Mattress: Overcriminalization and the Moral Content of Regulatory Offenses", Emory Law Journal 46 (1997), p. 1533.
80. See Sissela Bok, Lying: Moral Choice in Public and Private Life (New York: orig. publ. 1978, Vintage reprint edn., 1999); Charles Fried, Right and Wrong (Cambridge, MA: Harvard University Press, 1978), pp. 54-78.
81. See Sissela Bok, Lying: Moral Choice in Public and Private Life (New York: orig. publ. 1978, Vintage reprint edn., 1999); Charles Fried, Right and Wrong (Cambridge, MA: Harvard University Press, 1978), pp. 54-78.
82. See George P. Fletcher, Loyalty: An Essay on the Morality of Relationships (Oxford: Oxford University Press, 1993); Josiah Royce, The Philosophy of Loyalty (New York: Macmillan, 1908, reprinted 1920); Marcia Baron, The Moral Status of Loyalty (Dubuque, Iowa: Kendall/Hunt Pub. Co., 1984).
83. See George P. Fletcher, Loyalty: An Essay on the Morality of Relationships (Oxford: Oxford University Press, 1993); Josiah Royce, The Philosophy of Loyalty (New York: Macmillan, 1908, reprinted 1920); Marcia Baron, The Moral Status of Loyalty (Dubuque, Iowa: Kendall/Hunt Pub. Co., 1984).
84. See George P. Fletcher, Loyalty: An Essay on the Morality of Relationships (Oxford: Oxford University Press, 1993); Josiah Royce, The Philosophy of Loyalty (New York: Macmillan, 1908, reprinted 1920); Marcia Baron, The Moral Status of Loyalty (Dubuque, Iowa: Kendall/Hunt Pub. Co., 1984).
85. See Alan Wertheimer, Coercion (Princeton: Princeton University Press, 1987); Joel Feinberg, The Moral Limits of the Criminal Law: Harm to Self (Oxford: Oxford University Press, 1986), pp. 189-268; Robert Nozick, "Coercion", Socratic Puzzles (1997, orig. pub. 1969), p. 15; Harry G. Frankfurt, "Coercion and Moral Responsibility", in Ted Honderich (ed.), Essays on Freedom of Action (1973), p. 63; Mitchell N. Berman, "The Normative Functions of Coercion Claims", Legal Theory 8 (2002), p. 45.
86. See Alan Wertheimer, Coercion (Princeton: Princeton University Press, 1987); Joel Feinberg, The Moral Limits of the Criminal Law: Harm to Self (Oxford: Oxford University Press, 1986), pp. 189-268; Robert Nozick, "Coercion", Socratic Puzzles (1997, orig. pub. 1969), p. 15; Harry G. Frankfurt, "Coercion and Moral Responsibility", in Ted Honderich (ed.), Essays on Freedom of Action (1973), p. 63; Mitchell N. Berman, "The Normative Functions of Coercion Claims", Legal Theory 8 (2002), p. 45.
87. See Alan Wertheimer, Coercion (Princeton: Princeton University Press, 1987); Joel Feinberg, The Moral Limits of the Criminal Law: Harm to Self (Oxford: Oxford University Press, 1986), pp. 189-268; Robert Nozick, "Coercion", Socratic Puzzles (1997, orig. pub. 1969), p. 15; Harry G. Frankfurt, "Coercion and Moral Responsibility", in Ted Honderich (ed.), Essays on Freedom of Action (1973), p. 63; Mitchell N. Berman, "The Normative Functions of Coercion Claims", Legal Theory 8 (2002), p. 45.
88. See Alan Wertheimer, Coercion (Princeton: Princeton University Press, 1987); Joel Feinberg, The Moral Limits of the Criminal Law: Harm to Self (Oxford: Oxford University Press, 1986), pp. 189-268; Robert Nozick, "Coercion", Socratic Puzzles (1997, orig. pub. 1969), p. 15; Harry G. Frankfurt, "Coercion and Moral Responsibility", in Ted Honderich (ed.), Essays on Freedom of Action (1973), p. 63; Mitchell N. Berman, "The Normative Functions of Coercion Claims", Legal Theory 8 (2002), p. 45.
89. See Alan Wertheimer, Coercion (Princeton: Princeton University Press, 1987); Joel Feinberg, The Moral Limits of the Criminal Law: Harm to Self (Oxford: Oxford University Press, 1986), pp. 189-268; Robert Nozick, "Coercion", Socratic Puzzles (1997, orig. pub. 1969), p. 15; Harry G. Frankfurt, "Coercion and Moral Responsibility", in Ted Honderich (ed.), Essays on Freedom of Action (1973), p. 63; Mitchell N. Berman, "The Normative Functions of Coercion Claims", Legal Theory 8 (2002), p. 45.
90. See Joel Feinberg, The Moral Limits of the Criminal Law: Harmless Wrong-doing (Oxford: Oxford University Press, 1998), pp. 176-210; Alan Wertheimer, Exploitation (Princeton: Princeton University Press, 1996).
91. See Joel Feinberg, The Moral Limits of the Criminal Law: Harmless Wrong-doing (Oxford: Oxford University Press, 1998), pp. 176-210; Alan Wertheimer, Exploitation (Princeton: Princeton University Press, 1996).
92. See P. S. Atiyah, Promises, Morals, and Law (Oxford: Oxford University Press, 1981); Joseph Raz, "Promises and Obligations", in P. Hacker and J. Raz (eds.), Law, Morality, and Society, vol. 210 (1977); R. S. Downie, "Three Accounts of Promising", Phil. Q. 35 (1985), p. 259.
93. See P. S. Atiyah, Promises, Morals, and Law (Oxford: Oxford University Press, 1981); Joseph Raz, "Promises and Obligations", in P. Hacker and J. Raz (eds.), Law, Morality, and Society, vol. 210 (1977); R. S. Downie, "Three Accounts of Promising", Phil. Q. 35 (1985), p. 259.
94. See P. S. Atiyah, Promises, Morals, and Law (Oxford: Oxford University Press, 1981); Joseph Raz, "Promises and Obligations", in P. Hacker and J. Raz (eds.), Law, Morality, and Society, vol. 210 (1977); R. S. Downie, "Three Accounts of Promising", Phil. Q. 35 (1985), p. 259.
95. See Stephen Shute and Jeremy Horder, "Thieving and Deceiving: What is the Difference?", Modern L. Rev. (July 1993), pp. 548, 553.
96. See Michael Walzer, "The Duty to Disobey", in Obligations: Essays on Disobedience, War, and Citizenship (1970); Tony Honore,' "Must We Obey? Necessity as a Ground of Obligation", Va. L. Rev. 67 (1981), p. 143.
97. See Michael Walzer, "The Duty to Disobey", in Obligations: Essays on Disobedience, War, and Citizenship (1970); Tony Honore,' "Must We Obey? Necessity as a Ground of Obligation", Va. L. Rev. 67 (1981), p. 143.
98. As Alan Wertheimer has suggested, "when we offer a moral description of an act, we typically invoke the strongest applicable moral description" of that act. Wertheimer, Exploitation, supra note 46, at p. 15. An analogous tendency occurs in the criminal law. Technically, a defendant who commits a murder or attempted murder has also committed an assault or a battery. But in charging the defendant, battery "drops out" as a charge and we focus exclusively on the murder.
99. Joel Feinberg, The Moral Limits of the Criminal Law: Harm to Others (Oxford: Oxford University Press, 1984).
100. A defendant who lacks intent or was mistaken about a relevant fact is usually said to be less culpable than a defendant who intended the act or had no such excuse. For example, if X takes Y's raincoat under the mistaken, but reasonable, belief that it is her own, then X has performed an act that is not culpable, although it is harmful.
101. Following Feinberg, I define harm as an intrusion into a person's interest. Feinberg, supra note 51, at p.13. For further discussion of the concepts of culpability, harmfulness, and wrongfulness, and the relationship among them, see Green, "Why It's a Crime to Tear the Tag Off a Mattress," supra note 42, at pp. 1547-1554.
102. Following Feinberg, I define harm as an intrusion into a person's interest. Feinberg, supra note 51, at p.13. For further discussion of the concepts of culpability, harmfulness, and wrongfulness, and the relationship among them, see Green, "Why It's a Crime to Tear the Tag Off a Mattress," supra note 42, at pp. 1547-1554.
103. John Gardner, "Rationality and the Rule of Law in Offences Against the Person", Cambridge L. J. 53 (1994), pp. 502, 511.
104. John Gardner and Stephen Shute, "The Wrongness of Rape", in Jeremy Horder (ed.), Oxford Essays in Jurisprudence (Oxford: Oxford University Press, 2000), pp. 195-200.
105. Shute and Horder, supra note 48, at p. 553; see also A. P. Simester and Andrew von Hirsch, "Rethinking the Offense Principle", Legal Theory 8 (2002), pp. 269, 270-272 (distinguishing between harms and wrongs).
106. Shute and Horder, supra note 48, at p. 553; see also A. P. Simester and Andrew von Hirsch, "Rethinking the Offense Principle", Legal Theory 8 (2002), pp. 269, 270-272 (distinguishing between harms and wrongs).
107. See sources cited supra note 42.
108. Oxford English Dictionary, 2nd edn. (1989) (entry on cheating); see also Edward Coke, The First Part of the Institutes of the Lawes of England, or, A Commentarie Upon Littleton 140a (1628, Garland Publ. Repr. 1979).
109. Oxford English Dictionary, 2nd edn. (1989) (entry on cheating); see also Edward Coke, The First Part of the Institutes of the Lawes of England, or, A Commentarie Upon Littleton 140a (1628, Garland Publ. Repr. 1979).
110. Green, "Lying, Misleading, and Falsely Denying", supra note 42, at pp. 182-187.
111. Model Penal Code §224.71(1) (making it a crime, in the course of business, to use or possess for use a "false weight or measure, or any other device for falsely determining or recording any quality or quantity").
112. 26 U.S.C. §7203.
113. 26 U.S.C. §7201. There is also a felony provision that makes it a crime to willfully aid or assist in the preparation of a false return. 26 U.S.C. §7206(2).
114. 26 U.S.C. §7201. There is also a felony provision that makes it a crime to willfully aid or assist in the preparation of a false return. 26 U.S.C. §7206(2).
115. Spies v. United States, 317 U.S. 492 (1943).
116. United States v. Pomponio, 429 U.S. 10, 11 (1976).
117. See Mark C. Winings, Comment, "Ignorance is Bliss, Especially for the Tax Evader", J. Crim. and Criminology 84 (1993), p. 575.
118. 498 U.S. 192 (1991).
119. Ibid. at p. 205.
120. On the other hand, in an unjust or repressive regime, where tax revenues are used for socially destructive purposes, such as, say, the funding of terrorists or the stockpiling of weapons of mass destruction, non-payment of taxes might well be regarded as entailing a positive social good.
121. Admittedly, widespread tax avoidance is also likely to cause resentment from those who are unable or unwilling to take advantage of expensive tax advice and complicated tax loopholes. The problems of an unjust tax code are noted below. For now, it is enough to suggest that resentment to illegal tax evasion is likely to be even greater than to legal tax avoidance.
122. See Martin T. Crowe, The Moral Obligation of Paying Just Taxes
123. See Martin T. Crowe, The Moral Obligation of Paying Just Taxes (Washington, D.C.: Catholic University of America Studies in Sacred Theology No. 84) (1944) (those who "use fraud and other means to evade just taxes ... sin mortally by committing the sin of theft") (quoted in Leo P. Martinez, "Taxes, Morals, and Legitimacy", B. Y. U. L. Rev. (1994), pp. 521, 522, n. 3); Richard H. McAdams, "Group Norms, Gossip, and Blackmail", U. Pa. L. Rev. 144 (1996), pp. 2237, 2263, n. 72 (characterizing tax evasion as a form of theft); Robert W. McGee, "Is Tax Evasion Unethical?", Kan. L. Rev. 42 (1994), pp. 411, 412.
124. See Martin T. Crowe, The Moral Obligation of Paying Just Taxes (Washington, D.C.: Catholic University of America Studies in Sacred Theology No. 84) (1944) (those who "use fraud and other means to evade just taxes ... sin mortally by committing the sin of theft") (quoted in Leo P. Martinez, "Taxes, Morals, and Legitimacy", B. Y. U. L. Rev. (1994), pp. 521, 522, n. 3); Richard H. McAdams, "Group Norms, Gossip, and Blackmail", U. Pa. L. Rev. 144 (1996), pp. 2237, 2263, n. 72 (characterizing tax evasion as a form of theft); Robert W. McGee, "Is Tax Evasion Unethical?", Kan. L. Rev. 42 (1994), pp. 411, 412.
125. See Martin T. Crowe, The Moral Obligation of Paying Just Taxes (Washington, D.C.: Catholic University of America Studies in Sacred Theology No. 84) (1944) (those who "use fraud and other means to evade just taxes ... sin mortally by committing the sin of theft") (quoted in Leo P. Martinez, "Taxes, Morals, and Legitimacy", B. Y. U. L. Rev. (1994), pp. 521, 522, n. 3); Richard H. McAdams, "Group Norms, Gossip, and Blackmail", U. Pa. L. Rev. 144 (1996), pp. 2237, 2263, n. 72 (characterizing tax evasion as a form of theft); Robert W. McGee, "Is Tax Evasion Unethical?", Kan. L. Rev. 42 (1994), pp. 411, 412.
126. Catechism of the Catholic Church §2240 (Libreria Editrice Vatican, Provisional Draft 1992).
127. See, e.g., M. B. E. Smith, "Is There a Prima Facie Obligation to Obey the Law?", Yale L. J. 82 (1973), p. 950.
128. For a helpful treatment of such issues, see Liam Murphy and Thomas Nagel, The Myth of Ownership: Taxes and Justice (Oxford: Oxford University Press, 2002).
129. See John S. Carrol, "How Taxpayers Think About Their Taxes: Frames and Values", in Joel Slemrod (ed.), Why People Pay Taxes: Tax Compliance and Enforcement (Ann Arbor: University of Michigan Press, 1992), p. 47; Steven M. Shiffrin and Robert K. Triest, "Can Brute Deterrence Backfire? Perceptions and Attitudes in Taxpayer Compliance", Why People Pay Taxes, at p. 203, tbl. 2; Kent W. Smith, "Reciprocity and Fairness: Positive Incentives for Tax Compliance", Why People Pay Taxes, at pp. 233-235; Eric A. Posner, "Law and Social Norms: The Case of Tax Compliance", Va. L. Rev. 86 (2000), p. 1781.
130. See John S. Carrol, "How Taxpayers Think About Their Taxes: Frames and Values", in Joel Slemrod (ed.), Why People Pay Taxes: Tax Compliance and Enforcement (Ann Arbor: University of Michigan Press, 1992), p. 47; Steven M. Shiffrin and Robert K. Triest, "Can Brute Deterrence Backfire? Perceptions and Attitudes in Taxpayer Compliance", Why People Pay Taxes, at p. 203, tbl. 2; Kent W. Smith, "Reciprocity and Fairness: Positive Incentives for Tax Compliance", Why People Pay Taxes, at pp. 233-235; Eric A. Posner, "Law and Social Norms: The Case of Tax Compliance", Va. L. Rev. 86 (2000), p. 1781.
131. See John S. Carrol, "How Taxpayers Think About Their Taxes: Frames and Values", in Joel Slemrod (ed.), Why People Pay Taxes: Tax Compliance and Enforcement (Ann Arbor: University of Michigan Press, 1992), p. 47; Steven M. Shiffrin and Robert K. Triest, "Can Brute Deterrence Backfire? Perceptions and Attitudes in Taxpayer Compliance", Why People Pay Taxes, at p. 203, tbl. 2; Kent W. Smith, "Reciprocity and Fairness: Positive Incentives for Tax Compliance", Why People Pay Taxes, at pp. 233-235; Eric A. Posner, "Law and Social Norms: The Case of Tax Compliance", Va. L. Rev. 86 (2000), p. 1781.
132. See John S. Carrol, "How Taxpayers Think About Their Taxes: Frames and Values", in Joel Slemrod (ed.), Why People Pay Taxes: Tax Compliance and Enforcement (Ann Arbor: University of Michigan Press, 1992), p. 47; Steven M. Shiffrin and Robert K. Triest, "Can Brute Deterrence Backfire? Perceptions and Attitudes in Taxpayer Compliance", Why People Pay Taxes, at p. 203, tbl. 2; Kent W. Smith, "Reciprocity and Fairness: Positive Incentives for Tax Compliance", Why People Pay Taxes, at pp. 233-235; Eric A. Posner, "Law and Social Norms: The Case of Tax Compliance", Va. L. Rev. 86 (2000), p. 1781.
133. 15 U.S.C. §78j(b).
134. 17 C.F.R. §240.10b-5.
135. 40 S.E.C. 907, 912 (1961). Cady, Roberts assumed that the holder of nonpublic information would be a corporate insider, although subsequent cases have expanded the scope of "insider trading" to apply to outsiders as well.
136. Leading commentary includes Stephen Bainbridge, "The Insider Trading Prohibition: A Legal and Economic Enigma", Fla. L. Rev. 38 (1986), p. 35; Allison Grey Anderson, "Fraud, Fiduciaries and Insider Trading", Hofstra L. Rev. 10 (1982), p. 341; Victor Brudney, "Insiders, Outsiders, and Informational Advantages Under the Federal Securities Laws", Harv. L. Rev. 93 (1979), p. 322.
137. Leading commentary includes Stephen Bainbridge, "The Insider Trading Prohibition: A Legal and Economic Enigma", Fla. L. Rev. 38 (1986), p. 35; Allison Grey Anderson, "Fraud, Fiduciaries and Insider Trading", Hofstra L. Rev. 10 (1982), p. 341; Victor Brudney, "Insiders, Outsiders, and Informational Advantages Under the Federal Securities Laws", Harv. L. Rev. 93 (1979), p. 322.
138. Leading commentary includes Stephen Bainbridge, "The Insider Trading Prohibition: A Legal and Economic Enigma", Fla. L. Rev. 38 (1986), p. 35; Allison Grey Anderson, "Fraud, Fiduciaries and Insider Trading", Hofstra L. Rev. 10 (1982), p. 341; Victor Brudney, "Insiders, Outsiders, and Informational Advantages Under the Federal Securities Laws", Harv. L. Rev. 93 (1979), p. 322.
139. The most influential such work is Henry G. Manne, Insider Trading and the Stock Market (New York: Free Press, 1966).
140. Manne, supra note 79, at p. 233, n. 42.
141. Alan Strudler and Eric W. Orts, "Moral Principle in the Law of Insider Trading", Tex. L. Rev. 78 (1999), pp. 375, 383. Other morality-based theories of insider trading can be found in Leo Katz, Ill-Gotten Gains (Chicago: University of Chicago Press, 1996), pp. 171-195; Kim Lane Scheppele, " 'It's Just Not Right': The Ethics of Insider Trading", Law & Contemp Probs. 56 (1993), p. 123; Ian B. Lee, "Fairness and Insider Trading", Colum. Bus. Rev. (2002), p. 119. I should note, however, that only Strudler and Orts are explicit in minimizing the importance of harm.
142. Alan Strudler and Eric W. Orts, "Moral Principle in the Law of Insider Trading", Tex. L. Rev. 78 (1999), pp. 375, 383. Other morality-based theories of insider trading can be found in Leo Katz, Ill-Gotten Gains (Chicago: University of Chicago Press, 1996), pp. 171-195; Kim Lane Scheppele, " 'It's Just Not Right': The Ethics of Insider Trading", Law & Contemp Probs. 56 (1993), p. 123; Ian B. Lee, "Fairness and Insider Trading", Colum. Bus. Rev. (2002), p. 119. I should note, however, that only Strudler and Orts are explicit in minimizing the importance of harm.
143. Alan Strudler and Eric W. Orts, "Moral Principle in the Law of Insider Trading", Tex. L. Rev. 78 (1999), pp. 375, 383. Other morality-based theories of insider trading can be found in Leo Katz, Ill-Gotten Gains (Chicago: University of Chicago Press, 1996), pp. 171-195; Kim Lane Scheppele, " 'It's Just Not Right': The Ethics of Insider Trading", Law & Contemp Probs. 56 (1993), p. 123; Ian B. Lee, "Fairness and Insider Trading", Colum. Bus. Rev. (2002), p. 119. I should note, however, that only Strudler and Orts are explicit in minimizing the importance of harm.
144. Alan Strudler and Eric W. Orts, "Moral Principle in the Law of Insider Trading", Tex. L. Rev. 78 (1999), pp. 375, 383. Other morality-based theories of insider trading can be found in Leo Katz, Ill-Gotten Gains (Chicago: University of Chicago Press, 1996), pp. 171-195; Kim Lane Scheppele, " 'It's Just Not Right': The Ethics of Insider Trading", Law & Contemp Probs. 56 (1993), p. 123; Ian B. Lee, "Fairness and Insider Trading", Colum. Bus. Rev. (2002), p. 119. I should note, however, that only Strudler and Orts are explicit in minimizing the importance of harm.
145. See generally Feinberg, supra note 51.
146. 445 U.S. 222 (1980).
147. 463 U.S. 646 (1983).
148. 401 F.2d 833 (2d Cir. 1968).
149. I b i d.
150. 521 U.S. 642 (1997).
151. Ibid. at p. 652.
152. See, e.g., Strudler and Orts, supra note 81.
153. Ibid. at pp. 380, 408-417.
154. See Green, "Lying, Misleading, and Falsely Denying", supra note 42, at pp. 182-191.
155. See United States v. Regent Office Supply, 421 F.2d 1174, 1179 (2d Cir. 1970).
156. The leading case is Laidlaw v. Oregon, 15 U.S. (2 Wheat.) 178, 193-194 (1817) (buyers who learned that a peace treaty ending the War of 1812 had been signed, thereby ending the blockade of New Orleans, did not commit fraud when they failed to disclose such information to seller from whom they acquired large quantities of tobacco).
157. I am certainly not the first to characterize insider trading as a form of "cheating." See, e.g., William R. Lucas et al., "Common Sense, Flexibility, and Enforcement of the Federal Securities Laws", Business Lawyer 51 (1996), pp. 1221, 1233, 1237; Strudler and Orts, supra note 81, at p. 412.
158. I am certainly not the first to characterize insider trading as a form of "cheating." See, e.g., William R. Lucas et al., "Common Sense, Flexibility, and Enforcement of the Federal Securities Laws", Business Lawyer 51 (1996), pp. 1221, 1233, 1237; Strudler and Orts, supra note 81, at p. 412.
159. The fact that the trader does not ordinarily know the actual identity of his trading partner does not seem to change the analysis.
160. SEC v. Switzer, 590 F. Supp. 756 (W.D. Okla. 1984).
161. The district court held, under then-current law, that Switzer had not committed insider trading. Ibid. at p. 760.