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Sigler: Restoring the Moral Landscape

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Restoring the Moral Landscape: Character and Blame in Stuart Green’s Thirteen Ways to Steal a Bicycle

MARY SIGLER*

INTRODUCTION

S

tuart Green ’s thoughtful and comprehensive analysis of the law and morality of theft fills a critical gap in the scholarly literature. As he carefully shows, the law of theft evolved as a patchwork of disparate prohibitions that failed to provide a workable scheme of prosecution and punishment for theft. “ A succession of judicial decisions and legislative enactments had created a dense body of law, full of arcane and inconsistent rules, overlapping offenses, and procedural loopholes. ”1 Unfortunately, the determination of twentieth century reformers to streamline theft law resulted in an overcorrection of sorts, as a wide range of theft offenses was assimilated to a single “ unitary ” offense that fails to distinguish among the various means by which theft can be committed and the different types of property that can be stolen.2 “ The effect has been a flattening in the moral landscape of theft law.”3 Green ’s “ normative reconstruction ” of theft law, which aims to restore relevant moral distinctions without reintroducing t he over-particularism and complexity of an earlier era, provides considerable conceptual clarity. 4 Drawing on a mix of penal theories and methods of inquiry, Green develops an account of the “ theoretical foundations of theft law ” designed to capture and reflect widely shared intuitions of criminal justice. 5 In the

* Associate Dean of Faculty, Professor of Law, Arizona S tate University S andra Day O ’Connor College of Law. 1 S TUART G REEN, T HIRTEEN WAYS TO S TEAL A B ICYCLE : T HEFT L AW IN THE INFORMATION A GE 8 (2012).
2 3 4 5

See id. at 8-9. Id . at 31. See id . at 70. Id . at 270.

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process, he establishes that the essential wrongness of stealing is deeply intuitive but far more complex than the unitary character of modern theft law would suggest. Green ’s reliance on a mixed approach —a mixed theory of punishment and a mix of empirical data and normative analysis —almost certainly corresponds to many people’s intuitions about justice and the r elevance of community perceptions for sound criminal justice policy. Thus, Green adopts a hybrid theory of punishment that is essentially consequentialist , but includes moral desert as a retributive side constraint to ensure that only the deserving are legitimately punished and only in proportion to their blameworthiness.6 By the same token, he relies on the results of empirical studies, including his own original empirical research, to supplement his normative analysis of the nature and significance of various forms of stealing—”to check the validity of his . . . own intuitions, and as a means for assessing the likely effectiveness of offense grading. ”7 In this way, Green ’s general consequentialism dovetails with his determination that theft law reflect people’s intuitions, lest citizens become “ less likely to cooperate with or acquiesce in the system ’s demands.”8 Despite the initial appeal of these mixed approaches, the attempt to combine popular aspects of different theories and methodologies raises some concerns. As a general matter, mixed approaches risk being ad hoc in the absence of some principled basis for resolving conflict between competing accounts.9 For example, retributive and consequentialist considerations will often point to different bases and degrees of punishment,10 though Green draws on both traditions to identify which acts of stealing should be punished and how much. 11 Similarly, despite the allure of opinion surveys for policy making —especially in a democracy, and especially when opinions seem to converge —Green acknowledges that prevailing opinions about punishment may not be normatively defensible.12 As a result, it is unclear whether Green has actually identified a principled basis for the grading scheme he offers for theft offenses.

6 Id . at 71. According to Green, he is following the approach of, among others, Antony Duff. Id . at 301 n.3. For what it is worth, this is not how I read Duff. See R.A. D UFF, P UNISHMENT, COMMUNICATION, AND COMMUNITY 30 (2001) (describing his account as “retributivist: it justifies punishment as the communication of deserved censure. . . . This is not to say, however, that my account is a partly consequentialist one . . .”). 7 8

G REEN, supra note 1, at 57. Id . at 53. 9 See id. at 21. 10 See id. at 70-71. 11 See id. at 2, 70-71. 12 Id . at 57.

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In light of these concerns, my plan is to muddy the conceptual waters that Green has so painstakingly cleared. I will explore the limitations of his mixed approaches by focusing on issues of character that are largely absent from his analysis. Introducing character may broaden the range of considerations relevant to the moral analysis that underlies Green ’s legal prescriptions and provide an added dimension to the normative assessment of popular opinion. With Green, I lament the “ flattening in the moral landscape”13 effected by the modern consolidation of theft law, but I am not entirely convinced by his attempt at restoration. I. Mixed Approaches A. Punishment A mixed theory of punishment, which typically combines elements of both consequentialist and retributive justifications, has an obvious appeal. In the context of punishment, consequentialism commits us to punishing only those, and only as much, as can be expected to produce a net social benefit.14 In particular, the crime control benefits associated with deterrence, incapacitation, and rehabilitation supply a socially responsible basis for punishment that avoids the needless infliction of suffering.15 But as Green notes, consequentialism alone risks justifying the infliction of punishment on the innocent or otherwise undeserving if doing so would yield a net social benefit.16 To address this problem, Green, like others before him,17 relies on moral desert as a side constraint to limit punishment to the blameworthy.18 In this way, the mixed theorist hopes to enjoy the best of both worlds —only socially useful punishment and only for the deserving. According to this form of negative retributivism, “ [t]he claim is not that society should punish the blameworthy because they deserve it, but simply that society should not punish those who are not blameworthy.”19 But the consequentialist justification can misfire in another way —by failing to justify punishment in cases of the morally deserving where no
See G REEN, supra note 1, at 31. Id. at 70-71. 15 See, e.g ., JEREMY B ENTHAM , A N INTRODUCTION TO THE P RINCIPLES OF M ORALS AND LEGISLATION, at clxvi (Leslie B. Adams, Jr. 1986) (1780) (“[A]ll punishment is mischief: all punishment in itself is evil. Upon the principle of utility, if it ought at all to be admitted, it ought only to be admitted in as far as it promises to exclude some greater evil.”). 16 See G REEN, supra note 1, at 71. 17 See, e.g ., H.L.A. HART, P UNISHMENT AND RESPONSIBILITY: E SSAYS IN THE P HILOSOPHY OF LAW 8-9 (1968).
14 18 19 13

G REEN, supra note 1, at 71. Id.

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positive social consequence will result. Various thought experiments designed to highlight retributive intuitions suggest that negative retributivism may be more attractive in theory than in practice. 20 Or at least in some contexts more than others. It is one thing to forgo punishment —or criminal justice processes altogether —in de minimis theft cases, such as petty shoplifting; it is quite another in the case of a brutal rapist or murderer, who, through some fortuity, poses no further risk to the public and whose punishment will not yield a net social benefit.21 Green ’s mixed theory cannot accommodate the deep intuition that punishment in the latter case is a basic requirement of justice even if it will not otherwise produce positive social consequences.22 To the extent that Green ’s mixed approach does reflect people’s intuitive penal judgments in particular cases, we might regard this as a reason for rethinking, rather than crediting, those judgments.23 The first worry about Green ’s hybrid theory of punishment is that it depends on an arbitrary delineation between what Hart characterized as the “ general justifying aim ” of punishment and the relevant “ principles of distribution.”24 Like Hart, Green pairs a consequentialist justifying aim with a retributive principle of distribution. 25 Despite the venerable pedigree of this approach, however, it fails to reconcile the fundamental tension between consequentialism and retributivism at its core. 26 Why should we forgo good consequences in the absence of blameworthiness? And why should we forgo deserved punishment in the absence of good

See, e.g., M ICHAEL M OORE , P LACING BLAME 99-101 (1997). See, e.g., id. As Moore notes, the thought experiment requires us to hold constant all consequentialist reasons to punish, then to consider whether we are comfortable forgo ing punishment in these cases. See id. at 101. Moore emphasizes that this is the beginning, not the end, of building a case for retributivism. See id . at 103. 22 See Paul H. Robinson, The Ongoing Revolution in Punishment Theory: Doing Justice as Controlling Crime, 42 A RIZ. S T. L.J. 1089, 1105 (2011) (“Laypersons see punishment as something that is properly imposed according to desert, that is, blameworthiness.”). See generally P AUL H. ROBINSON, D ISTRIBUTIVE P RINCIPLES OF CRIMINAL LAW: WHO S HOULD BE P UNISHED HOW M UCH? 4-5 (2008) (defending “empirical desert,” which determines the distribution of punishment according to empirical studies of people’s penal judgments).
21

20

A process that distinguishes between initial intuitions and “considered convictions of justice” is captured in Rawls’s “reflective equilibrium.” See JOHN RAWLS, A THEORY OF JUSTICE 19-21, 46-47 (1971). For a discussion of this process in the context of punishment, see Mary S igler, The Methodology of Desert, 42 A RIZ. S T. L.J. 1173, 1179-81 (2011). See HART, supra note 17, at 3-4, 8-9. See G REEN, supra note 1, at 148. 26 See John Bronsteen, Retribution’s Role, 84 IND. L.J. 1129, 1138 (2009) (“Hart offered no meaningful defense of a central assumption within his theory: that principles of distribution are not inherently a part of the general justification of punishment.”).
25 24

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consequences? Moreover, as a matter of principle for some, 27 and of intuition for many others,28 consequentialism in punishment (with or without side constraints) mischaracterizes the legitimate grounds for punishment. Indeed, across a wide range of offenses, empirical evidence suggests that people view punishment as justified because it is deserved.29 On this view, punishment is not merely permissible, it is (at least prima facie) morally required.30 As a result, Green ’s conceptual framework for “ evaluating the moral content of theft ” law rests on an uncertain moral and empirical foundation.31 Of course, Green ’s project is not to settle persistent debates in punishment theory. So rather than continue to grouse about the mixed theory of punishment, I will instead raise the possibility that it ’s not mixed enough. Specifically, Green ’s focus on consequentialism and retributivism neglects considerations of character that may also be relevant in assessing moral blameworthiness. To be sure, character can operate as something of a wild card in criminal law and sentencing, but a blameworthiness assessment that omits such considerations is unlikely to capture the “ texture of our moral experience.”32 Indeed, though Green does not include a systematic analysis of character in theft law, such considerations do seem to find their way in at various points, including his discussion of “ bad looting.”33 In that context, Green contrasts sympathetic looters, who steal necessities to survive during an emergency, with “ bad looters ” motivated by “ greed and opportunism,” who take advantage of a crisis to exploit their fellows rather than exhibit the “ pity or compassion ” appropriate to the circumstances.34 As discussed more fully below, this foray into character assessment strikes me as both correct and relevant to our understanding of the wrongness (or not) of theft in these cases.35

27 See, e.g ., D UFF, supra note 6, at 13 (“[A]ny system of punishment with such consequentialist justifying aims as deterrence, incapacitation, or reform denies the guilty the respect due to them as responsible agents.” (citation omitted)). 28 See Robinson, supra note 22, at 1105 (reporting results of empirical studies of people’s intuitions about punishment).

See id. at 1107. M OORE , supra note 20, at 154 (“As a theory of a kind of justice, [retributivism] obligates us to seek retribution through the punishment of the guilty.”). 31 G REEN, supra note 1, at 70. 32 ROSALIND HURSTHOUSE , O N V IRTUE E THICS 55 (1999). 33 G REEN, supra note 1, at 127. 34 Id. 35 Green also touches on character considerations in his discussion of “dishonesty” as the wrongful element in stealing. See id. at 111-13.
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B. Methodology Green ’s mixed methodology, combining normative and empirical inquiry, faces some of the same indeterminacy problems as a mixed theory of punishment. Although Green relies on empirical data primarily as a check on his own intuitions, it is hard to see exactly how this process works or, more importantly, whether it is valid. At various points, Green expresses surprise at the results of his empirical study —for example, the divergence between his own and his respondents ’ assessment of the seriousness of an offense—concluding that this “ moral indeterminacy ” points to a particular prescription for theft law. 36 But why is this lack of convergence relevant to moral blameworthiness?37 Or perhaps more to the point, to what degree is it relevant? It remains unclear when and how we are to credit the empirical data and when to override it with normative analysis. For example, Green notes that, somewhat surprisingly, study respondents ranked “ theft by deception ” as less serious than virtually all other forms of theft.38 He speculates that this result may reflect the view that victims of such deception deserve “ at least some of the blame for the offender ’s act.”39 Further, he observes that: (1) “ as a historical matter, courts and legislatures were slow to condemn theft by deception in the same terms as other forms of theft,” invoking “ a rule of caveat emptor,” and (2) that “ society maintains something of a grudging respect for, or at least fascination with, particularly clever and audacious fraudsters. ”40 Now, these strike me as plausible explanations for people ’s views of fraud, but I cannot imagine why we would credit them in assessing the moral blameworthiness of fraud.41 First, these explanations amount to a kind of blame-the-victim mentality that seems morally indefensible and otherwise out of place in the criminal law. Moreover, though Green is apparently untroubled here by the invocation of caveat emptor, it seems inconsistent with his preoccupation elsewhere with the potentially market chilling consequences of criminal prohibitions. 42 Surely a regulatory regime

Id . at 128 . To see how I address this question, see Mary S igler, The Political Morality of the Eighth Amendment, 8 O HIO S T. J. CRIM. L. 403, 417-18 (2011). See also David Copp, Moral Skepticism , 62 P HIL . S TUD. 203, 203 (1991) (“[I]t is entirely clear that there is no sound argument from disagreement alone to an interesting form of skepticism [about moral truth].”).
37

36

G REEN, supra note 1, at 130. Id. at 129. 40 Id. at 130. 41 As noted, Green’s consequentialism offers at least one answer: “When criminal codes deviate from the norms of the community, citizens may be less likely to cooperate with or acquiesce in the system’s demands.” Id. at 53.
39 42

38

Compare id. at 133 (discussing the historical application of caveat emptor), with id. at 155

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that leaves individuals at the mercy of con men and hustlers tends to undermine confidence in markets and market transactions. In any event, I cannot discern Green ’s basis —or any principled basis at all —for deferring to community opinion in some cases (or to some degree) but not in others. I now suggest that introducing character as an aspect of the blameworthiness inquiry might provide a more complete, if messier, account of theft law ’s moral foundations. In particular, I believe that considerations of character may enrich (and complicate) our understanding of the wrongness of various forms of theft. It may also discipline our reliance on intuitions about particular kinds of theft cases by linking them to a broader set of principles and values that inform our considered convictions of justice. Absent these considerations, Green ’s analysis may itself represent a flattening of the moral landscape. II. Virtue and Character

The consequentialism and retributivism that dominate modern punishment theory (and Green ’s analysis) represent the leading moral traditions in western normative ethics —consequentialism (especially utilitarianism) and deontology.43 A third tradition —virtue ethics —has played less (or at least less systematic) of a role in Anglo-American criminal law.44 Virtue ethics is distinguished by its focus on motive and character in moral assessment, and such considerations are viewed as largely irrelevant to establishing criminal liability. 45 Indeed, focusing on character, rather than conduct or consequences, raises the specter of punishing people merely for their corrupt or vicious thoughts 46—or withholding punishment in cases where harmful conduct is deemed “ out of character ” for a particular defendant.47 Despite these limitations, character and motive do operate at the
(discussing the chilling effects of criminal sanctions both economically and socially ).
43 John Bronsteen, Retribution’s Role, 84 IND. L.J. 1129, 1130 (2009). Consequentialism, in punishment and in general, defines morally right action in terms of its consequences; deontology holds that the moral status of an act is determined independently of its consequences. Id . On the latter view, right and wrong are derive d from a set of distinctive rights and duties, which may or may not reliably produce positive social consequences in particular cases. 44 Lee J. S trang, Originalism and the Aristotelian Tradition: Virtue’s Home in Originalism , 80 FORDHAM L. REV . 1997, 2026 (2012). 45 See JOSHUA D RESSLER, UNDERSTANDING CRIMINAL L AW 123 (2009) (noting the limited instances in which motive is relevant in the criminal law); cf. M OORE , supra note 20, at 549.

M OORE , supra note 20, at 577-78. See id. (discussing problems of character theory of responsibility). For efforts to translate the insights of virtue ethics into law, see S herman J. Clark, Law as Communitarian Virtue Ethics, 53 BUFF. L. REV . 757, 757-60 (2005)).
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margins of criminal law, especially in the context of sentencing. As a general matter, an offender ’s expression of remorse may affect the severity of his or her sentence.48 Moreover, in a capital case, the sentencing jury is required to consider the defendant ’s character “ as a constitutionally indispensable part of the process of inflicting the penalty of death. ”49 Similarly, although motive is generally not an element the prosecution must prove in establishing an offender ’s guilt,50 motive does figure in the definitions of certain criminal offenses and affirmative defenses. 51 Finally, in accord with most people’s intuitions, criminal law doctrine reflects the morally relevant difference between otherwise elementally indistinguishable homicides.52 Thus, for example, two premeditated homicides —one motivated by the desire to collect on an insurance policy, the other by the desire to end a loved one ’s suffering—may trigger different sentencing structures and, in most cases, different punishment.53 All of this is to say that character considerations, duly circumscribed, may have a constructive role to play in the criminal law. In particular, my present suggestion is that character and motive may be relevant to the blameworthiness assessment of “ crime types ” but not “ crime tokens ”—that is, in establishing the blameworthiness of certain kinds of conduct but not the culpability of individual offenders. 54 On this approach, character considerations would not be an element in the definition of the offense or an aspect of the mens rea analysis. Instead, it would inform our assessment of the relative severity of certain types of theft in establishing a grading scheme. To highlight the possible relevance of character and motive to moral blameworthiness, I will consider three aspects of theft law featured in

Jeffrie G. Murphy, Remorse, Apology, and Mercy , 4 O HIO S T. J. CRIM . L. 423, 423 (2007). Woodson v. North Carolina, 428 U.S . 280, 304 (1976); see also Lockett v. Ohio, 438 U.S . 586, 605 (1978) (“[A] statute that prevents the sentencer in all capital cases from giving independent mitigating weig ht to aspects of the defendant’s character and record . . . proffered in mitigation creates the risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty.”).
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See D RESSLER, supra note 45. S o-called specific intent offenses are defined in terms of the offender’s motive. See id. S imilarly, self-defense is established with reference to an individual’s motive —defending oneself or others —for intentional homicide. See id .
51

50

See generally id . at 505-52. Most capital sentencing statutes include homicide motivated by “pecuniary” gain as an aggravating factor that may render an offender eligible for the death penalty. See, e.g ., A RIZ. REV . S TAT. A NN. § 13-751(F) (2012) (listing aggravating factors, including commission of first degree murder with the expectation of “pecuniary value”).
53 54

52

G REEN, supra note 1, at 72.

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Green ’s analysis: looting and embezzlement; 55 the “ theft ” of intellectual property;56 and the act-omission distinction as a basis for theft -offense grading.57 With the exception of looting, in each of these contexts, Green ’s analysis misjudges morally relevant distinctions, undervaluing them in some cases and overstating them in others. Attention to motive and character may improve these calibrations. A. Looting and Embezzlement Green reaches for character considerations in assessing the relative severity of looting as a form of theft. Thus, he arrays looters along a continuum depending on their motives and the character their actions reflect, concluding that “ bad looting“ should be treated more severely under the law than garden-variety cases of burglary and larceny. 58 Bad looters are: urban predators, perhaps already pursuing a life of crime, [who] use the occasion of an emergency to exploit their neighbors at the hour of their greatest vulnerability, carting away goods of types and quantities they could hardly begin to use for themselves, which they plan to sell for a quick profit.59 “ Good looters ” are those who steal food, medicine, and other supplies to survive during a natural disaster or similar civil crisis. 60 “ Such circumstances make the [good] looter ’s stealing a necessity, and thereby mitigate the wrongfulness of the act.”61 This analysis illustrates the potential relevance of motive and character in assessing the blameworthiness of otherwise similar offenders. For even if we imagine that the value of the property taken is identical in both cases (perhaps the good looters required expensive pharmaceuticals, for example) we rightly view the two kinds of cases as morally distinguishable. With Green, we will favor a criminal code that reflects that
Id. at 125-28. Id. at 245-64. 57 Id. at 171-75. 58 Id . at 126-28. 59 Id . at 127. Green also discusses cases of looting that fall somewhere between these extremes, about which he seems ambivalent. See id. Thus, he notes that some looters may be “impoverished and alienated citizens” who resort to looting under certain circumstances, stealing from businesses owned and managed by faceless entities. Id . The relevance of these details is unclear, though it suggests that Gre en views these instances of looting as morally ambiguous. Indeed, this probably corresponds to many people’s intuitions, but it is not obvious that the identity of the victim in these cases is morally relevant to the wrongness of the theft. The question might be illuminated by an assessment of character.
56 60 61 55

G REEN, supra note 1, at 126-27. Id . at 127.

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distinction, providing significant punishment for b ad looters and little or none for the rest. In his assessment of embezzlement,62 however, Green misses an opportunity to explore the contours of the offense with a similar nuance. As he notes, embezzlement, which involves theft accomplished by a breach of trust, is generally treated as a less severe form of theft than otherwise seemingly comparable offenses, such as extortion and burglary. 63 Reflecting on this distinction, Green observes that Islamic law justifies this relatively mild treatment of embezzlement based on the more limited social harms it is likely to generate because it is confined to the relationship between a single offender and victim.64 Although Green initially discusses the moral significance of a breach of trust in various settings 65—laying the groundwork for a thoughtful refutation of the current grading scheme —he declines to second-guess the social utility rationale that he suspects may account for it.66 Considerations of character suggest another way to think about embezzlement, treating it as a more, not less, serious form of theft. The trust relationship at the heart of embezzlement is not only socially valuable but also morally significant. As wrong as it is to steal from a stranger, stealing from someone who has placed his or her trust in us represents a special form of betrayal. This is captured in the Falstaff example that Green cites.67 In Shakespeare’s telling, Falstaff betrays Prince Hal, accepting money from him to hire an army but instead recruiting amateurs and pocketing the cash for himself.68 “ If I be not ashamed of my soldiers, I am a soused gurnet. I have misused the king’s press damnably.”69 The breach of trust that embezzlement entails accounts for the poignancy of Falstaff ’s self-reproach, and it seems curious that Green chose not to explore this insight with the same sensitivity that informs his looting analysis. 70

Id . at 125-26. Id . 64 Id. at 126. 65 Id . at 125. 66 See G REEN, supra note 1, at 125-26. 67 Id. 68 Id. at 125. 69 Id. (quoting WILLIAM SHAKESPEARE , T HE FIRST P ART OF KING HENRY THE FOURTH, act 4, sc. 2).
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62

Informational blackmail presents another opportunity to observe the potential value of character in blameworthiness assessments. Informational blackmail involves a threat to disclose embarrassing or damaging personal information unless the victim agrees to compensate the blackmailer. See id. at 201-02. By definition, the conduct that the blackmailer threatens —disclosure —is lawful; he is legally entitled to publicize the information he possesses. His willingness to refrain from disclosure in exchange for money or other

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B. Intellectual Property Green ’s analysis of theft in the context of intellectual property is informed by the results of his (and other) empirical work on perceptions about illegally downloading books, music, and other intangible media. 71 He notes that a slim majority of study respondents viewed stealing a physical book as more blameworthy than illegally downloading a comparably priced computer file, but also that a “ significant minority (44 percent)” viewed both forms of misappropriation as equally blameworthy.72 “ These data suggest that the general population may well be split on the question of infringement/theft equivalence. ”73 Accordingly, Green urges caution, suggesting that it would be problematic “ to prosecute morally ambiguous offenses.”74 This may indeed be the right policy answer, but Green ’s reliance on survey data does not inspire confidence. 75 As an initial matter, we should be wary of moral judgments “ influenced by an excessive attention to our own interests.”76 Indeed, if, as appears to be the case, young people are most likely to engage in illegal downloading and to view it as morally neutral conduct, we have at least one reason to doubt the credibility of their views. Generations born into the age of the Internet, with its ready access to online copyrighted material, may lack the critical perspective to meaningfully assess the morality of their conduct. 77 The sense of entitlement —to the product of another person ’s labor —is not vindicated simply because the act can be accomplished from a desk chair and largely with impunity. And while Green seems to doubt the legitimacy of law enforcement and entertainment industry efforts to deploy the rhetoric of theft in an aggressive anti-infringement educational campaign,78 this strikes
consideration, however, transforms his threat into a criminal offense under modern theft law. Id. at 202. Thus, what distinguishes the blackmailer from an intrepid journalist committed to the public’s right to know is the blackmailer’s base motive. Green, however, argues that informational blackmail, if criminalized at all, should not be treated as a form of theft. Id. Id. at 249-50. G REEN, supra note 1, at 250. 73 Id. 74 Id. at 268. 75 To be sure, Green also provides a conceptual analysis to show why he thinks illegal downloading is morally ambiguous, but he does so with the aim of developing “a conceptual framework that will explain why the study’s subjects might have made the intuitiv e judgments they did.” Id. at 204. Framing the inquiry this way seems more likely to produce an account that validates, rather than critically reflects on, people’s intuitions. 76 RAWLS , supra note 23, at 47. 77 See id. (describing “considered judgments” as those “in which our moral capacities are most likely to be displayed without distortion”).
72 78 71

See G REEN, supra note 1, at 247-49.

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me as a worthwhile undertaking if infringement is best conceptualized as theft 79—the contrary view of the world ’s teenagers notwithstanding. Although I confess that I do not have a well-informed opinion about whether illegal downloading should count as theft , considerations of character and motive may at least temper our enthusiasm for bare intuitions that do not accord with our more considered convictions of justice. As a general matter, the inclination to exploit the work of another for our own convenience and satisfaction is something we should aim to discourage rather than indulge. C. Act and Omission Green introduces the act-omission distinction in connection with “ passive” theft offenses, such as failing to return lost or misdelivered property or receiving stolen goods.80 From Green ’s perspective, the passive nature of these offenses establishes that they are generally less serious than active forms of theft.81 Moreover, because theft by failing to return “ imposes a duty to act, rather than a duty not to act, it goes against the grain of a criminal law that tends to disfavor crimes of omission. ”82 Indeed, individuals generally do not face criminal liability for failing to help a needy stranger, even in life-or-death situations where they could easily do so without risk or significant inconvenience to themselves. 83 Green also notes that treating theft by omission “ as less unambiguously wrongful, and therefore subject to less severe punishment, than most kinds of affirmative theft ” is “ consistent with the empirical study of public perceptions of theft wrongfulness.”84 As Green suggests, the act-omission distinction is intuitively compelling. In a variety of settings, the failure to act generally lacks the close causal nexus to a harmful result typically supplied by prohibited conduct. Thus, the Bad Samaritan bystander, witnessing a brutal assault, cannot be said to have caused the victim ’s injuries, even in circumstances where he or she had the power to prevent them.85 Similarly, in the context of theft, the thief is distinguishable from the receiver of stolen goods, who

Especially if, as Green speculates, these efforts may be having a salutary effect. Id. at 249. Id. at 171-72. Green carefully distinguishes among these offenses but argues that instances of theft by omission generally are systematically less wrongful and thus typically subject to less severe punishment than cases of affirmative theft. Id. at 180. 81 Id. 82 Id. at 171. 83 Thomas C. Galligan, Jr., Aiding and Altruism: A Mythopsycholegal Analysis , 27 U. M ICH. J.L. REFORM 439, 462 (1994).
80 84 85

79

See G REEN, supra note 1, at 180. See M OORE , supra note 20, at 273-74.

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“ does not cause any change in the status of the owner ’s rights.”86 But attention to motive and character suggests that the full moral story, and thus the blameworthiness assessment, is not adequately captured by the act-omission distinction. Consider one of Green ’s examples involving the “ lost ” iPhone prototype that turned up on a tech-gadget website.87 In that case, as reported, an Apple engineer left the valuable prototype in a bar, where another man discovered it and sold it to a website for $5000. 88 The site then published the phone’s specifications six months before Apple ’s official launch.89 For Green, the case illustrates the challenges of justifying criminal liability for the website editors, whose only role was to receive the stolen property from the bar patron who found it. “ To extend liability to those who, after the fact, ratify or endorse the criminal acts of others, ” Green suggests, represents “ a significant and potentially dangerous expansion in the scope of accomplice liability.”90 But the case also presents an opportunity to assess blameworthiness in cases of passive theft more generally. Consider the individual who found the phone and rather than make even a modest attempt to locate the rightful owner —or to leave the property untouched —sought to capitalize on the owner ’s misfortune and turn a profit. Although a poor fit under traditional omission liability principles at common law,91 the finder ’s motives here are morally indistinguishable from the bad looters whom Green was keen to punish.92 That the looters affirmatively stole property, while the finder only failed to return it, does not make the conduct any less socially irresponsible or morally repugnant. 93 Although Green

G REEN, supra note 1, at 188. Id. at 190. 88 Id. 89 Id. 90 Id. at 191. 91 Green considers the traditional omission principles of common law duty in the case of an English magistrate who found an expensive watch in a supermarket and gave it to his wife as a gift. See id. at 173. Noting that the case does not fit into a traditional category of common law duty, and raises some enforcement problems, Green doubts the wisdom of theft liability in such a case. See id. at 174-75.
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See G REEN, supra note 1, at 192-94. Cf. Ronald Dworkin et al., Assisted Suicide: The Philosophers’ Brief, N.Y. REV . BOOKS (Mar. 27, 1997), http://www.nybooks.com/articles/archives/1997/mar/27/assisted-suicide-thephilosophers-brief/?pagination=false (denying that there is a pertinent moral difference between killing and letting die in the case of terminally ill patients who wish to terminate their lives). Although this argument did not prevail at the S upreme Court, this was at least partly because the Court credited the “common-sense” distinction between killing and letting die. See id. As Dworkin notes, the relevant distinction is not between acts and omissions but
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acknowledges that finders and receivers behave dishonestly and immorally in such cases,94 he rejects criminal liability for them because he focuses on the modest social impact of one-off instances of receiving (i.e., buying) stolen property, the harm gap between stealing and failing to return another ’s property, and the moral ambiguity of various passive theft scenarios.95 These considerations may justify caution in criminaliz ation decisions, but not the categorical and in-principle discounting of passive theft that Green offers.

CONCLUSION
Of course it is always easier to muddy the water than to clear it, and Green ’s book is a significant advance toward clarity in the law of theft. Focusing, as I have, on quibbles does not do justice to how thoughtful and important Green ’s contribution is. By developing a comprehensive analysis of theft law against the backdrop of consolidation, he has set the terms for a long-overdue debate. In this way, Green has more than met his goal —”to identify issues, clear away conceptual underbrush, and challenge orthodoxies.”96 Although I believe that considerations of character might enrich the analysis of moral and legal blameworthiness, I suspect that this would only affect criminalization decisions at the margins. Indeed, after factoring in the range of practical considerations that Green addresses, it is possible that my approach would not significantly alter his framework for grading theft offenses. Character considerations militate, with Green, against the crude consolidation of modern theft law, but also against Green ’s discounting of significant moral distinctions —and against a too-ready willingness to cede moral authority to unreflective commun ity intuitions. While Green ’s use of this data is more measured and subtle than many others who wish to harness this resource, it remains unclear whether and to what extent this information is instructive. My own reliance on intuitions —of what counts as more or less blameworthy —reflects the same tension. The goal is to situate these judgments in a broader moral framework. But for all of his normative reflection, I am not yet convinced that Green has truly grappled with the tensions at the center of his analysis. Considerations of character, though far from a panacea, will necessarily
between the good or bad motives of those who act or decline to act. Id. See G REEN, supra note 1, at 194-95. See id. at 185, 190-92. Green raises a number of concerns about the moral ambiguity surrounding found property, and it is easy to imagine more sympathetic cases than the iPhone bandit. See id. at 174-75. But this suggests that we should array failure to return cases along a continuum, as we did with looters, not discount altogether the idea of criminalization.
95 96 94

Id. at 270.

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complicate the inquiry —but the result, I believe, will be greater moral clarity.

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