It's Not Too Difficult: A Plea to Resurrect the Impossibility Defense

The impossibility defense has baffled legal scholars, courts, and attorneys. This defense is especially difficult for two main reasons. First, it is not obvious which kinds of attempts it exculpates, which kinds of attempts it does not exculpate, and why it works only for the former and not the latter. Second, courts that have not resolved the first set of difficulties have only compounded the confusion by misstating and misapplying the impossibility defense.

In particular, they have mistaken factual impossibility for legal impossibility and have interpreted certain factual impossibility situations as hybrid-impossibility situations. As I explained in the Introduction, all of this confusion led the MPC to give up on the impossibility defense, and most jurisdictions then followed the MPC.