The right to trial by jury and the requirement of proof beyond a reasonable doubt are two of the most fundamental commitments of American criminal law. This article asks how the two are related, that is, whether disagreement among jurors implies anything about whether the beyond a reasonable doubt standard has been satisfied: Does the due process requirement of the beyond a reasonable doubt standard also require jury unanimity in criminal cases? Drawing on literature about the epistemological significance of disagreement, this article considers the “equal-weight view” and its implications for the unanimity rule in criminal jury decision-making. The equal-weight view says that, roughly speaking, when people disagree on a topic, each view should be given equal weight. This implies, this article concludes, that the unanimity rule is required as a way of enforcing the beyond a reasonable doubt requirement. This article further concludes, however, that jurors should not always be instructed to apply the equal-weight view in their deliberation. Jurors, when applying crime definitions to particular cases, make determinations about both historical facts and normative issues through moral terms like “reckless,” “unjustifiable,” “depraved,” “cruel,” and “heinous,” which are common in criminal law. This article argues that while the equal-weight view should guide the jurors in determining factual issues, it is not the correct model for moral issues, not only because it would imply that acquittals are appropriate in many cases involving controversial moral questions but also because having the jurors follow it would undermine the basic justification for having the criminal jury as an articulator and enforcer of morality.
1. Consider, for instance, the holding in the seminal case, Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” The phrase “must be submitted to a jury, and proved beyond a reasonable doubt” is repeated throughout the Supreme Court jurisprudence; see, e.g., Blakely v. Washington, 542 U.S. 296, 301 (2004).
2. Johnson v. Louisiana, 406 U.S. 356 (1972).
3. Id. at 362.
4. Id. at 400–401 (Marshall, J., dissenting).
5. Id. at 392 (Douglas, J., dissenting). Both Justices Marshall and Douglas took great pains to note that the correct legal consequence of a deadlocked jury may be a retrial as opposed to an outright acquittal, but there is still a puzzle here as to whether the justices are correct in their general linking of disagreement with doubt.
6. Id. at 366.
7. Henry Sidgwick, The Methods of Ethics (7th ed. 1907), at 341–342.
8. For recent collections of essays, see, e.g., The Epistemology of Disagreement: New Essays (David Christensen & Jennifer Lackey eds., 2013); Disagreement (Richard Feldman & Ted A. Warfield eds., 2010); The Epistemology of Disagreement, 6 Episteme 231–353 (David Christensen, ed., 2009) (special issue devoted to the epistemology of disagreement). For a recent bibliography, see Bryan Frances, Disagreement (2014), at 208–211.
9. Before proceeding, let me mention two preliminary points. First, because the focus of this article is on a relationship between the right of jury trial and the requirement of proof beyond a reasonable doubt, it assumes that the proof beyond a reasonable doubt requirement is normatively desirable and does not relitigate the debate over its wisdom. For some recent criticisms of the requirement, see, e.g., Epps, Daniel, The Consequences of Error in Criminal Justice , 128 Harv. L. Rev. 1065 (2015); Laudan, Larry, Is It Finally Time to Put “Proof beyond a Reasonable Doubt” out to Pasture? , The Routledge Companion to Philosophy of Law 317 (Marmor, Andrei ed., 2012); Laudan, Larry, The Rules of Trial, Political Morality, and the Costs of Error: Or, Is Proof beyond a Reasonable Doubt Doing More Harm Than Good? , in 1 Oxford Studies in Philosophy of Law 195 (Green, Leslie & Leiter, Brian eds., 2011); Laudan, Larry, The Elementary Epistemic Arithmetic of Criminal Justice , 5 Episteme 282 (2008). For a recent, thorough discussion of the controversy and a defense of the standard, see Walen, Alec, Proof beyond a Reasonable Doubt: A Balanced Retributive Account , 76 La. L. Rev. 355 (2015). Second, it is fair to ask, in this age of vanishing trials ( Galanter, Marc, The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts , 1 J. Empirical Legal Stud. 459–570 (2004)), whether it makes sense to focus one's scholarly efforts on trials in the criminal process. See, e.g., William J. Stuntz, The Collapse of American Criminal Justice (2011); Benjamin Weiser, Trial by Jury, a Hallowed American Right, Is Vanishing, N.Y. Times, Aug. 7, 2016. This article assumes that, given the “archetype”-like status that the beyond a reasonable doubt requirement and the right to trial by jury have in our criminal justice system as fundamental constitutional commitments, it is important for scholars to work out the nature and scope of such commitments, even if the actual number of cases that go to trial is small. For a discussion of legal archetypes, see Waldron, Jeremy, Torture and Positive Law: Jurisprudence for the White House , 105 Colum. L. Rev. 1681, 1723 (2005) (defining “archetype” as “a particular provision in a system of norms which has a significance going beyond its normative content, a significance stemming from the fact that it sums up or makes vivid to us the point, purpose, principle, or policy of a whole area of law”). Moreover, even if it is the case that very few cases go to trial, how a criminal case is expected to be resolved at the end of the process can have an impact on the plea-bargaining process. If, for instance, it is the case that the jury unanimity rule makes convictions more difficult than the supermajority rule, then the bargaining positions of relevant parties during plea bargaining would change depending on which voting rule is adopted. Therefore, the fact that there are very few trials does not mean that trials are irrelevant. For a similar defense of focusing on the trial and the standard of proof despite the rarity of trials, see Walen, id. at 401–402.
10. Feldman, Richard, Epistemological Puzzles about Disagreement , in Epistemology Futures 217 (Herrington, Stephen ed., 2006).
11. Christensen, David, Epistemology of Disagreement: The Good News , 116 Phil. Rev. 187, 216 (2007).
12. The equal-weight view is also called “conciliationism” and “conformism.” See Christensen, David & Lackey, Jennifer, Introduction , in The Epistemology of Disagreement: New Essays , 231, 231 (Christensen, David & Lackey, Jennifer eds., 2013).
13. Elga, Adam, Reflection and Disagreement , 41 Noûs 478, 484 (2007). And then there are those who argue that peer opinions should matter but not to the extent the equal-weight view suggests; see, e.g., Enoch, David, Not Just a Truthometer: Taking Oneself Seriously (But Not Too Seriously) in Cases of Peer Disagreement , 119 Mind 953, 993 (2010) (“[T]hat someone you (justifiably) take to be your peer disagrees with you about p should usually reduce your confidence in p. It is among your relevant evidence regarding p, and in most cases it would be foolish to ignore it. . . . In the face of what seems to be peer disagreement, we should all lower our confidence, though not as much as the Equal Weight View would have us do.”); Kelly, Thomas, Peer Disagreement and Higher-Order Evidence , in Disagreement 111, 138 (Feldman, Richard & Warfield, Ted A. eds., 2010) (“[T]he fact that a peer believes differently can make it rationally incumbent upon you to change what you currently believe. . . . To give no weight to the fact that a peer responds to the evidence differently is in effect to treat it as certain that one's peer is the one who has misjudged the evidence. But it would be unreasonable to be certain of this, even when it is true.”).
14. Elga, supra note 13, at 486.
16. Christensen, supra note 11, at 192.
17. Feldman, supra note 10, at 223–224.
18. Christensen, supra note 11, at 196.
19. Id. at 198.
20. Id. at 205.
21. Id. at 198.
22. Id. at 203.
23. Rosen, Gideon, Nominalism, Naturalism, and Epistemic Relativism , 15 Phil. Persp. 69 (2001), at 71.
24. Kelly, supra note 13, at 111–112.
25. Id. at 112.
26. Jennings v. United States, 350 F.2d 949 (9th Cir. 1965) (“Beyond a reasonable doubt does not mean a mathematical certainty.”); Shapiro, Barbara J., “ To A Moral Certainty”: Theories of Knowledge and Anglo-American Juries 1600–1850 , 38 Hastings L.J. 153, 192 (1986) (“[T]here are two realms of human knowledge. In one it is possible to obtain the absolute certainty of mathematical demonstration, as when we say that the square of the hypotenuse of a right triangle is equal to the sum of the squares of the other two sides. In the other, which is the empirical realm of events, absolute certainty of this kind is not possible.”).
27. See, e.g., Solan, Lawrence M., Refocusing the Burden of Proof in Criminal Cases: Some Doubt about Reasonable Doubt , 78 Tex. L. Rev. 105, 126 (1999); Pardo, Michael S., Group Agency and Legal Proof; or, Why the Jury Is an “It ,” 56 Wm. & Mary L. Rev. 1793, 1827 (2015); Underwood, Barbara D., The Thumb on the Scales of Justice: Burdens of Persuasion in Criminal Cases , 86 Yale L.J. 1299, 1311 (1977).
28. Wayne R. LaFave, Jerold H. Israel, Nancy J. King & Orin S. Kerr, Criminal Procedure §22.1(e) (3d ed. 2014).
29. Id. at §25.2(c).
30. Id. at §22.1(d).
31. This number comes from a simple averaging equation: probability of guilt according to those who seek to vote to convict multiplied by the number of those who seek to convict and probability of guilt according to those who seek to acquit multiplied by the number of those who seek to acquit are added to each other and then divided by the number of jurors ((0.9 x 11 + 0.2)/12). There are some disagreements about whether this is a correct understanding of the equal-weight view. Kelly says, for instance, that if a person arrives at an answer with 90 percent confidence and someone else arrives at the same answer with 80 percent confidence, then they should not split the difference and arrive at 85 percent confidence. He says, “Intuitively, learning that you arrived at the same number should make me more confident of my answer, as opposed to less confident, which would be the outcome of averaging our credences.” Kelly, Thomas, Disagreement and the Burdens of Judgment , in Epistemology of Disagreement: New Essays , 31, 35–36 n.4 (Christensen, David & Lackey, Jennifer eds., 2013). Christensen has a similar discussion. See Christensen, David, Disagreement, Question-Begging, and Epistemic Self-Criticism , 11 Philosophers’ Imprint 1, 3 n.3, 17 (2011). I do not share this intuition. If I am 90 percent confident of some proposition but my friend is only 60 percent confident, then it seems to me that I, upon learning that my friend is not as confident as I am, should be a bit less confident, and the friend should conversely become a bit more confident. There may be other problems with the equal-weight view, but I do not see the intuitive case for rejecting it on this ground.
32. This table assumes that each person must vote to acquit if the average probability of guilt is less than 0.85.
33. Christensen & Lackey, supra note 8, at 2.
34. This article focuses on unanimity and supermajority rules, but they are, of course, not the only possibilities. There are many different ways of structuring these rules. For some other possibilities, see Leib, Ethan J., Supermajoritarianism and the American Jury , 33 Hastings Const. L.Q. 101 (2006).
35. There is no reason to have two different voting rules for the equal-weight view, because after everyone revises his or her view in light of disagreement, everyone would end up with the same answer every time, thus enabling a unanimous verdict.
36. This table assumes that each person must vote to acquit if the average probability of guilt is less than 0.85.
37. This table assumes that each person must vote to acquit if the average probability of guilt is less than 0.9.
38. Johnson, supra note 2, at 400–401 (Marshall, J., dissenting).
39. Id. at 392 (Douglas, J., dissenting).
40. Another decision that this argument vindicates is Burch v. Louisiana, 441 U.S. 139 (1979), which held, despite the Johnson holding which permitted nonunanimous verdicts, that unanimity was required if the size of the jury is six, as opposed to twelve. Burch was decided as a case about the right to trial by jury under the Sixth Amendment, but the equal-weight view suggests that there may also be a reason to endorse the holding as a way of enforcing the beyond a reasonable doubt requirement, given that the weight of each vote in a six-person jury is higher than the weight of each vote in a twelve-person jury.
41. 4 William Blackstone, Commentaries *352; see also Volokh, Alexander, n Guilty Men , 146 U. Pa. L. Rev. 173, 174 (1997).
42. See, e.g., Wilkinson III, Hon. J. Harvie, In Defense of American Criminal Justice , 67 Vand. L. Rev. 1099, 1105 (2014) (“[A] constitutional requirement of jury unanimity is indispensable to reducing the rate of error in criminal cases, thereby raising confidence in the system.”).
43. For a critical discussion of beliefs that appear to advocate whatever policies would minimize wrongful convictions, see, e.g., Laudan, Rules, supra note 9; Laudan, Is It Finally, supra note 9, at 329–331; Walen, supra note 9, at 376–400.
44. Feldman, supra note 10, at 217.
45. Christensen, Epistemology, supra note 11, at 188–189; see also id. at 211 (discussing “evidential equality” and “cognitive parity”).
46. Elga, supra note 13, at 484. For further discussions of the notion of “epistemic peer,” see Kelly, Peer Disagreement, supra note 13, at 112 (“Suppose further that neither of us has any particular reason to think that he or she enjoys some advantage over the other when it comes to assessing considerations of the relevant kind, or that he or she is more or less reliable about the relevant domain.”); Kelly, Thomas, Epistemic Significance of Disagreement , in 1 Oxford Studies in Epistemology 167, 175 (Hawthorne, John & Gendler, Tamar eds., 2005) (“equals with respect to their familiarity with the evidence and arguments which bear on that question” and “equals with respect to general epistemic virtues, such as intelligence, thoughtfulness, and freedom from bias”).
47. See especially Elga, supra note 13, at 499 n.21 (distinguishing between epistemic peers defined as those who share certain epistemic virtues and access to evidence and epistemic peers defined as those who are as likely as one another to be mistaken on a given question).
48. This is not to say that they all have access to “the same” evidence, as there is a complication here as to what exactly counts as evidence. See, e.g., King, Nathan L., Disagreement: What's the Problem? or A Good Peer Is Hard to Find , 85 Phil. & Phenomenological Res. 249, 257 (2012) (raising the possibility that “one's evidence includes one's background beliefs,” in which case, “sameness of evidence requires sameness of background beliefs,” and noting that under this account, “peerhood is extremely rare,” given that “[o]n this picture, epistemic peerhood can be common only if it is common for subjects to have all and only the same relevant background beliefs”).
49. Christensen, Epistemology, supra note 11, at 212; Cf. id. at 188 (“I had cereal for breakfast.”).
50. Cf. id. at 188 (“My child is the best violinist in his school.”).
51. There may be a moral disagreement about whether to convict or acquit in a situation, a possibility I am setting aside in this article.
52. Cf. Christensen, Epistemology, supra note 11, at 199–201; Elga, supra note 13, at 491.
53. Christensen, Epistemology, supra note 11, at 205.
54. Id. at 198.
55. Id. at 203.
56. Kelly, Peer Disagreement, supra note 13; Enoch, supra note 13, at 980–982; Christensen, David, Disagreement as Evidence: The Epistemology of Controversy , 4 Phil. Compass 756, 759 (2009) (“Intuitively, the reason that I resist full conciliation in that case is that I think that something screwy had gone on with my friend.”).
57. Christensen, Epistemology, supra note 11, at 198.
58. Elga, supra note 13, at 483.
59. Christensen, Epistemology, supra note 11, at 198.
60. Id. at 201.
61. Elga, supra note 13, at 491.
62. After the mistrial, the case was tried again, and the jury from the second trial convicted the defendant after a deliberation lasting nine days. See Rick Rojas, Pedro Hernandez Found Guilty of Kidnapping and Killing Etan Patz in 1979, N.Y. Times, Feb. 14, 2017.
63. Adam Sirois, Why I Said Not Guilty: Etan Patz Jury's Lone Holdout Speaks, N.Y. Post, May 10, 2015.
65. Johnson, supra note 2, at at 400–401 (Marshall, J., dissenting).
66. Id. at 362.
67. This table assumes that each person must vote to acquit if the average probability of guilt is less than 0.9.
68. See Walen, supra note 9, at 380 (“If one were willing to go [extremely] far to avoid knowingly putting innocents at risk, it is hard to see the reason not to abolish punishment entirely.”).
69. This table assumes that each person must vote to acquit if the average probability of guilt is less than 0.9.
70. Cf. Enoch, supra note 13, at 994.
71. This table assumes that each person must vote to acquit if the average probability of guilt is less than 0.9.
72. This number is a weighted arithmetic mean: probability of guilt according to each juror (p1 , p2 , p3 . . ., p12 ) is multiplied by the weight of each juror's view (w1 , w2 , w3 . . ., w12 ). We take the sum of the twelve numbers (p1w1 + p2w2 + p3w3 . . .+ p12w12 ) and divide it by the sum of the weights given to each juror's view (w1 + w2 + w3 . . . + w12 ), which gives us the following equation: (p1w1 + p2w2 + p3w3 . . . + p12w12 )/(w1 + w2 + w3 . . . + w12 ).
73. This table assumes that each person must vote to acquit if the average probability of guilt is less than 0.9.
74. This number is a weighted arithmetic mean: probability of guilt according to each juror (p1 , p2 , p3 . . ., p12 ) is multiplied by the weight of each juror's view (w1 , w2 , w3 . . ., w12 ). We take the sum of the twelve numbers (p1w1 + p2w2 + p3w3 . . . + p12w12 ) and divide it by the sum of the weights given to each juror's view (w1 + w2 + w3 . . . + w12 ), which gives us the following equation: (p1w1 + p2w2 + p3w3 . . . + p12w12 )/(w1 + w2 + w3 . . . + w12 ).
75. Tribe, Laurence H., Trial by Mathematics: Precision and Ritual in the Legal Process , 84 Harv. L. Rev. 1329, 1374 (1971). For further discussion, see Laudan, Larry, Is Reasonable Doubt Reasonable?, 9 Legal Theory 295, 310–313 (2003); Walen, supra note 9, at 408–409.
76. See supra note 9.
77. Victor v. Nebraska, 511 U.S. 1, 27 (1994).
78. State v. Vazquez, 987 A.2d 1063, 1070 (App. Ct. 2010).
79. Ex parte Brown, 74 So. 3d 1039, 1053 (Ala. 2011).
80. State v. Billie, 2 A.3d 1034, 1044 n.14 (Conn. App. Ct. 2010).
81. State v. Medina, 685 A.2d 1242, 1251 (N.J. 1996).
82. United States v. Isaac, 134 F.3d 199, 202 (3rd Cir. 1998).
83. Jackson v. Virginia, 443 U.S. 307, 324 (1979).
84. This table assumes that each person must vote to acquit if the average probability of guilt is less than 0.9.
85. Cavazos v. Smith, 132 S. Ct. 2, 3 (2011).
86. Jackson, 443 U.S. at 320 n.13.
87. Id. at 319.
89. Cavazos, supra note 85, at 3.
90. Jackson, 443 U.S. at 334 (Stevens, J., concurring).
91. Jackson, 443 U.S. at 314.
92. For a discussion of such reasons, see Warner, Randall H., All Mixed up about Mixed Questions , 7 J. App. Prac. & Process 101, 104 (2005).
93. Victor v. Nebraska, 511 U.S. 1, 5 (1994) (“[S]o long as the court instructs the jury on the necessity that the defendant's guilt be proved beyond a reasonable doubt, the Constitution does not require that any particular form of words be used in advising the jury of the government's burden of proof.”); cf. Nesson, Charles R., Reasonable Doubt and Permissive Inferences: The Value of Complexity , 92 Harv. L. Rev. 1187, 1196 (1979) (discussing the utility of an imprecise standard of reasonable doubt and the role the imprecise standard plays in the relationship between jury members and the observing public).
94. Walen, supra note 9, at 410.
95. This table assumes that each person must vote to acquit if the average probability of guilt is less than 0.9.
96. This table assumes that each person must vote to acquit if the average probability of guilt is less than 0.9.
97. N.Y. Penal Law §125.25(4) (McKinney 2006).
98. Not all would agree that “causation” is a moral concept. I have in mind not cause-in-fact, but proximate cause, which implicates the question of moral blameworthiness. See, e.g., Moore, Michael, Causation in the Criminal Law , in The Oxford Handbook of Philosophy of Criminal Law 168, 180 (Deigh, John & Dolinko, David eds., 2011) (“[T]he dominant purpose of the criminal law's concept of causation is to grade punishment proportionately to moral blameworthiness. . . . [T]he legal concept of causation will serve its function in criminal law only if the concept names some factual state of affairs that determines degrees of moral blameworthiness.”).
99. See, e.g., Paul Roberts & Adrian Zuckerman, Criminal Evidence 134–135 (2d ed. 2010); Cahill, Michael T., Punishment Decisions at Conviction: Recognizing the Jury as Fault-Finder , 2005 U. Chi. Legal F. 91, 100–103 (2005).
100. See, e.g., State v. Chacon, 03-0446, p. 5 (La. App. 5 Cir. 10/28/03); 860 So. 2d 151, 153 (“Mistreatment is equated with ‘abuse’ and has a commonly understood meaning.”); People v. Biegajski, 332 N.W.2d 413, 418 (Mich. Ct. App. 1982) (pointing out that the word “torture” has “a common, ordinary meaning”); State v. VanVlack, 765 P.2d 349, 351 (Wash. Ct. App. 1988) (“The term ‘consent’ does not have a technical meaning different from the commonly understood meaning. . . . Consequently the trial court was not required to instruct the jury on the definition of consent.”); see also State v. Blount, 770 P.2d 852, 855 (Kan. Ct. App. 1989) (“A person of common intelligence could readily understand what constitutes a lack of consent and . . . does not have to guess at the meaning of ‘lack of consent’ to determine whether one has acted in violation of the statute.”).
101. See generally Warner, supra note 92 (providing an overview of different types of mixed questions of law and fact).
102. Bernard Williams, Ethics and the Limits of Philosophy (1985), at 140–141. I am not the first to connect the idea of “thick concepts” to legal concepts. See, e.g., Feldman, Heidi Li, Objectivity in Legal Judgment , 92 Mich. L. Rev. 1187 (1994); Enoch, David & Toh, Kevin, Legal as a Thick Concept , in Philosophical Foundations of the Nature of Law 257 (Waluchow, Wil & Sciaraffa, Stefan eds., 2013); Duff, R.A., Rule-Violations and Wrongdoing , in Criminal Law Theory: Doctrines of the General Part 47 (Shute, Stephen & Simester, A.P. eds., 2002).
103. Williams, supra note 102, at 140.
105. Id. at 141.
106. Dancy, Jonathan, In Defense of Thick Concepts , 20 Midwest Stud. Phil. 263, 263 (1995).
107. Gibbard, Allan, Thick Concepts and Warrant for Feelings , 66 Proc. Aristotelian Soc'y (Supp. Vols.) 267, 268–269 (1992).
108. See, e.g., Scanlon, T.M., Aims and Authority of Moral Theory , 12 Oxford J. Legal Stud. 1, 19 (1992) (“We can specify . . . in physical and psychological terms what counts as a promise, or as an act of treachery or courage. By contrast, two instances of a thin ethical concept such as ‘obligation’ may have virtually no empirical properties in common; they count as obligations only in virtue of certain abstract normative considerations.”).
109. Scheffler, Samuel, Morality through Thick and Thin: A Critical Notice of Ethics and the Limits of Philosophy, 96 Phil. Rev. 411, 418 (1987) (reviewing Williams, supra note 102) (“[T]he charge that [contemporary ethical] theories neglect the thick in favor of the thin is simply too crude and coarse-grained . . . to be fully credible.”).
110. Id. at 417.
111. Scanlon, T.M., Thickness and Theory , 100 J. Phil. 275, 276 (2003).
112. Gibbard, supra note 107, at 275–277.
113. Dancy, supra note 106, at 263.
114. Scanlon, supra note 111, at 276.
115. Enoch & Toh, supra note 102, at 260.
116. Some may see “consent” as a factual question, and, indeed, if the legal system defines it precisely enough, it could be a mostly factual question. But in order to do so, the legal system would have to define what precisely counts as nonconsent and what to do about situation of mistakes about nonconsent. Formulas like “Yes means yes” leave unspecified answers to questions such as whether either explicit or implicit communication of consent counts, how to tell whether the consent is voluntary (especially in situations of unequal bargaining power), and whether ordinary or reasonable mistakes about nonconsent can exculpate and how one might go about defining “reasonable” mistakes. These issues call for normative judgments, and the legal system rarely has all the questions answered in such a specific manner that there is little room for jurors to exercise their capacities for moral judgments to give content to the idea of consent. For a good overview of the relevant issues, see, e.g., Baron, Marcia, Gender Issues in the Criminal Law , in The Oxford Handbook of Philosophy of Criminal Law 335, 375–381 (Deigh, John & Dolinko, David eds., 2011).
117. Commonwealth v. Berkowitz, 641 A.2d 1161 (Pa. 1994).
118. Commonwealth v. Berkowitz, 609 A.2d 1338, 1341 (Pa. Super. Ct. 1992), order aff'd in part, vacated in part, 537 Pa. 143, 641 A.2d 1161 (Pa. 1994).
119. Kahan, Dan M., Culture, Cognition, and Consent: Who Perceives What and Why, in Acquaintance-Rape Cases , 158 U. Pa. L. Rev. 729, 773–806 (2010). Kahan is not the only legal scholar who has studied this case. As Samuel Buell notes, Berkowitz is a case that “most criminal law teachers and students who have covered this subject in the classroom will recognize as canonical for discussing the acquaintance rape case,” and is “a valuable teaching tool.” Buell, Samuel W., Culpability and Modern Crime , 103 Geo. L.J. 547, 572–573 (2015); see also Kahan, id. at 745 (describing Berkowitz as a “textbook treatment (literally) of standard [rape] doctrine” and listing four criminal-law textbooks and casebooks as examples). Kahan's study has also had some influence on legal scholarship. See, e.g., Buell, id. at 574 (crediting Kahan for “demonstrat[ing] that views on the normative question” about “what norms are and should be about consent to sex, particularly for two young people who know each other socially at a school” “vary a great deal”); Capers, I. Bennett, Real Women, Real Rape , 60 UCLA L. Rev. 826 (2013) (citing Kahan's study for its “discussion of how the cultural background and assumptions of jurors have a stronger effect than legal definitions in rape cases”); Kaplan, Margo, Rape beyond Crime , 66 Duke L.J. 1045, 1069 (2017) (citing what the author calls “Kahan's seminal study” as demonstrating that “social norms about male persistence and female resistance clearly influence juror decisions”).
120. Kahan, supra note 119, at 765.
121. Id. at 771.
122. Id. at 810–812.
123. Id. at 774.
124. Id. at 775.
125. Id. at 774.
126. For a similar reading of the case, see Buell, supra note 119, at 574 (describing Berkowitz as “a contest over what norms are and should be about consent to sex”) (emphasis added).
127. Christensen, Epistemology, supra note 11, at 198.
128. Elga, supra note 13, at 483.
129. Id. at 491.
130. Id. at 490.
131. Christensen, Epistemology, supra note 11, at 216.
132. Lackey, Jennifer, A Justificationist View of Disagreement's Epistemic Significance , in Social Epistemology 298, 323 (Haddock, Adrian et al., eds., 2010); see also Lackey, Jennifer, What Should We Do When We Disagree? , in 3 Oxford Studies in Epistemology (Gendler, Tamar Szabo & Hawthorne, John eds., 2010).
133. Elga, supra note 13, at 493.
134. Christensen, Epistemology, supra note 11, at 198.
135. Elga, supra note 13, at 492. For similar arguments, see Christensen, Disagreement, supra note 31, at 16; Vavova, Katia, Moral Disagreement and Moral Skepticism , 28 Phil. Persp. 302, 305 (2014).
136. Kahan, supra note 119, at 729.
137. Id. at 794.
138. Id. at 770.
139. Id. at 757.
140. See, e.g., Simpson, Robert Mark, Epistemic Peerhood and the Epistemology of Disagreement , 164 Phil. Stud. 561 (2013); Kornblith, Hilary, Belief in the Face of Controversy , in Disagreement (Feldman, Richard & Warfield, Ted A. eds., 2010); McGrath, Sarah, Moral Disagreement and Moral Expertise , in 3 Oxford Studies in Metaethics (Shafter-Landau, Russ ed., 2010).
141. McGrath, supra note 140, at 105; see also Kornblith, supra note 140, at 29–32.
142. Cf. Simpson, supra note 140, at 571.
143. Kahan, supra note 119, at 784.
144. Stephen J. Schulhofer, Unwanted Sex: The Culture of Intimidation and the Failure of Law (1998), at 65.
145. Kimberly Kessler Ferzan, Consent, Culpability, and the Law of Rape, 13 Ohio St. J. Crim. L. 397, 421 (2016).
146. Rachel E. Barkow, Recharging the Jury: The Criminal Jury's Constitutional Role in an Era of Mandatory Sentencing, 152 U. Pa. L. Rev. 33, 59 (2003); see also Valerie P. Hans & Neil Vidmar, Judging the Jury (1986), at 155; Brown, Darryl K., Plain Meaning, Practical Reason, and Culpability: Toward a Theory of Jury Interpretation of Criminal Statutes , 96 Mich. L. Rev. 1199, 1209 (1998) (“[T]he jury's task is . . . to make individualized moral judgments through application of indeterminate rules with terms that must be given normative content from broadly held social norms.”); Marder, Nancy S., The Myth of the Nullifying Jury , 93 Nw. U. L. Rev. 877, 904 (1999) (“There may be cases where the law is unclear, the facts are uncertain, or the standards are ill-defined. These grey areas give the jury room to bring their sense of community norms into the process of applying the law to the facts.”).
147. See, e.g., Barkow, supra note 146, at 69; Clark, Sherman J., The Courage of Our Convictions , 97 Mich. L. Rev. 2381, 2426 (1999); Hoffman, Morris B., The Case for Jury Sentencing , 52 Duke L.J. 951, 998–999 (2003) (“[V]arious members of the Court have on occasion written about how . . . the death penalty can only be imposed by ordinary citizens with a broader imprimatur of community moral judgment than possessed by single judges.”); Wright, Ronald F., Rules for Sentencing Revolutions , 108 Yale L.J. 1355, 1375–1376 (1999) (reviewing Kate Stith & José A. Cabranes, Fear of Judging: Sentencing Guidelines in the Federal Courts (1998)) (“One of the primary functions of a jury is to express the moral sentiment of the community in applying the law.”); Lanni, Adriaan, Note, Jury Sentencing in Noncapital Cases: An Idea Whose Time Has Come (Again)? , 108 Yale L.J. 1775, 1775 (1999) (“The one task that juries indisputably perform better than judges is to reflect the ‘conscience of the community’ and to express public outrage at the transgression of community norms.”).
148. T.M. Scanlon, Fear of Relativism, in Virtues and Reasons: Philippa Foot and Moral Theory 223 (Rosalind Hursthouse et al. eds., 1995).
149. Elga, supra note 13, at 493.
150. Kahan, supra note 119.
151. Pettit, Philip, When to Defer to Majority Testimony—and When Not , 66 Analysis 179, 181 (2006).
152. See Martha C. Nussbaum, Love's Knowledge: Essays on Philosophy and Literature (1990), at 66-75; see also Hills, Alison, Moral Testimony and Moral Epistemology , 120 Ethics 94, 108–113 (2009) (describing attributes of virtuous people, including sensitivity to morality).
153. But see Williams, supra note 102, at 148 (“in ethics, reflection can destroy knowledge”). This position by Williams is controversial. For a discussion, see Moore, A.W., Williams on Ethics, Knowledge, and Reflection , 78 Philosophy 337 (2003).
154. Pardo, Michael S., Group Agency and Legal Proof; or, Why the Jury Is an “It.” 56 Wm. & Mary L. Rev. 1793, 1858 (2015).
155. Miranda Fricker, Epistemic Injustice: Power and the Ethics of Knowing (2007).
156. Kahan, supra note 119, at 732–733.
157. Id. at 805.
158. Kahan, Dan, Why We Are Poles Apart on Climate Change , 488 Nature 255 (2012); Kahan, Dan, A Risky Science Communication Environment for Vaccines , 342 Science 53 (2013); Kahan, Dan M. & Braman, Donald, More Statistics, Less Persuasion: A Cultural Theory of Gun-Risk Perceptions , 151 U. Pa. L. Rev. 1291 (2003).
159. Kahan, supra note 120, at 729.
160. Kahan, Dan M. & Braman, Donald, The Self-Defensive Cognition of Self-Defense , 45 Am. Crim. L. Rev. 1, 27 (2008).
161. Kahan, Dan M. et al., Whose Eyes Are You Going to Believe? Scott v. Harris and the Perils of Cognitive Illiberalism , 122 Harv. L. Rev. 837, 857 (2009).
162. Id. at 858.
163. Id. at 858.
164. Id. at 858.
165. Fricker, supra note 155, at 27.
166. Id. at 27–28.
167. Id. at 27–28.
168. Id. at 91.
169. I have, however, begun to address them elsewhere. See Lee, Youngjae, Reasonable Doubt and Moral Elements , 105 J. Crim. L. & Criminology 1 (2016).
* For helpful comments on earlier drafts, I thank Vincent Chiao, Antje du Bois-Pedain, David Enoch, Sari Kisilevsky, Adam Kolber, Tom Lee, Ethan Leib, Elinor Mason, Manolis Melissaris, Eric Miller, Federico Picinali, Aaron Saiger, Robert Simpson, Katia Vavova, Ben Zipursky, and participants at the Criminal Law and Criminal Justice Forum at the London School of Economics, the conference on Deep Disagreements: Philosophical and Legal Perspectives at Humboldt University, Berlin, and Fordham Law School Faculty Workshop. I would also like to thank Alec Walen and an anonymous referee for extremely valuable comments on the penultimate draft.
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