Aaron Hughes

Jurisprudence
Professor Rosenfeld

Modern and Postmodern Perspectives on “Reasonableness” in Criminal Law

I. Introduction
Criminal statutes are inundated with references to reasonableness.1 New York entitles a
person to use deadly force if he “reasonably believes that such other person is using or about to
use deadly physical force,” or if he “reasonably believes that such other person is committing or
attempting to commit a kidnapping, forcible rape, forcible criminal sexual act or robbery.”2 A
police officer must be able to articulate reasonable suspicion to stop and detain a suspect.3 And
the paramount evidentiary standard of the legal system is that a defendant can only be
convicted if the prosecution presents evidence convincing the jury4 of the person’s guilt beyond
all reasonable doubt.
“Reasonableness” is a challenging question, and plainly in the eye of the beholder. Yet
courts have held the standard to be an objective one.5 This conflict between the supposedly
objective nature of reasonableness, and its obviously subjective nature, can cause chaos.
Jonathan C. Shaw and Mango Watts were the two identified of three robbers who were involved
in the robbery of a restaurant in Lyons, California.6 During the course of the robbery one man
was in possession of a gun.7 In 1995 Shaw was found guilty of being the robber with the gun;
then, in 1998, Watts was likewise found guilty of being the armed robber.8 Each man appealed
his conviction through the California criminal appellate system.9 Watts’ appeal, predicated on
the physical impossibility of both men being guilty, was rejected:

1
Of course, references to reasonableness are ubiquitous in civil law as well, but that is beyond the scope of this
paper. Additionally, for consistency this paper will predominately center on the concept of reasonable doubt rather
than situations such as reasonable uses of force, as statutes on point vary far more.
2
N.Y. Penal Law § 35.15. There are further circumstances (all predicated on reasonableness) and exceptions, here
simplified.
3
3 Terry v. Ohio, 392 U.S. 1 (1968).
4
For the purposes of this paper, I will refer to finders of fact as “juries,” neglecting bench trials.
5
See State v. Conner, 241 N.W.2d 447, 462 (Iowa 1976) ("We believe a juror's reasonable doubt must conform to an
objective standard.") (citing State v. McGranahan, 206 N.W.2d 88, 91-92 (Iowa 1973)).
6
Facts taken from People v. Watts, 76 Cal. App. 4th 1250, 91 Cal. Rptr. 2d 1 (1999)
7
Id.
8
Shaw v. Terhune, 380 F.3d 473 (9th Cir. 2004).
9
Shaw likewise filed a federal habeas – see id. I am unable to find a record of Watts doing the same.
 Although it is true that only one offender could have committed the specific acts against
Bishop, the nature of trial proceedings, the nature of the crimes and the nature of the evidence
of those crimes, make it perfectly possible that appellant was the individual who committed the
crimes, notwithstanding that some other jury, in some other prosecution, concluded that they
were committed by Shaw. . . Here, petitioner received a fair trial at which the Government bore
the burden of proving beyond reasonable doubt that [the charged offenses had occurred]. He
was entitled to no less and to no more."10

That there could be reasonable doubt for each man that he was the gunman, or reasonable
doubt that one was the gunman but no reasonable doubt that the other was would be a
coherent result. But for each jury to unanimously conclude that there is no reasonable doubt
anyone but the defendant each convicted was the gunman ought not be possible. And yet, in
addressing this, the Watts court only noted that the prosecutor’s behavior was “troubling,”11
while the jury “had every reason to view that evidence as highly credible.”12 The court evidently
did not find the conflicting jury verdicts troubling.
The case of Shaw and Watts highlights the ineffability of attempting to determine what
beliefs are “reasonable,” but more so highlights a disinterest in exploration of this issue – most
likely due to the impossibility of attempting to establish a justiciable standard. It is for this
reason that opinions in failed appeals are replete with references to the phrase “a reasonable
jury could conclude” that the defendant was guilty when deciding that evidence is sufficient to
convict, rather than asserting that the jury correctly concluded no reasonable doubt existed.13
Deference to juries is an implicit concession that the “objective” standard for “reasonable
doubt”14 is anything but – that deference is a necessity not just for the efficiency of not having
the appellate court be forced to retry the case themselves, but because differences in opinion
could arise between the appellate court and the jury, and the jury’s is paramount.
Modernism and postmodernism can likewise be difficult to define, though perhaps less
difficult to differentiate.15 According to Feldman:
Modernism . . . entails a commitment to a subject-object metaphysics that traces back to
Descartes: the subject or self is separate from an objective world. In epistemology, then,
modernists are foundationalists: knowledge requires the subject to somehow access a firm
foundation or Archimedean point, typically the objective world. Modernists also commonly
subscribe to a correspondence theory of truth and a referential theory of language. For instance,
Searle maintains that “there is a reality that exists totally independently of us, an observer-

10
Watts, supra note 6 at 1260, 1264.
11
Id. at 1260.
12
Id. at 1259.
13
See, e.g., United States v. Alindor, Case No.: 8:17-cr-270-T-33MAP (M.D. Fla. Apr. 9, 2018).
14
Conner, supra note 5.
15
Dale Jamieson, The Poverty of Postmodernist Theory, 62 U. Colo. L. Rev. 577 (1991) (The first point to be noted is
that postmodernism obviously is to be understood in relation to modernism. Characterizing an intellectual position
relationally in this way defers the problem of definition. Since it's not very clear what modernism is,3 it's not very
clear what *578 postmodernism is.) (internal citations omitted).
 independent way that things are, and our statements about that reality are true or false
depending on whether they accurately represent how things are.” 16

Modernism entails a respect for arguments as they are made, for counter-argument, for
synthesis, and the ability to engage with and learn about the world without it being wholly
beyond perception.
Postmodernism contrasts with this, deconstructing arguments more often than
answering them, subjecting the ideas they carry to the belief that language itself not only limits
but creates ideology. As Feldman writes:
[P]ostmodernism rejects subject-object metaphysics, epistemological foundationalism, and
referential theories of language. Postmodernists tend to emphasize the operation and orientation
of power, particularly in language. Hans-Georg Gadamer, for example, writes that “[t]he speaking
of a language is a totality, a structure within which we have our place -- a place which we have
not chosen.17

It would be ironic if a theory predicated on the attacking of foundationalism and language were
itself well-defined. As one theorist wrote, “The denial of its own definition thereby creates a
paradox: postmodernism's denial of the possibility of its own definition while simultaneously
defining itself as such.”18 (internal citations omitted).
The limits of postmodernism in the actual practice of law are apparent by its own
inability to surrender to the necessity of employing language.19 In the context of discussing laws
referencing “reasonableness,” a postmodernist may have to sigh, and surrender to the
inevitability of employing such terms if any legal system is to be semi-functional. This does not
limit the ability to reflect on its application, however, and acknowledge.

II. Common Law Crimes, Vagueness, and Jury Deference as a System of Reasonableness
The Supreme Court of the United States has repeatedly explained that common law consists
of “those principles, usages, and rules of action applicable to the government and security of
persons and property, which do not rest for their authority upon any express and positive

16
Stephen M. Feldman, Can Law Be A Source of Insight for Other Academic Disciplines?, 8 Wash. U.
Jurisprudence Rev. 151, 155 (2016).
17
Id.
18
Adam Todd, Neither Dead Nor Dangerous: Postmodernism and the Teaching of Legal Writing, 58 Baylor L. Rev.
893 (2006)
19
The word “postmodern” has been used in only two Supreme Court cases, and both times as an insult. First was in
PGA Tour, Inc. v. Martin, 532 U.S. 661, 121 S. Ct. 1879, 149 L. Ed. 2d 904 (2001), in which Justice Scalia’s summation
of all different versions of golf culminates with the question of “What is golf?” This is in turn addressed as a
“postmodern question” in the majority’s footnote 51. In revenge, the term returns in Justice Alito’s dissent in
Obergefell, joined by justices Scalia and Thomas, questioning the majority’s definition of “marriage.” Obergefell v.
Hodges, 576 U.S. 644, 135 S. Ct. 2584, 192 L. Ed. 2d 609 (2015).
declaration of the will of the legislature.”20 The legal system of the original thirteen colonies was
imported from England, where criminal law was rooted in common law – judges, not
legislatures, invented and developed the contours of criminal law. As the colonies became
states and as those states developed more sophisticated legal systems, the common criminal
law was gradually supplanted by statutory criminal law, particularly over the nineteenth
century.21
While some colonies-cum-states had begun supplanting common criminal law with
statutory law by the time of the founding of the United States,22 it was only in 1812 that the
Supreme Court fully repudiated federal common law crimes:
Certain implied powers must necessarily result to our courts of justice from the nature
of their institution. But jurisdiction of crimes against the state is not among those powers. To fine
for contempt -- imprison for contumacy -- enforce the observance of order, &c., are powers
which cannot be dispensed with in a court, because they are necessary to the exercise of all
others, and so far our courts no doubt possess powers not immediately derived from statute; but
all exercise of criminal jurisdiction in common law cases we are of opinion is not within their
implied powers.23

While the focus in the 1812 case of Hudson and Goodwin was on the separation of powers,
it nonetheless had the effect of demanding crimes be defined by statutes, with all of the
ensuant supposedly clear definitions and predictability. In the case of Rogers v. Tennessee, a
dissenting Justice Scalia decried the Tennessee Supreme Court’s decision to abrogate the year-
and-a-day rule that requires victims of violent attacks to die within a year and a day for a
murder prosecution to be permissible. More specifically, he decried the application of this
change without prior warning, instead simultaneously changing it and upholding a murder
conviction for the first defendant subject to the new rule:
The Tennessee Supreme Court made no pretense that the year-and-a-day rule was
“bad” law from the outset; rather, it asserted, the need for the rule, as a means of assuring
causality of the death, had disappeared with time. Blackstone–and the Framers who were
formed by Blackstone–would clearly have regarded that change in law as a matter for the
legislature, beyond the power of the court. It may well be that some common-law decisions of
the era in fact changed the law while purporting not to. But that is beside the point. What is
important here is that it was an undoubted point of principle, at the time the Due Process Clause
was adopted, that courts could not “change” the law. That explains why the Constitution
restricted only the legislature from enacting ex post facto laws. Under accepted norms of judicial
process, an ex post facto law (in the sense of a judicial holding, not that a prior decision was

20
Herbert Pope, The English Common Law in the United States, 24 Harv. L. Rev. 6 (1910) (citing W. Union Tel. Co. v.
Call Pub. Co., 181 U.S. 92, 21 S. Ct. 561, 45 L. Ed. 765 (1901); State of Kan. v. State of Colo., 206 U.S. 46, 27 S. Ct.
655, 51 L. Ed. 956 (1907)).
21
§ 2.1(c) Common law crimes in the United States, 1 Subst. Crim. L. § 2.1(c) (3d ed.)
22
Id.
23
United States v. Hudson and Goodwin, 11 U.S. 32, 34 (1812). Perhaps notably, this was before the federal
government’s criminal jurisdiction had ballooned to its current size. Imagining that the federal criminal code had
not been enacted, and yet the role of the federal government in prosecuting crimes had still so ballooned, it is
difficult to imagine that the Court would so lightly abandon federal common law crimes.
 erroneous, but that the prior valid law is hereby retroactively changed) was simply not an option
for the courts.24

The legislature, Scalia notes, could not accomplish what the majority of the Court approved, as
the legislature is bound to enact its criminal laws prior to their enforcement. Likewise,
discussing not changes in criminal common law, but rather its existence, a common refrain is
that statutes far more aptly provide prior notice than common law:
By contrast with judicial pronouncements of crimes, criminal statutes are, at least theoretically,
widely available to the populace and may be read by people deciding whether to engage in
various actions. Justice Jackson captures this point in his Screws v. United States dissent, where
he refers to “the shifting and indeterminate determinations of courts,” as distinguished from the
“delineation by Congress of what is made criminal.”25

This notion plays into modern notions that fair prosecutions can only take place with prior
notice, that restrictions on prosecution serve to protect the population from government
overreach, in particular ensuring that governments cannot “unleash all their might against . . .
the unpopular and controversial”26 by means of arbitrary prosecutions.
Not all legal scholars agree with this interpretation of the demise of common law. To
Hessick, the vague nature of many criminal statutes, necessitating judicial interpretation,
preserves a substantial role for what amounts to common law:
When legislatures fail to define statutory terms that do not have an established
common law meaning, then they are not simply incorporating the historical common law
meaning; instead they are delegating the meaning of that term to the judiciary. Put differently,
the legislature is, to some extent, delegating to judges the task of deciding what conduct should
be legal and what conduct should be illegal. And it is inevitable that, in making that decision, the
judges’ decision will result in a type of common law.27

Indeed, the unpredictability of interpreting statutes, the vagueness that grants judges what
amounts to common law powers, is not restricted to the judiciary. While vague statutes can
lead to deference to the judiciary, they can lead to at least as much deference to juries, as
“[qualitative] standards essentially fail to give any guidance about how they will be applied,
leaving people uncertain whether their conduct will be deemed unreasonable by judges or
juries.”28
These symptoms are particularly strongly at play in so-called “credibility contests.” A
credibility contest is a trial in which the central issue for the jury is the believability of direct
witnesses telling different stories. The following is typical of an appellate description of a

24
532 U.S. 451, 477 (2001) (Scalia, J., dissenting).
25
Ben Rosenberg, The Growth of Federal Criminal Common Law, 29 Am. J. Crim. L. 193, 197 (2002) (citing Screws v.
United States, 325 U.S. 91, 152 (1945) (Jackson, J., dissenting).
26
Gamble v. United States, 139 S. Ct. 1960, 2009 (2019) (Gorsuch, J., dissenting). See also Stewart Jay, Origins of
Federal Common Law: Part One, 133 U. Pa. L. Rev. 1003 (1985) (describing prosecutions in the early United States
which centered on political rivalries).
27
Carissa Byrne Hessick, The Myth of Common Law Crimes, 105 Va. L. Rev. 965, 988 (2019) (internal citations
omitted).
28
Id. at 991, citing Carissa Byrne Hessick, Vagueness Principles, 48 Ariz. St. L.J. 1137, 1146 (2016).
credibility contest: “Here, Catina cried foul and Bruce denied all. The jury resolved this
paradigmatic credibility contest by determining that Catina was more believable. Except in the
most exceptional of circumstances, Jackson does not permit us to revisit such credibility
determinations.”29 The current judicial model as to estimating whether there exists “reasonable
doubt” is to embrace the decision of the jury not only out of a deTocqueville-esque respect for
the jury system, but an impossibility of defining any alternative.

III. Deconstruction, the Challenge of “Reasonableness,” and the Current Adversarial

System
Derrida asserts “the unrepresentable [Justice] exceeds the determinate [droit] cannot
and should not serve as an alibi for staying out of juridico-political battles.”30 Deconstruction is
a refining tool, never assumed to reach an endpoint.31
Here there seems to be a challenge, as it is improbable that a statute could be improved
upon ad infinitum without becoming lengthier ad infinitum. Only so many improvements to a
statute of a certain length could conceivably improve it. The New York jury instructions
answering the question “What does our law mean when it requires proof of guilt ’beyond a
reasonable doubt?’” is 384 words long.32 Perhaps it could be improved upon: it states
“Whatever your verdict may be, it must not rest upon baseless speculations.”33 Yet, fairly
drawing inferences and considering whether to believe or disbelieve witnesses doubtlessly
requires some degree of considering different hypotheses, not all of which there may be direct
evidence for.34 Perhaps “baseless” should be replaced with “unreasonable,” or “implausible.”
Surely there is a limit to the number of changes that can be made to improve the instructions
before we begin to chase our own tails – or chase nothing.
More specifically, deconstruction invites us to question what ought to constitute
“reasonable” itself within this context, but no list of what doubts might be reasonable could

29
De-Luis-Conti v. Evans, No. C 05-2245 SBA (PR), 2008 WL 3166958 (N.D. Cal. Aug. 5, 2008), aff'd, 510 F. App'x 680
(9th Cir. 2013) (citing Jackson V. Virginia, 443 U.S. at 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See also Schlup v.
Delo, 513 U.S. 298, 115 S. Ct. 851, 130 L. Ed. 2d 808 (1995) (“First, under Jackson, the assessment of the credibility
of witnesses is generally beyond the scope of review.”).
30
Jacques Derrida, Force of Law: The Mystical Foundation of Authority, 11 Cardozo L. Rev., 919, 945 (1990).
31
Id. at 971.
32
PRESUMPTION OF INNOCENCE / BURDEN OF PROOF (IN CASES WITHOUT AN AFFIRMATIVE DEFENSE) / PROOF
BEYOND A REASONABLE DOUBT, CJI2D(NY) GA 81 (see subheading “What does our law mean when it requires
proof of guilt ’beyond a reasonable doubt?’”).
33
Id.
34
Consider, for instance, the case where a probationer might be pressured to testify against a defendant under
threat from his probation officer, but no direct evidence of the threat exists. See Davis v. Alaska, 415 U.S. 308, 316
(1974) (concerning potential ulterior motives for a juvenile parolee to testify against the defendant: “We have
recognized that the exposure of a witness' motivation in testifying is a proper and important function of the
constitutionally protected right of cross-examination.”).
conceivably be made. As Balkin suggests, “[t]he question is not whether deconstruction is
justice, but what kind of deconstruction could assist us in the pursuit of the just.” 35
The challenge with speaking of “reasonable doubt” in terms of deconstruction is that
deconstruction lends itself to determining just laws and ideal forms of statutory construction. It
would make little sense to refer to deconstruction by juries, who do not hear case after case. As
Posner writes:
In default of cogent theory, judges performing their legislative role [as Posner describes
choosing between different interpretive theories] should be guided primarily by their prediction
of the consequences of deciding a case one way or another – consequences for the parties to the
case, for persons similarly situated, and for the system as a whole. 36

Yet the effects of what constitutes “reasonable” as determined by a jury are more
elusive: they bind only the parties between them, but may have tangential (and yet, for
practical purposes, wholly unknowable) effects on more than just the parties before them –
conviction rates at trial may, for instance, influence the tendency of defendants to plea
bargain.37 Additionally, this would run contrary to jury instructions, which insists jurors focus on
the case and evidence before them.38
The inability of postmodernism to grapple with the notion of a claim being true has led
some postmodernists to consider the abandonment of the adversarial system, both within the
civil and criminal legal systems:39
If late twentieth century learning has taught us anything, it is that truth is illusive,
partial, interpretable, dependent on the characteristics of the knowers as well as the known, and,
most importantly, complex. In short, there may be more than just two sides to every story. The
binary nature of the adversary system and its particular methods and tactics often may thwart
some of the essential goals of any legal system.40

A plain reading of a postmodernist perspective on the notion of “reasonable doubt” may

be that little else exists. However, Menkel-Meadow’s critique of the legal system reads as
conservative when compared to the amorphous prose of Derrida. Menkel Meadows contends:
Binary, oppositional presentations of facts in dispute are not the best way for us to learn
the truth; polarized debate distorts the truth, leaves out important information, simplifies
complexity, and obfuscates rather than clarifies. More significantly, some matters-mostly civil, but
occasionally even criminal, cases-are not susceptible to a binary (i.e., right/wrong, win/lose)
conclusion or solution. The inability to reach a binary resolution of these disputes may result
because in some cases we cannot determine the facts with any degree of accuracy. In other cases

35
Jack M. Balkin, Deconstruction's Legal Career, 27 Cardozo L. Rev. 719, 739 (2005).
36
Richard A. Posner, The Rise and Fall of Judicial Self-Restraint, 100 Cal. L. Rev. 519, 540-541 (2012).
37
See Shawn D. Bushway, Defendant Decision-Making and Plea Bargains, in A System of Pleas, 24—35 (Vanessa E.
Edkins & Allison D. Redlich ed., 2019).
38
See the New York jury instructions supra note 26: “you should be guided solely by a full and fair evaluation of the
evidence.”
39
Carrie Menkel-Meadow, The Trouble with the Adversary System in a Postmodern, Multicultural World, 38 Wm. &
Mary L. Rev. 5 (1996), https://scholarship.law.wm.edu/wmlr/vol38/iss1/3
40
Id.
 the law may bestow conflicting, though legitimate, legal rights giving some entitlements to both,
or all, parties.41 (internal citations omitted).

Of note are the repeated references to the truth and the notion that truth is findable,
something that would be contrary to the deconstructive process.42 The answer may lie in the
penultimate sentence: “The inability to reach a binary resolution of these disputes may result
because in some cases we cannot determine the facts with any degree of accuracy.”43 The legal
system ultimately must reach conclusions. Litigation cannot be an endless process of dialectics
and introspection. There are two possible perspectives on this: the first is that postmodernism
may reach an end point in analysis when it has no other choice but to come to a conclusion. The
second is that the necessity to come to a conclusion, to establish rules and adjudicate cases, is
wholly destructive to the postmodern mission, to the point that its advocates cease to become
postmodernists when the need arises.
Considering the actual outcome of adjudications, a challenge to postmodernists with
regard to forming alternatives to the current legal regime is the common description of a trial as
a “search for the truth,” which the author here repeats several times.44 A civil trial, in which the
burden of proof is preponderance of the evidence, is arguably a search for the truth by a neutral
third party after each side has done their investigations and gathered evidence. A criminal trial’s
burden of proof being beyond all reasonable doubt plainly indicates that it is not a search for
the truth, the jury are not intended to convict every time the defendant is guilty; rather, the
high burden of proof invests added value in acquitting the innocent, at the cost of some guilty
escaping conviction as well.45 Both whether this is a correct system – one that does not
necessarily search for the truth – and whether or not it could or should be, merit their own
analyses, but are beyond the immediate question of the different approaches to considering
reasonableness.
Notably, when Menkel-Meadow suggests alternatives to the current adversarial system,
they too seem to be conservative and mundane suggestions dressed in the language of
postmodernism. The most radical suggestion Menkel-Meadow considers is assigning one male
judge and one female judge on each case heard, in recognition of gender-based differences
found in judges’ decision making.46 Otherwise, Menkel-Meadow’s central recommendation is
for multi-party mediation, which she suggests after a description of conflict resolution in other
cultures.47 In fact, her praise for non-carceral systems that “attempt[] to create a guilt-imposing

41
Id. at 6.
42
So contrary to it that I feel compelled to note that the author, Carrie Menkel-Meadow, is referred to as a
postmodernist by her allies and detractors alike. See John S. Dzienkowski, Lawyering in A Hybrid Adversary System,
38 Wm. & Mary L. Rev. 45 (1996); Monroe H. Freedman, The Trouble with Postmodern Zeal, 38 Wm. & Mary L. Rev.
63 (1996), https://scholarship.law.wm.edu/wmlr/vol38/iss1/5.
43
Id.
44
Id.
45
Blackstone’s ratio will be discussed under the section on legal pragmatism. The correctness of this proposition
will be briefly commented on as well.
46
Id. at 37, citing Carrie Menkel-Meadow, Portia in a Different Voice: Speculations on a Women's Lawyering
Process, 1 Berkeley Law J. 39, 59 (1985); see also Judith Resnik, On the Bias: Feminist Reconsiderations of the
Aspirations for Our Judges, 61 S. CAL. L. REV. 1878 (1988).
47
Id. at 28, 34.
relationship between offenders and victims of some small crimes to encourage restitutionary
[sic] remedies rather than punishment” may sound conservative by the standards of some
current programs, whose scope goes far beyond the four corners of the “small crimes” that
Menkel-Meadow suggests.48

IV. Ingroups, Outgroups, and “Reasonableness”

Derrida characterized law as “always an authorized force, a force that justifies itself or is
justified in applying itself, even if this justification may be judged from elsewhere to be
unjust.”49 As described earlier, the American legal system invests this authorization in juries
when “reasonableness” is to be evaluated, and the judiciary notably prides itself on the fact
that the power to determine verdicts is typically left outside itself.50
A purely subjective notion (at least as enforced within the court) of reasonableness
would not be conducive – nor even possible – in a pluralistic society. For instance, it would be
anathema to both be accepting of homosexuality and accepting that a “reasonable person” like
defendant would fly into a homicidal rage at being flirted with by a person of the same sex
because of the defendant’s ethnic heritage.51 Contrasting the difference between the reasoning
in Henningsen v. Bloomfield Motors, Inc.,52 establishing based on principled judicial reasoning
that a car manufacturer cannot waive all liability for injuries suffered in a crash due to defective
manufacturing, with those simple, unambiguous, and pre-established rules such as speed limits,
Dworkin claims:
The difference between legal principles and legal rules is a logical distinction. Both sets of
standards point to particular decisions about legal obligation in particular circumstances, but
they differ in the character of the direction they give. Rules are applicable in an all-or nothing
fashion. If the facts a rule stipulates are given, then either the rule is valid, in which case the
answer it supplies must be accepted, or it is not, in which case it contributes nothing to the
decision.53

Taking Dworkin’s theory, we may easily handle questions of traffic: a driver going above the
speed limit may be ticketed for speeding, a driver going below it may not. However, this
presupposes the potential for objectivity in laws – not inerrancy, which is a separate question,

48
See, e.g., Danielle Sered, Until We Reckon: Violence, Mass Incarceration, and the Road to Repair (2019)
(describing practicing restorative justice with victims and perpetrators of serious violent crimes, including
attempted murder.).
49
Derrida, supra note 24 at 947.
50
References to de Tocqueville’s praise for juries are ubiquitous in case law. See, e.g., State v. Scruggs, 2003 Ct. Sup.
10879 (Conn. Super. Ct. 2003) (citing Democracy in America repeatedly, including for the statement that “The jury
represents the public, bringing the public's values and common sense to bear upon the problems of justice. In turn,
the institution of the jury educates the public and heightens civic awareness of each citizen.”)
51
See People v. Gonzales, No. F051660, 2008 WL 2134130 (Cal. Ct. App. May 22, 2008) (rejecting such a claim;
California, under People v. Logan, 175 Cal. 45, 164 P. 1121 (1917), allows a defense mitigating murder to
manslaughter if circumstances would “excite an irresistible passion in a reasonable person.”).
52
32 N.J. 358, 161 A.2d 69 (1960)
53
Dworkin, The Model of Rules, 35 U. Chi. Law Rev. 14, 25 (1967).
but rather that rules can be made such that if they are applied correctly, the same conclusion
may always be reached. This is not so, as will be addressed with regards to jury verdicts.
Comparing law and justice Dworkin writes:
Law is also different from justice. Justice is a matter of the correct or best theory of
moral and political rights, and anyone’s conception of justice is his theory, imposed by his own
personal convictions, of what these rights actually are. Law is a matter of which supposed rights
supply a justification for using or withholding the collective force of the state because they are
included in or implied by actual political decisions of the past. Once again, however, this
statement of the difference is neutral among different theories about the role a person’s
convictions about justice should play in forming his convictions about law. 54

Dworkin permits subjective notions of justice, but only objective notions of law, even if
the means of discovering this one true law require engaging with subjective notions of
justice. This may be workable when considering competing values in what policy goals
may be set by law, such as competing notions of wealth maximization, distribution,
happiness, or wellbeing.55 For both passages, the notion breaks down when facts are
subject to juries to determine if an action is “reasonable.” Here, there can be no proper
wording, no well-considered drafting of a statute so as to ensure any such consistent
result. What one person believes to be evidence beyond all reasonable doubt, another
may quickly dismiss.56 The word “reasonable” is a necessity in any workable legal
system, but inevitably means that neither justice nor the law can be consistent – the
same rule and same evidence will not always lead to the same outcome. Post writes
that law “impervious to postmodernism . . . so long as the institutional policing
mechanisms of law retain general legitimacy among practicing lawyers and judges.”57 It
might equally well be said that “reason” is impervious to consistency.
Within a pluralistic society, one way to imagine what “reasonableness” might be is to
measure by community members either most or least inclined to grant it. It can be recognized
that within a pluralistic society, different evaluations may be made as to what is reasonable,
based not only on individual experience, but the effects of being within a particular stratum of
the population:
No one judgement "transcends particular conceptions of [reason], and anyone who
becomes aware of this must concede that the [judgement] that he or she embraces cannot be
legitimately cast as neutral or universally valid. This does not mean that one should weaken one's
commitment to one's conception of the good or the [judgements] derived from it, but it does
mean that one has no right to be confident that one's conception of [reason] and the
[judgements] associated with it would be [reasonable] for others committed to different
conceptions . . .58

54
Ronald Dwarkin, Law's Empire, 96 (1986).
55
Coleman, Efficiency, Utility and Wealth Maximization, 8 Hofstra Law. Rev. 509 (1980).
56
See, e.g., Edmonds v. State, 955 So. 2d 787, 825 (Miss. 2007) (Easley, J., dissenting on the granting of a new trial
to defendant Tyler Edmonds, as any error in his trial was surely harmless, and his conviction inevitable even with
the exclusion of improper evidence). At retrial, a jury quickly acquitted Edmonds.
57
Robert C. Post, Postmodern Temptations, 4 Yale J. Law. & Human 396.
58
Michel Rosenfeld, Law, Democracy, and, the Clash of Cultures: a Pluralist Account (2011).
 In a pluralistic society, a recognition that the stratum one comes from is not the arbiter
of reason, but that a cross-section of the community might lead to greater understanding of
reason, can be powerful. For instance, all-white juries are, by one study’s measure, sixteen
percent more likely to convict black defendants than white defendants (thereby declaring the
evidence to be “beyond all reasonable doubt” in the process). This gap disappears entirely
when at least one black juror is present; conversely the presence of one or more black jurors
makes the jury more likely to convict white defendants.59

V. Posner, Wealth Maximization, and Modeling “Reasonable Doubt”

The same challenges that face all schools of thought regarding defining reasonableness
in applying criminal law may also be applied to Judge Posner’s jurisprudence and theory,
despite his fondness for rigorous mathematical reasoning. To begin by explaining how Posner’s
wealth maximization principle conflicts with the estimation of “reason” in criminal law, first we
must approach Posner’s methods for considering what maximization means – which to Posner
is the ideal that jurisprudence and the law ought to attempt to achieve. Posner uses the term
“wealth” synonymously with what might otherwise be called utility, even as he distances
himself from the latter term. Posner criticizes utilitarianism, writing:
There is no clear basis in utilitarian theory for choosing between average and total
happiness, but the latter is more consistent with a simple insistence on utility as the maximand.
In summary, the logic of utilitarianism seems to argue for pushing the boundary as far out as
possible, for making the ethical goal the maximization of the total amount of happiness or
satisfaction in the universe. . . . Another difficulty with utilitarianism is the lack of a method for
calculating the effect of a decision or policy on the total happiness of the relevant population.60

The last sentence here is peculiar, as after describing the economic efficiency of wealth
maximization and the ability of money to convey the relative value of goods, Posner suggests
that rights can be valued similarly:
[T]he wealth maximization principle implies, first, an initial distribution of individual
rights (to life, liberty and labor) to their natural owners; second, free markets to enable those
rights to be reassigned to other users; third, legal rules that simulate the operations of the
market when the costs of the market transactions are prohibitive; fourth, a system of legal
remedies for deterring and redressing invasions of rights; and fifth, a system of personal morality
(the “Protestant virtues”) that serves to reduce the cost of market transactions. 61

59
Shamena Anwar et al., The Impact of Jury Race in Criminal Trials, 127 Q.J. ECON. 1017, 1033 (2012). Note that
only a miniscule fraction of juries contained four or more black jurors, the highest category in terms of black jurors
– so there were few, if any, all-black juries. This is predominately if not entirely reflective of the influence of a
minority of black jurors.
60
Richard Posner, Utilitarianism, Economics, and Legal Theory, 8 J. LEGAL STUD. 103 (1979). Notably, LeDuc sees a
possible change in Posner’s notion that this is separate from utilitarianism, rather than a version of it, in
subsequent works. See André LeDuc, The Anti-Foundational Challenge to the Philosophical Premises of the Debate
over Originalism, 119 Penn St. L. Rev. 131, n.387 (2014).
61
Posner, Id. at 127
On the one hand, Posner recognizes the challenge of calculating happiness within the
population as a measuring stick for sound policy, but has faith in a principled legal system to
calculate the proper valuation of rights and thereby the correct cost to impost on their
violations.62 This becomes relevant as one considers the mathematization and economization of
law that Posner considers. Posner elaborates on and applies this belief when evaluating the
terms of the Constitution. Posner does what economists would refer to as “overfitting”63 –
taking the facts (in this case, basic constitutional principles) as they are, and assuming they can
be made to fit a theory (that a priori, basic constitutional principles can be either left – or easily
altered, to fit an approximation of the current legal regime):
I claim, indeed, that both the prohibition against extracting evidence by torture (one meaning
that has been given to the Fifth Amendment's self-incrimination clause) and the prohibition
against slavery (the Thirteenth Amendment) can be given an economic grounding. A long history
of using torture to extract evidence has shown that it is an inefficient method of criminal
investigation and proof. It has very high error costs, creates much gratuitous suffering, and
deflects law enforcers from devoting adequate resources to solving difficult crimes; it is
sometimes easier to extract a confession from an innocent person by torture than to convict a
guilty person.64

Besides forcing one to wonder if Posner would support torture in spite of the Fifth Amendment
were it less effective at getting the innocent to confess, this is the wrong comparison. He
implicitly weighs the risk of getting an innocent person to confess to a crime against the
difficulty of getting a guilty one convicted. He does not do a weighing of the risk of an innocent
person being confessed and the probability of them being convicted based on their confession,
and the cost of this, against the ability of torture to get a guilty person to confess and the
probability of them being convicted on the basis of their confession, and the subsequent
benefit of this. Posner preserves the notion that this type of weighing can be compatible with
liberal democracy and modern notions of acceptable police practice only by comparing apples
to oranges. This showcases the dangers of attempting to mathematize linguistic standards.
The pragmatic notion that mathematical formulas can lead to the most effective
evaluation of legal standards was put on full display when Judge Posner attempted to
mathematize the standard for granting a preliminary injunction in American Hospital Supply
Corp. v. Hospital Products Ltd.65 Judge Posner explained that preliminary injunctions should be
granted if
𝑃 𝑥 𝐻(𝑃) > 𝐻(𝐷) 𝑥 (1 − 𝑃)

62
Id.
63
See Overfitting, Encyclopedia of Machine Learning, Springer Link (ed. Claude Sammut, Geoffrey I. Webb,)
available at: https://link.springer.com/referenceworkentry/10.1007/978-0-387-30164-8_623.
64
Richard A. Posner, The Constitution As an Economic Document, 56 Geo. Wash. L. Rev. 4, 19 (1987).
65
780 F.2d 589 (7th Cir. 1986); the following formula is on 593.
“where P is the probability that denial of the injunction would be an error; where H(p) is the
harm to the plaintiff if the injunction is denied; and where H(d) is the harm to defendant if the
injunction is granted.”66
Here begins the question: if one were to consider “reasonableness” from the pragmatic
view of Posner, how would we assign it in criminal matters? Return to the above challenge
regarding torture, and add in several variables. Let the letter I denote innocent and G denote
guilty. P(I) means the probability an individual is innocent. B(G) means the benefit of a result
happening to the guilty. C(I) means the cost of a result happening to the innocent.67 For
simplicity’s sake, given that this will be about acts an individual does not want to suffer, I will
assume there is no benefit to acts being done the innocent, and no cost to acts being done to
the guilty. Under a utilitarian rule, we should permit an act to be done to the innocent and
guilty alike when:
𝑃(𝐼) 𝑥 𝐶(𝐼) < 𝑃(𝐺) 𝑥 𝐵(𝐺)
For instance, if we let the subscript “torture” represent the act of torturing an innocent
person, we can see that allowing torturing should be allowed when:
𝑃𝑇𝑜𝑟𝑡𝑢𝑟𝑒 (𝐼) 𝑥 𝐶𝑇𝑜𝑟𝑡𝑢𝑟𝑒 (𝐼) < 𝑃𝑇𝑜𝑟𝑡𝑢𝑟𝑒 (𝐺) 𝑥 𝐵𝑇𝑜𝑟𝑡𝑢𝑟𝑒 (𝐺)
Note that we can substitute (1-P(I)) for P(G),68 and simplify to the following elegant
equation after solving for P(I). We ought to permit torture when:
𝐵𝑇𝑜𝑟𝑡𝑢𝑟𝑒 (𝐺)
𝑃𝑇𝑜𝑟𝑡𝑢𝑟𝑒 (𝐼) <
𝐶𝑇𝑜𝑟𝑡𝑢𝑟𝑒 (𝐼) + 𝐵𝑇𝑜𝑟𝑡𝑢𝑟𝑒 (𝐺)
If we return to the original formulation after the substitution, and rearrange to solve
𝑃(𝐺) (1 − 𝑃(𝐼))
=
𝑃(𝐼) 𝑃(𝐼)
This is Blackstone’s ratio, the number of guilty people we must see convicted before we are
willing to convict one innocent. With this, we might examine a Posner-type formulation for
Blackstone’s ratio. To justify convicting the innocent, we must have:
(1 − 𝑃(𝐼)) 𝐶(𝐼)
>
𝑃(𝐼) 𝐵(𝐺)

66
Id. For instance, if a there is an 80% chance that a denial would be in error, and it would cost a plaintiff $10,000 if
it were denied, and the defendant $30,000 if it is not, one would weigh (.8) x $10,000 against $30,000 x (1-.8), see
that $8,000 > $6,000, and subsequently grant the injunction.
67
I apologize for an extensive foray into mathematical formulas, however Posner has done the same repeatedly,
and I believe that the probability the reader loathes reading math times the cost to the reader of reading math is
less than the probability this formulation will draw out the peculiarities of the application of Posner’s thought if
applied to criminal law times the value in doing so.
68
For instance, an 80% chance that a person is guilty means a 20% chance that they are innocent. Or, out of 1, .8
and .2.
This is our optimal “beyond all reasonable doubt” ratio: so long as Blackstone’s ratio exceeds
the quotient of the cost of convicting the innocent and the benefit of convicting the guilty, a
Posner-type wealth (utility) type evaluation would insist we convict. Classical sources69 have
variously stated that it is better that ten guilty men should go free than that one innocent be
convicted,70 that it is better that one hundred guilty men should go free than that one innocent
be convicted,71 or conversely, as Feliks Dzerzhinsky, the leader of the Soviet secret police held,
that it was better to execute ten innocents than let one guilty man live.72 Lastly, there is the
hackneyed and stereotyped story of the wise Chinese man:
The story is told of a Chinese law professor, who listened as a British lawyer explained that
Britons were so enlightened that they believed it was better that ninety-nine guilty men go free
than that one innocent man be executed. The Chinese professor thought for a second and asked,
"Better for whom?”73

It might be unfair to attribute the above views to Posner, but perhaps not to his
methodology. Questionable elements in Posner’s mathematical adaptation of the preliminary
injunction formula show that the wealth maximizing pragmatic tendency to attempt
economically and mathematically model what are linguistic formula is vulnerable to attacks,
should elements to establish cause for a preliminary injunction are
(1) they have no adequate remedy at law and will suffer irreparable harm if the relief is not
granted; (2) the irreparable harm they would suffer outweighs the irreparable harm
defendants would suffer from an injunction; (3) they have some likelihood of success on the
merits; and (4) the injunction would not disserve the public interest. 74

Posner’s formulation is only one way to mathematize this test. There are alternatives, as can
easily be demonstrated.
The first element (no adequate remedy) is a threshold element and isn’t worked into
Posner’s equation; if the plaintiff has an adequate legal relief other than a temporary
injunction, there is no balancing of interests, they simply must pursue that option instead. This
can be written as ~R. The second element refers to what Posner writes as H(P) (the irreparable
harm suffered by the plaintiff if relief isn’t granted) and H(D) (irreparable harm for the
defendant if relief is granted). The second element (irreparable harm for the plaintiff and
defendant if a temporary injunction is not or is granted, respectively,) corresponds more closely
to H(P) > H(D) as being a gateway to element three, that P, the probability of success for the

69
All sourced from Volokh, Alexander (Sasha), N Guilty Men (1997). University of Pennsylvania Law Review, Vol.
146, No. 2, 1997, Available at SSRN: https://ssrn.com/abstract=11412.
70
William Blackstone, Commentaries *352.
71
Letter from Benjamin Franklin to Benjamin Vaughn (Mar. 14, 1785), in 11 The Works of Benjamin Franklin 11, 13
(John Bigelow ed., fed. ed. 1904).
72
"Lieber zehn Unshuldigeexecutieren, als einen Shuldigen laufen lassen." Und jeltz Lenin, Suddeutsche Zeitung,
Aug. 24, 1991, available in Lexis, World Library, Allwld File.
73
See Dominic Lawson, Notebook: The Voters Want Cash, Mr. Clarke, DAILY TELEGRAPH (London), Apr. 8, 1995, at
17, available in 1995 WL 7996172l; as cited in Volokh, Alexander (Sasha), N Guilty Men (1997). University of
Pennsylvania Law Review, Vol. 146, No. 2, 1997, Available at SSRN: https://ssrn.com/abstract=11412.
74
American Hospital Supply Corp. v. Hospital Products Limited, supra note 49. Note that this is from Posner’s case;
other cases
plaintiff, is arbitrarily considered to have some likelihood, or in other words, to be nontrivial.
Element four is not in Posner’s equation at all. Assuming this description is right, and describing
a likelihood of success on the merits as P > ϵ meaning that the probability of success is
nontrivial, and ~ π to indicate no disservice to the public, the correct formulation in Boolean
logic would be:
(~𝑅) ∧ (𝐻(𝑃) > 𝐻(𝐷)) ∧ ( 𝑃 > 𝜖 ) ∧ (~ 𝜋)
and a preliminary injunction should only be granted if this statement is true. Judge Posner’s
equation weighs the relative harm to the plaintiffs and defendant by the probability of the
plaintiff’s success; the plain text of the test described in the formulation Posner cites does not
do this.
The synthesis of the Posner’s debatable formula and the commentary on Blackstone’s
ratio is that the notion that a pragmatic and mathematical analysis of law, and subsequently,
one of “reasonable doubt,” is not an implausible threat, and that this method can easily
produce questionable results. Linguistic formulas are tricky if not impossible to translate into
words. It is a common refrain in jury instructions that there is no particular probability that
corresponds to “beyond all reasonable doubt.” 75 The danger in this is that mathematics gives
the appearance of cold objectivity, when matters such as the correct Blackstone’s ratio make
clear to us that we are making value judgements if we choose to evaluate “reasonable doubt”
this way.

V. Conclusion
Post writes “There is no postmodern law, although there are postmodern commentaries
on law.”76 The implication of including the word “reason” in a statute is anathema to a
discourse that doubts its capacity, though cannot, in this context, offer an alternative. Menkel-
Meadow’s commentary on criminal makes this clear: postmodernism’s amorphous nature and
horizonless restrains its ability to come to final conclusions, while law requires this.
While the postmodern perspective on the shortcomings of the capacity for reason may
lead on to wonder if it is possible to see beyond Plato’s Cave at all, even modern perspectives
leave no small room for debate and criticism, and no end in sight. The focus here has been
primarily on “reasonable doubt” as it is a consistent standard within criminal law, while the
other circumstances in which it is used – self-defense, negligence, and others – involve more
variation. Nonetheless, the same question raised here merit consideration elsewhere – the
ineffability of how to evaluate what is reasonable.

75
See, e.g., Grinnage v. State, No. 1514 (Md. Ct. Spec. App. Aug. 10, 2017) (wherein a judge instructed a jury
“Lastly, proof beyond a reasonable doubt. I'm going to end with this. The jury instructions tell you it is not
mathematical, there is no number that we can put on it and it is not some percentage.”).
76
Robert C. Post, Postmodern Temptations, 4 Yale J. Law. & Human 391.
 If Dworkin’s “one true law” schema77 holds, for each set of facts there ought to be only
one conclusion in law. Yet Dworkin’s theory is challenged by the fact that often there will be, as
Menkel-Meadow confronted, facts which are “not susceptible to a binary,”78 and even were
they, the determination of what facts are true79 – the task we assign juries, merits critical
examination in its own right.
When considering “reasonableness,” the concentration on what it means for an alleged
set of facts to be “beyond all reasonable doubt” is valuable not just because of the consistency
of this standard, but because of its gravity. “Beyond all reasonable doubt” has potentially
devastating implications – this is the standard that leads to imprisonment, execution,
probation, parole, sex offender registration,80 and the denial of public privileges such as
housing assistance.81 Allowing the concept of “beyond all reasonable doubt” to go without
critical examination is to contentedly watch a game of ‘hot potato’ played with a grenade.

77
See page 10.
78
Supra note 39.
79
As the legal system, though not Derrida, requires.
80
Surprisingly, some states actually permit judges to require acquitted defendants to register as sex offenders if the
judge decides, contra a jury’s decision that evidence was not beyond all reasonable doubt, evidence was clear and
convincing. See People v. Britton, 31 N.Y.3d 1019, 75 N.Y.S.3d 459, 99 N.E.3d 852 (N.Y. 2018).
81
See Curtis, M. A., Garlington, S., & Schottenfeld, L. S. (2013). Alcohol, Drug, and Criminal History Restrictions in
Public Housing. Cityscape, 15, 37–52.