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to have intercourse with a sixteen-year-old, only to find that (1) she is sufficiently mature to consent and (2) the proxy age is set at fifteen. If the actor chooses – indeed, perhaps desires – to break the law (but to have consensual sexual intercourse), should anything be done with such an actor?

We believe that once we deem “undermining the rule of law” to be a legally recognized harm, then such an actor is culpable. Moreover, because the seriousness of the offense is not tied to the imagined harm but to the specific value of the rule of law, the same weight will apply to all potential scofflaws. Likewise, our “epistemically arrogant” actor, who ignores the proxy crime’s bright line of sixteen because he believes he can ascertain valid consent in a fifteen-year-old girl, if he is not reckless as to nonconsent, will be guilty, not at the level of one who is so reckless, but at the uniform level set for all scofflaws.

D. LEGALITY QUESTIONS

Our preference for standards over rules may be seen as raising legality concerns. Indeed, Justice Scalia has argued for the “rule of law” as a “law of rules.”156 The rule-of-law values said to be served by rules are the “appearance of equal treatment” and “predictability.”157 Indeed, where a statute fails to provide fair notice or allows for too much discretion, the Supreme Court may declare the statute void for vagueness.158 The Montana Supreme Court voiced the same concerns in invalidating the standards-based speed limit.

Recently, Peter Westen has argued that these two reasons for finding statutes void for vagueness are unpersuasive.159 In his view, lack of notice is not the problem. After all, a vague term is potentially quite broad, so an actor can hardly claim that he did not have notice that the term applied. Rather, the concern is the concern that underlies the “rule of lenity” – the concern that actors not be punished unless “it can confidently be said the political community believes [the actor] is deserving

156Antonin Scalia, “The Rule of Law as a Law of Rules,” 56 U. Chi. L. Rev. 1175 (1989).

157Id. at 1178–1179.

158See Westen, supra note 62, at 292; City of Chicago v. Morales, 527 U.S. 41 (1999); Kolender v. Lawson, 461 U.S. 352 (1982).

159Westen, supra note 62, at 293–302.

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of it.”160 According to Westen, arbitrary and discriminatory enforcement raises equal protection or liberty concerns – not due process (fair notice) ones.161 We find Westen’s reasoning persuasive on these matters, and we add our voice to his in the discussion here.

1. Notice

One critical question is whether our culpability standard actually fails to give notice. We doubt it. A brief example should make our point clear. One of us (and you can likely guess which one) was visiting a pre-K to fifth-grade school to decide whether her son should attend. In the fourthgrade classroom, she saw a poster board that listed the rules of the classroom. There was no rule forbidding hitting; there was no rule forbidding kicking; there was no rule forbidding biting. There was, in fact, only one rule – the Golden Rule. It was clear, concise, and easy to memorize.

Indeed, the Golden Rule is arguably more understandable than the indefinitely many narrow conduct rules that it potentially instantiates. For even if it were possible to write down every potential risk and every potential justifying reason, such a set of classroom rules would be so expansive that no student could hope to have notice of what the school requires. Moreover, any attempt to narrow the coverage to fewer rules creates gaps. The set of articulated rules would then be woefully underinclusive.

Standards can give as much notice as rules in cases such as this. It seems to us that there is little doubt that these nine-year-olds understand that the Golden Rule applies to hitting, kicking, and biting.162 And, as Westen notes, the only question will be how to treat conduct that lies at the boundaries of the Golden Rule – a point at which the principle of lenity should be applied. This principle of lenity is built into our code, as no jury can convict unless it finds that what the actor did is a “gross deviation” from what the ordinary citizen, with ordinary concern for the interests of others, would do.

160Id. at 293.

161Id.

162Cf. United States v. Ragen, 314 U.S. 513, 523 (1942) (“The mere fact that a penal statute is so framed as to require a jury upon occasion to determine a question of reasonableness is not sufficient to make it too vague to afford a practical guide to permissible conduct”).

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2. Constraining Power

Rules are also believed to curb abuse – not only those abuses caused by whim or caprice but also, and more importantly, those abuses that stem from bias and prejudice.163 Such abuses may result from decisions by jurors, who, consciously or unconsciously, are biased, but they may also result from decisions by police officers and prosecutors.

Although we believe that police and prosecutors may be tempted to employ discriminatory practices, we are unpersuaded that rules are the answer to the problem. For one thing, although there has been little scholarly attention to this matter,164 laws may be underenforced in a discriminatory manner. But a nonenforcement decision – not to devote resources to investigating or prosecuting a particular crime – has nothing to do with whether the conduct at issue violated a rule or a standard. Rather, the problem is a lack of transparency in determining when police and prosecutors choose not to investigate or prosecute. Where a law is being enforced discriminatorily, the correct remedy is not to invalidate the law but to invalidate the discriminatory prosecution.165

Moreover, a second check on unfettered discretion is the requirement that the actor’s culpable choice must constitute a gross deviation from that of a law-abiding citizen. Not just any slip-up will do. Criminal conduct will not be the sort of behavior about which reasonable minds will likely disagree. Instead, to be criminal, the actor’s discounting or dismissal of the interests of others must differ sharply from how the rest of the community believes those interests should be treated. Although this test may not prevent discriminatory selection for prosecution, it does provide some check on the ability of jurors to apply different standards to different actors.

Jurors are the appropriate parties for determining the punishment the actor deserves.166 Since Apprendi, there has been a renewed interest in the jury’s role in sentencing. Although some commentators argue

163Jeffries, supra note 60, at 212–213.

164But see Alexandra Natapoff, “Underenforcement,” 75 Fordham L. Rev. 1715 (2006).

165See Westen, supra note 62, at 300. See also Larry Alexander, “Equal Protection and the Prosecution and Conviction of Crime,” 2002 U. Chi. Legal F. 155.

166See generally Morse, supra note 34.

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that the jury should, at the very least, be apprised of the sentencing consequences of its decisions,167 others seek to give the jury even greater sentencing power.

Those who argue for increased jury power point to the Framers’ view that the jury should serve as an important check on the power of the state – be it the executive, the legislature, or the judiciary.168 Indeed, the jury’s unreviewable power is the one significant safety valve for combating the overinclusive nature of criminal law rules.169 According to Rachel Barkow,

Even if the people’s representatives agreed that certain behavior should be criminalized, the Framing generation wanted the people themselves to have a final say in each case. In criminal trials – trials that, at their core are trials of the human condition and morality – the jury would allow the morality of the community and its notions of fundamental law to inform the interpretation of the facts and, in some cases, to overcome the rigidity of a general criminal law. That the jurors have no expertise in questions of legal interpretation was not a cause for concern. The purpose of the jury was to inject the common-sense views of the community into a criminal proceeding to ensure that an individual would not lose her liberty if it would be contrary to the community’s sense of fundamental law and equity.170

Of course, one might argue that there is a difference between giving the jury the power to nullify a law and giving the jury the power to “make” law. However, our jurors’ decision making will be constrained by the code and its guidelines for determining the actor’s culpability. Moreover, we believe that the threshold question – did the actor manifest insufficient concern for others – is a question about community expectations and our societal understanding of what citizens owe each other. These are precisely the questions the jury should be answering.

167See, e.g., Cahill, supra note 95.

168Id. at 103–104. Rachel E. Barkow, “Recharging the Jury: The Criminal Jury’s Constitutional Role in an Era of Mandatory Sentencing,” 152 U. Pa. L. Rev. 33, 49–51 and 60–61 (2003).

169Barkow, supra note 168, at 36, 39.

170Id. at 58–59.