How People Judge What Is Reasonable

A classic debate concerns whether reasonableness should be understood statistically (e.g., reasonableness is what is common) or prescriptively (e.g., reasonableness is what is good). This Article elaborates and defends a third possibility. Reasonableness is a partly statistical and partly prescriptive “hybrid,” reflecting both statistical and prescriptive considerations. Experiments reveal that people apply reasonableness as a hybrid concept, and the Article argues that a hybrid account offers the best general theory of reasonableness. First, the Article investigates how ordinary people judge what is reasonable. Reasonableness sits at the core of countless legal standards, yet little work has investigated how ordinary people (i.e., potential jurors) actually make reasonableness judgments. Experiments reveal that judgments of reasonableness are systematically intermediate between judgments of the relevant average and ideal across numerous legal domains. For example, participants’ mean judgment of the legally reasonable number of weeks’ delay before a criminal trial (ten weeks) falls between the judged average (seventeen weeks) and ideal (seven weeks). So too for the reasonable num- ber of days to accept a contract offer, the reasonable rate of attorneys’ fees, the reasonable loan interest rate, and the reasonable annual number of loud events on a football field in a residential neighborhood. Judgment of reasonableness is better predicted by both statistical and prescriptive factors than by either factor alone. This Article uses this experimental discovery to develop a normative view of reasonableness. It elaborates an account of reasonableness as a hybrid standard, arguing that this view offers the best general theory of reasonableness, one that applies correctly across multiple legal domains. Moreover, this hybrid feature is the historical essence of legal reasonableness: the original use of the “reasonable person” and the “man on the Clapham omnibus” aimed to reflect both statistical and prescriptive considerations. Empirically, reasonableness is a hybrid judgment. And normatively, reasonableness should be applied as a hybrid standard

Constitutional Reasonableness

The concept of reasonableness pervades constitutional doctrine. The concept has long served to structure common law doctrines from negligence to criminal law, but its rise in constitutional law is more recent and diverse. This Article aims to unpack surprisingly different formulations of what the term reasonable means in constitutional doctrine, which actors it applies to, and how it is used. First, the underlying concept of reasonableness that courts adopt varies, with judges using competing objective, subjective, utility-based or custom-based standards. For some rights, courts incorporate more than one usage at the same time. Second, the objects of the reasonableness standard vary, assessed from the perspective of judges, officials, legislators, or citizens, and from the perspective of individual decision-makers or general institutional or government perspectives. Third, judges may variously apply a constitutional reasonableness standard to a right, to the assertion of defenses, waivers, or limitations on obtaining a remedy for the violation of a right, or to standards of review. The use of the common term reasonableness” to such different purposes can blur distinctions between each of these three categories of standards. The flexibility and malleability of reasonableness may account for its ubiquity and utility. Entire constitutional standards can - and have - shifted their meaning entirely as judges shift from one concept or usage of reasonableness while appearing not to change the “reasonableness” standard or to depart from precedent. That ambiguity across multiple dimensions explains both the attraction and the danger of constitutional reasonableness. In this Article, I point the way to an alternative: regulatory constitutional reasonableness, in which reasonableness is presumptively informed by objective and empirically-informed standards of care, rather than a set of shape-shifting inquiries

How and Why the Per Se Rule Against Price-Fixing Went Wrong

Most scholars believe the Supreme Court dropped its per se rule against price-fixing in Appalachian Coals (1933), re-instituting that rule in Socony-Vacuum (1940), but that the rule ignored "reasonableness" until BMI (1979), and that Maricopa (1982) relied on Socony to step back from "reasonableness" again. However, the view that Socony's per se rule had nothing to do with "reasonableness" came from unreasonably ignoring Socony's comments on Appalachian Coals, which came from misunderstanding Appalachian Coals by ignoring the economic implications of the facts the district court found. Those implications show that Appalachian Coals, Socony, and BMI all gave the same price-fixing rule.

Knowledge and reasonableness

The notion of relevance plays a role in many accounts of knowledge and knowledge ascription. Although use of the notion is well-motivated, theorists struggle to codify relevance. A reasonable person standard of relevance addresses this codification problem, and provides an objective and flexible standard of relevance; however, treating relevance as reasonableness seems to allow practical factors to determine whether one has knowledge or not—so-called “pragmatic encroachment.” I argue that a fuller understanding of reasonableness and of the role of practical factors in the acquisition of knowledge lets us avoid pragmatic encroachment

Ex Post Facto Payments in Legally-aided Criminal Cases in the Old Bailey

A much more pervasive scheme for overseeing the reasonableness of fees charged by legal professionals exists in England than in the United States. In England, for example, with or without a specific agreement over the fee, the client can challenge the solicitor\u27s charges, and the court or the Law Society will assess their reasonableness.\u27 Similarly, as part of assigning costs to the losing party, the reasonableness of the winning solicitor\u27s claim for fees is evaluated. The lay client can even dispute the reasonableness of the barrister\u27s fee after the fact. In the United States, by contrast, lawyers hammer out agreements with private clients, in civil or criminal matters, that, except in contingency fee arrangements or with exploitative arrangements, are policed only by the lawyer\u27s risk that the client will change lawyers, lured by a more congenial fee. And with no legal aid in civil matters in America, private lawyers representing indigent criminal defendants are paid a set amount by hour, by act, or by case, almost never with any prospect of enhancement in light of the case\u27s difficulty, and without much likelihood of review after the representation has ended to assess the reasonableness of the total fee sought. Generally today in England, and before 1997 in the bulk of legallyaided criminal cases, the defending barrister\u27s and solicitor\u27s fees were fixed, as is universally true with lawyers\u27 remuneration in parallel settings in the United States. In the most serious criminal cases underwritten by legal aid, however, until 1997 the defending barrister\u27s and solicitor\u27s fees were both calculated after each\u27s representation had ended. The process of making those ex post facto calculations is the subject of this article. There is good reason to examine this now-eclipsed method of paying legal professionals. As apparently the first attempt (or at least publicized attempt) to describe and evaluate the process of ex post determination of legal professionals\u27 fees, this study suggests the need to expand the inquiry, to examine ex post determinations in civil matters as well. An assumption of any scheme that has third parties test the reasonableness of a legal professional\u27s claim for compensation is that the results are consistent and predictable within an acceptable range of deviation. Moreover, the legal professionals must be satisfied that the distinctions which lead one Queen\u27s Counsel, say, to be paid less than another are justifiable. If these criteria are not met, it is possible that solicitors and barristers will refuse to represent certain sorts of lay clients4 or will be reluctant to perform some aspect of representation that they would otherwise undertake if not worried about being denied appropriate recompense. Section II introduces the current and discarded systems of compensating defending advocates in legally-aided, criminal cases. Section III describes and evaluates the results of the examination of 63 files taxed or being taxed at the Old Bailey (the Central Criminal Court) in London. Section IV summarizes the results of the study

The "Reasonable Man" in Colonial Nigeria

A key scholarly debate in late colonial law concerns the interpretation of the ‘reasonable man’. The reasonable man, whose paradigmatic status was itself a contested subject for English law, was all the more problematic for colonial law when the idea of a ‘reasonable native’ was presumed in and of itself to be questionable. Should the ‘native’ be held to the same standard of reasonableness as the Englishman? And if not, what standard of reason was valid? This article examines how popular literature of the period, both fiction and memoir, reflects these concerns. Focusing on accounts of colonial Nigeria, I show how this literature repeatedly complicates the perceived ‘reasonableness’ of both Europeans and colonial subjects. Moreover, I demonstrate that these complications, frequently dramatized through narratives of the uncanny, make visible colonial anxieties about the distinction between native custom and colonial authority

Reasonable Provocation and Self-Defense: Recognizing the Distinction Between Act Reasonableness and Emotion Reasonableness

This brief essay, written for the Criminal Law Conversations project, argues that the doctrines of provocation and self-defense should recognize a distinction between act reasonableness and emotion (or belief) reasonableness. The essay proceeds in three parts. In Part I, I examine the doctrine of provocation. I start by explaining what I mean by “act reasonableness” (a finding that a reasonable person in the defendant’s shoes would have responded or acted as the defendant did) and “emotion reasonableness” (a finding that the defendant’s emotional outrage or passion was reasonable). I note that only two of the fifty states require act reasonableness while the majority of states require only emotion reasonableness. I explore possible reasons for the reluctance to require act reasonableness. I then offer a different way to understand act reasonableness. Under my suggested reform, the reasonableness of the provoked defendant’s action would depend on the type of force and degree of force he used in relation to the triggering provocation. In other words, act reasonableness would entail a kind of proportionality review. Proportionality, however, would not mean that the provoked defendant would have to respond with force equal to the force used by the provoker. The defendant’s act would just need to be seen by the jury as commensurate with the wrong inflicted by the provoking party. In Part II, I examine the doctrine of self-defense. A similar distinction between emotion reasonableness and act reasonableness exists in the self-defense arena. Even though act reasonableness is implied in self-defense doctrine’s proportionality requirement, jury instructions on self-defense tend to focus only on emotion (or belief) reasonableness. Jurors are instructed to find that the defendant reasonably believed (or reasonably feared) deadly force was necessary to counter an imminent threat of death or grievous bodily injury. Jurors are not instructed to separately find that the defendant’s act of shooting or stabbing or beating the victim was reasonable. I argue that self-defense doctrine should make explicit that which is implicit. Jurors should be instructed to find not only that the defendant reasonably believed deadly force was necessary to counter an imminent threat of death or grievous bodily injury, but also that the defendant’s acts were reasonably proportionate to the threatened harm. In Part III, I conclude that my proposal for reform of the doctrine of self-defense is not a radical reform. My proposal with regard to self-defense merely makes explicit that which is implicit. In contrast, my proposal for reform of provocation doctrine constitutes a substantial departure from current practice in most jurisdictions. I argue that this departure is worthwhile because the provoked killer has taken a human life and therefore deserves heightened scrutiny of the reasonableness of his actions

Consent Searches and Fourth Amendment Reasonableness

This Article builds on a growing body of scholarship discussing the role of reasonableness in consent-search doctrine. Although the language of “voluntary consent” implies a subjective inquiry into the state of mind of the person granting consent, the U.S. Supreme Court has repeatedly injected an objective standard of reasonableness into its analysis of a citizen’s consent. Several scholars have characterized the Court’s consent jurisprudence as focusing not on true voluntariness but on the reasonableness of police conduct, which they argue is appropriate because the touchstone of the Fourth Amendment is “reasonableness.” While the renewed scholarly focus on the role of reasonableness in the Court’s consent jurisprudence is helpful in explaining the puzzling disconnect between language and doctrine, much of this current emphasis has been distorted by the dichotomy between coercion and voluntariness: Did police use (unreasonable) coercive tactics that would override a (reasonable) person’s free will? However, the Fourth Amendment’s default concept of reasonableness is based not on coercion or volition but on its requirement of a warrant based on probable cause. Typically when the Court recognizes an exception to the default rule, it grounds that exception in a concept of reasonableness that requires a weighing of the governmental interests served by the warrantless conduct against the level of the intrusion on affected Fourth Amendment interests: liberty and privacy. Because the Court has relied on the myth of voluntary consent as a proxy for the warrant and probable cause requirements that normally define “reasonableness” in the Fourth Amendment context, the Court has bypassed the usual substitute proxy for Fourth Amendment reasonableness: an express weighing of the governmental and citizen interests at stake. This Article engages in the reasonableness inquiry that the Supreme Court has avoided. Drawing on the Court’s approach to reasonableness in other Fourth Amendment contexts, this Article first looks to the concept tof “macro reasonableness” to argue that the Court has overestimated the value of consensual searches to law enforcement and underestimated their effect on privacy. While the Court has emphasized the value of consensual searches yielding incriminatory evidence that might go undetected absent the consent-search doctrine, many consent searches serve no government interests at all. Meanwhile the pervasiveness of the practice imposes tremendous costs to privacy. This Article then seeks to reshape the consent-search exception, using a requirement of “micro reasonableness,” to make the doctrine of consent more reflective of Fourth Amendment reasonableness. Under this requirement, courts would examine not only the voluntariness of the consent underlying the search, but also the government’s reasons for requesting the consent and the scope of the consent requested

Consent Searches and Fourth Amendment Reasonableness

This Article builds on a growing body of scholarship discussing the role of reasonableness in consent-search doctrine. Although the language of “voluntary consent” implies a subjective inquiry into the state of mind of the person granting consent, the U.S. Supreme Court has repeatedly injected an objective standard of reasonableness into its analysis of a citizen’s consent. Several scholars have characterized the Court’s consent jurisprudence as focusing not on true voluntariness but on the reasonableness of police conduct, which they argue is appropriate because the touchstone of the Fourth Amendment is “reasonableness.” While the renewed scholarly focus on the role of reasonableness in the Court’s consent jurisprudence is helpful in explaining the puzzling disconnect between language and doctrine, much of this current emphasis has been distorted by the dichotomy between coercion and voluntariness: Did police use (unreasonable) coercive tactics that would override a (reasonable) person’s free will? However, the Fourth Amendment’s default concept of reasonableness is based not on coercion or volition but on its requirement of a warrant based on probable cause. Typically when the Court recognizes an exception to the default rule, it grounds that exception in a concept of reasonableness that requires a weighing of the governmental interests served by the warrantless conduct against the level of the intrusion on affected Fourth Amendment interests: liberty and privacy. Because the Court has relied on the myth of voluntary consent as a proxy for the warrant and probable cause requirements that normally define “reasonableness” in the Fourth Amendment context, the Court has bypassed the usual substitute proxy for Fourth Amendment reasonableness: an express weighing of the governmental and citizen interests at stake. This Article engages in the reasonableness inquiry that the Supreme Court has avoided. Drawing on the Court’s approach to reasonableness in other Fourth Amendment contexts, this Article first looks to the concept tof “macro reasonableness” to argue that the Court has overestimated the value of consensual searches to law enforcement and underestimated their effect on privacy. While the Court has emphasized the value of consensual searches yielding incriminatory evidence that might go undetected absent the consent-search doctrine, many consent searches serve no government interests at all. Meanwhile the pervasiveness of the practice imposes tremendous costs to privacy. This Article then seeks to reshape the consent-search exception, using a requirement of “micro reasonableness,” to make the doctrine of consent more reflective of Fourth Amendment reasonableness. Under this requirement, courts would examine not only the voluntariness of the consent underlying the search, but also the government’s reasons for requesting the consent and the scope of the consent requested

Sufficient condition for Blackhole formation in spherical gravitational collapse

A sufficient condition for the validity of Cosmic Censorship in spherical gravitational collapse is formulated and proved. The condition relies on an attractive mathematical property of the apparent horizon, which holds if ''minimal'' requirements of physical reasonableness are satisfied by the matter model.Comment: 5 pages, LaTeX2