How People Judge What Is Reasonable

67 Pages Posted: 3 Feb 2018 Last revised: 19 Dec 2018

Date Written: December 17, 2018

Abstract

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.

Keywords: reasonable, reasonableness, reasonable person, legal theory, negligence, tort

Suggested Citation

Tobia, Kevin P., How People Judge What Is Reasonable (December 17, 2018). Alabama Law Review, Vol. 70, 293-359 (2018). Available at SSRN: https://ssrn.com/abstract=3108236 or http://dx.doi.org/10.2139/ssrn.3108236

Kevin P. Tobia (Contact Author)

Yale University ( email )

New Haven, CT 06511
United States

ETH Zurich ( email )

Rämistrasse 101
ZUE F7
Zürich, 8092
Switzerland

Register to save articles to
your library

Register

Paper statistics

Downloads
384
Abstract Views
2,275
rank
78,141
PlumX Metrics