How People Judge What Is Reasonable

Alabama Law Review 70 (2):293-359 (2018)
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Abstract
A classic debate concerns whether reasonableness should be understood descriptively (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 descriptive and partly prescriptive “hybrid concept.” 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 reasonableness. Reasonableness sits at the core of countless legal standards, yet little work has investigated how ordinary people (i.e., potential jurors) actually make reasonable-ness 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 for an online product to be refundable (five weeks) falls between the judged average (four weeks) and ideal (six weeks). So too for the reasonable number of days to accept a contract offer, the reasonable number of weeks of construction delay, the reasonable interest rate, and the reasonable annual number of loud events on a football field in a residential neighborhood. What is considered legally reasonable is better predicted by both descriptive 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 descriptive and prescriptive considerations. Empirically, reasonableness is a hybrid judgment. And normatively, reasonableness should be applied as a hybrid standard.
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Archival date: 2018-11-07
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