Kevin P. Tobia (Yale University) has posted Reasonableness as Normality on SSRN. Here is the abstract:
A classic debate concerns whether reasonableness should be understood descriptively (like averageness) or prescriptively (like welfare maximization). This Article elaborates and defends a third possibility. Reasonableness is a partly descriptive and partly prescriptive “hybrid concept” (like normality).
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 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 for an online product to be refundable (5) falls between the judged average (4) and ideal (6). 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, the reasonable annual number of loud events on a football field in a residential neighborhood, and many others. This pattern of judgment (intermediacy between the relevant average and ideal) is precisely the same pattern found in judgments about the hybrid concept of normality. What is considered legally reasonable is best predicted by what is considered normal.
The Article uses this empirical discovery to support a normative theory of reasonableness — how reasonableness standards should be applied. It elaborates an account of reasonableness as a hybrid notion like normality, advancing arguments for the distinction between purely descriptive notions like averageness, purely prescriptive notions like welfare-maximization, and hybrid notions like normality. 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 judgment of a hybrid concept like normality. Finally, the hybrid view of reasonableness is the best contender for a domain-general theory of reasonableness, one that applies correctly across tort law and other domains. Empirically, reasonableness is normality; and normatively, reasonableness should be understood as normality.
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