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Lewis & Clark Law Review

Volume 14 / Number 4 / Winter 2010



The Reasonable Person: 
A Conceptual 
Biography in Comparative Perspective

Mayo Moran

As the common law’s most enduring fiction, the reasonable person fulfills a great many different roles across very different bodies of law. Courts reach for the reasonable person when the relevant standard requires some attentiveness to the individual qualities of the litigant as well as to the objective content of the legal norm. This unique blend of subjective and objective qualities forms the conceptual foundation for the reasonable person and is the source of his utility. Thus it is unsurprising to find him making many appearances across both private and public law. Beginning with tort law and then moving across other fields of private law, into criminal law and now more recently into administrative and constitutional law, the reasonable person has enjoyed a period of remarkable expansion. However, oddly enough, this expansion has occurred at the very same time that the reasonable person has been bedeviled by increasing controversy. Though there is some general skepticism about whether the reasonable person is anything more than just a vehicle for judicial discretion, many of the critiques of the reasonable person also have a much sharper edge. Egalitarian critics point out that the reasonable person all too often seems to serve as a vehicle for importing discriminatory views into the heart of the legal standard. And the reasonable person does indeed seem to be inextricably bound up with equality—apparently vital to securing the law’s commitment to interpersonal equality, at the very same time that he also appears to fatally undermine it. This paradoxical relationship of the reasonable person to the law’s aspiration to equality is perhaps nowhere so evident as in the fact that he was imported into very equality-sensitive areas of public law at the very same time that he was being forcefully critiqued on equality grounds in private and criminal law.

Tracing the equality effects of the reasonable person through his various appearances helps to shed some light on this otherwise paradoxical development. Indeed, it is clear that the reasonable person was initially imported into equality-sensitive areas of public law precisely for egalitarian reasons. Noting how this is so makes apparent that the reasonable person actually occupies several quite different roles, some of which are culpability-determining (as in tort and criminal law) and others of which are perspectival or judgment-related (as in administrative and constitutional law). Viewed in this light, it is possible to better understand the introduction of the reasonable person in equality-sensitive areas. Fuelled perhaps in part by increasing sensitivity to the problem of objective judgment, judges began to turn to the reasonable person when egalitarian concerns were acute. So understood in this context, the reasonable person could actually serve to correct structural deficiencies in the judicial point of view. This approach suggests some important implications for how the reasonable person inquiry ought best proceed. There remain, however, pressing questions about whether the reasonable person is actually the best means for correcting structural difficulties with the judicial point of view.

Negotiating the Situation: The Reasonable Person in Context

Lu-in Wang

This Essay argues that our understanding of the reasonable person in economic transactions should take into account an individual’s race, gender, or other group-based identity characteristics—not necessarily because persons differ on account of those characteristics, but because of how those characteristics influence the situations a person must negotiate. That is, individuals’ social identities constitute features not just of themselves, but also of the situations they inhabit. In economic transactions that involve social interaction, such as face-to-face negotiations, the actor’s race, gender, or other social identity can affect both an individual actor and those who interact with him or her, because those characteristics often create expectations, based largely on group- based stereotypes, that influence the parties on both sides of the transaction. Individuals’ social identities thereby can influence their constraints and incentives, and accordingly their choices, behavior, and outcomes.

This Essay offers a couple of well-known examples of the influence of social stereotypes on individuals’ choices, behavior, and outcomes in economic transactions. It then provides a more extended examination of the effect of social identity on economic transactions by drawing upon a recent, growing, and fascinating area of social psychological research into the effect of gender on negotiations. The findings of this research are both disturbing and promising: disturbing because they show that stereotypes can influence the behavior of both women and men in negotiations, to the detriment of women, even if the individuals do not believe the stereotypes to be true, and that stereotypes can interact with other features of the situation to aggravate their tendency to promote unequal outcomes. The findings are promising as well, however, because they also show that gender stereotypes can be moderated or even counteracted by yet other features of the situation. Appreciating the situation-altering yet situation-sensitive influence of social identities such as gender provides us with a richer understanding of the circumstances in which people interact and shows that, sometimes, common economic transactions take place in different places for different people.

The Grammar of Trademarks

Laura A. Heymann

How do people talk when they talk about trademarks? If trademarks have become, as linguist Geoffrey Nunberg suggests, our “new global tongue,” perhaps we should pay greater attention to the grammar we use when we talk about them. We use “Coke” to refer to the Coca-Cola beverage in the North, and “coke” to refer to any kind of soda in the South, yet we still manage to get the drinks we desire. We use trademarks as verbs—we “xerox” a document or “tivo” a television program—without losing sight of the fact that “Xerox” and “TiVo” are brands of particular products. We use trademarks as metaphor and as slang—“Kleenex,” for example, has been used as street language for ecstasy—without changing our opinion of the products to which they relate. And yet, like overly academic grammarians, courts and trademark owners often rely on linguistic structures and rules in trademark law, telling consumers how to use and pronounce the names of products and services with which they engage and defining rights based on outmoded assumptions about conversations around brands. Thus, as with the debate over the proper role of dictionaries, trademark law might benefit from a more direct consideration of its role in creating language—in other words, whether it should be prescriptive (and define proper word usage) or descriptive (and reflect common word usage). Incorporating linguistic theory on language formation helps to begin this inquiry.

Gaining Some Perspective in Tort Law:
A New Take on Third-Party Criminal Attack Cases

Martha Chamallas

Despite the prominence of the objective “reasonable person standard” in tort doctrine, it is a mistake to conclude that perspective has no place in contemporary tort law. Although explicit perspectival standards, such as the “reasonable woman standard,” have gained little acceptance in torts, the perspectives and experiences of non-dominant social groups have sometimes been taken into account in key contexts that involve “culturally polarized understandings of fact” and differing judgments about what constitutes reasonably safe behavior. Notably, the battle has not been over precise formulations of the duty to exercise reasonable care, but over whether to impose a duty to exercise reasonable care in the first instance.

This Article examines third-party criminal attack claims against landlords, businesses, employers, and other entities charged with negligence for failing to detect and remedy dangerous conditions and prevent sexual assaults and other criminal attacks on their premises. The victims in these cases are often women, racial minorities, and low-income residents of high-crime areas. The Article describes the lack of consensus in the courts as to whether defendants owe a duty to take reasonable measures to guard against crime and analyzes the recent position taken by the Restatement (Third) of Torts in favor of imposing a duty in all but exceptional cases. The Article endorses the willingness of some courts in sexual assault cases to impose a duty and articulate a concept of reasonable care that requires defendants to make their premises equally safe for men and women. It criticizes the line of cases which rejects a duty of due care in high-crime areas, excuses defendants from taking precautions proportionate to the risk, and thereby fails to express a norm of equal safety regardless of where a person resides.

What’s Reasonable?:
Self-Defense and Mistake in Criminal and Tort Law

Caroline Forell

In this Article, Professor Forell examines the criminal and tort mistake- as-to-self-defense doctrines. She uses the State v. Peairs criminal and Hattori v. Peairs tort mistaken self-defense cases to illustrate why application of the reasonable person standard to the same set of facts in two areas of law can lead to different outcomes. She also uses these cases to highlight how fundamentally different the perception of what is reasonable can be in different cultures. She then questions whether both criminal and tort law should continue to treat a reasonably mistaken belief that deadly force is necessary as justifiable self-defense. Based on the different purposes that tort and criminal law serve, Professor Forell explains why in self-defense cases criminal law should retain the reasonable mistake standard while tort law should move to a strict liability with comparative fault standard.

Defining the Reasonable Person in the Criminal Law:
Fighting the Lernaean Hydra

Michael Vitiello

When courts invoke the reasonable person as a means to assess culpability, they attribute to the standard some but not all of the objective and subjective characteristics of the accused. The Model Penal Code provides little guidance because the drafters intentionally punted on the issue, leaving line-drawing to the courts. This Article examines four classic self-defense cases and concludes that the courts have not drawn consistent lines regarding exactly which characteristics should be imparted to the reasonable person. The Article examines the most prominent areas of deviation and observes that fundamental inconsistencies within our societal notions of fault and punishment preclude universal rules. Some of our justifications for punishment, such as general deterrence, have no relation to intent or subjective culpability; whereas others justifications, such as fault-based punishment, require knowledge of wrongdoing. Accordingly, the Article concludes that the system we have—leaving these difficult decisions to the wisdom of the courts—may be the best we can hope for. The Article further shows that individual biases such as socio-economic status and political perspective shape our views of which characteristics of the accused should be considered when juries evaluate fault or guilt. However, because these biases are unprincipled and inconsistent, legislative reform is neither possible nor desirable.

Cultural Cognition and the Reasonable Person

Donald Braman

The reasonable person does a yeoman’s job. She lifts the burden of painful decision-making from the legislature’s shoulders; she helps keep legal standards current by adjusting legal outcomes to shifting norms; she shields the law from excessive professionalization; and she helps snuff out evasive loop-holing by clever and well-informed bad actors. We know these aspects of her well; but she has other features that have not been sufficiently described or articulated. The features I have in mind relate to the management of social dissensus, dissensus that is endemic to modern liberal democracies. In this Essay, I examine the way two phenomena, factualization and cultural cognition, constrain the way reliance on the reasonable person standard can manage such conflict. The law’s deference to the concept of reasonableness allows, I will argue, for a cultural hedge. It elides—at least partially—hotly contested normative disputes over racial anxiety, gender roles, physical violence, and other divisive issues, by shifting attention away from explicitly political valuations by the state and toward factual judgments. The balancing and subtle exchange of normative standards and factual findings is the crux of what makes the reasonable person standard so useful and so pervasive; and it is those very same features that make it—which is just another way of saying us—intolerant and unjust. As with many flesh- and-blood persons, then, the most attractive qualities of the reasonable person are bound up with those qualities that are also the most objectionable.

Reasonable Officers vs. Reasonable Lay Persons in the
Supreme Court’s Miranda and Fourth Amendment Cases

Susan F. Mandiberg

This Article examines the role of the reasonable person as it applies to the Supreme Court’s investigative criminal procedure jurisprudence. The Article first explores the Court’s concept and use of the reasonable person in the context of Miranda and the Fourth Amendment. The Article then highlights how the Court’s view of the reasonable police officer compares to its treatment of the reasonable lay person. Specifically, the Article notes how, in many circumstances, the Court affords the reasonable police officer more room for imperfection in her perceptions, knowledge, emotions, and behaviors; comparatively, the reasonable lay person is far more frequently expected to check her identity and experiences at the door. This Article concludes that the Court’s differing applications of the reasonable person allow it to balance interests covertly. However, more forthright treatment of the interests at stake would be healthier for the criminal justice system.

The Reasonable Believer:
Faith, Formalism, and Endorsement of Religion

Paula Abrams

The reasonable observer standard, used in Establishment Clause cases to determine whether government action endorses religion, marks a retreat by the Court from vigorous scrutiny of government purpose and effect. The standard, which examines whether a reasonable observer, familiar with First Amendment values and with the history and context of government action, perceives endorsement, embodies a shift toward formalism in Establishment Clause doctrine.

This Essay argues that the reasonable observer standard, which bypasses the role of faith in perception, undermines the protection of a core Establishment Clause value inclusion. The reasonable observer standard, representing the abstracted perspectives of a “community” of indeterminate faith, decreases the significance of the effect of government action, particularly on the nonadherent. Application of the standard thus tends to validate the perspective of the majority. The value of inclusion is best served by an inquiry into purpose and effect that considers the perceptions of both adherents and nonadherents.



A Decade of Reversal: The Ninth Circuit’s Record
in the Supreme Court Since October Term 2000

Diarmuid F. O’Scannlain

Based on a comprehensive review of a decade of cases, this Essay concludes that the Ninth Circuit’s record in the Supreme Court has been strikingly poor. Not only has the Ninth Circuit been reversed more often than its sister circuits, but it has also been a regular subject of unanimous and even summary reversals. This Essay further notes that many of the Supreme Court’s reversals of the Ninth Circuit have come in cases involving review of state-court decisions under the Antiterrorism and Effective Death Penalty Act.

Faithful Agent, Integrative, and Welfarist Interpretation

Thomas W. Merrill

We are in the midst of a series of lively debates about how to interpret enacted laws such as written constitutions and statutes. In constitutional law, there is a spirited clash between “originalists” and “nonoriginalists.” In the statutory arena, we have a three-way battle between “textualists,” “intentionalists,” and “pragmatists.” A common feature of these contending schools is an insistence on a single, correct approach to interpretation. In this respect, however, each of these rival theories deviates from the practice of interpretation. Real world interpreters—to a person—deploy a variety of interpretative methods when they seek to resolve the contested meaning of authoritative texts. The actual practice of interpretation is characterized by a plurality of approaches to interpretation, as opposed to adherence to a unitary ideal.

This Essay is an effort to sketch out, in a preliminary fashion, a typology of interpretative approaches, and to offer some suggestions about how to develop a conception of interpretation that synthesizes these different approaches. My hope is that this synthesis will provide a better understanding of how the interpretation of enacted texts proceeds in actual practice, as well as a guide that provides at least a broad overview of how it should proceed.



Halting the Sudden Descent Into Brutality: How Kennedy v. Louisiana Presents a More Restrained Death Penalty Jurisprudence

Sara F. Werboff

In Kennedy v. Louisiana, a divided United States Supreme Court drew a sharp line between crimes resulting in the death of another and crimes that do not. This line has never been drawn with such clear distinction. While the Kennedy Court confirms the constitutionality of the death penalty for aggravated first-degree murder, the opinion also cuts away at the underlying penological principles that justify it.

This decision is all the more striking because of the attention given in recent years to the role of emotion in capital sentencing and a brand of retributive justice that is based more upon the harm to the victim than on the culpability of the offender and, as such, is a departure from traditional retributive arguments. The Court addresses both the offender- centric and victim-centric aspects of retributive punishment, and rejects their application to the crime of child rape. The Kennedy decision focuses on many other aspects of the capital punishment debate—the death penalty’s continued effectiveness as a deterrent, the utility of the Court’s objective indicia analysis, and the Court’s own judgment on what extent, if any, emotions should factor in to the determination of proportionate punishment.

This Note argues that the “foundational jurisprudence” of the Supreme Court imposes limits on the justifications for the death penalty such that capital punishment is moving logically, if not doctrinally, towards its end.

28 U.S.C. § 2254(j): Freestanding Innocence as a Ground
for Habeas Relief: Time for Congress to Answer the Court’s Embarrassing Question

Caroline Livett

The Supreme Court has struggled with whether a showing of innocence should be an independent ground for habeas relief, or whether it should just be a way for a prisoner to have his other claims heard by a federal court. Currently, a sufficient showing of actual innocence serves as a gateway through some of the many procedural bars created by courts and the Anti-Terrorism and Effective Death Penalty Act. Through this gateway, a prisoner who produces sufficient evidence of innocence can have his habeas claims heard by a federal court despite his failure to follow all of the proper procedures. This Comment suggests that the Court will never definitively answer this question and that Congress should instead amend the federal habeas statutes to make freestanding innocence a ground for habeas relief.

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