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Reasonableness on the Clapham Omnibus: Exploring the Outcome-Sensitive Folk Concept of Reasonable


Kneer, Markus (2022). Reasonableness on the Clapham Omnibus: Exploring the Outcome-Sensitive Folk Concept of Reasonable. In: Bystranowski, Piotr; Janik, Bartosz; Próchnicki, Maciej. Judicial decision-making : integrating empirical and theoretical perspectives. Cham: Springer, 25-48.

Abstract

The reasonable person standard is of great importance to US criminal and tort law. According to the law, whether or not an agent acted reasonably does not depend on features of the outcome which are not under her control. Mock juror attributions of reasonableness, however, are shown to be outcome-dependent. A series of experiments reveals that this outcome-dependence does not constitute a bias, since the very folk concept of reasonableness is outcome-sensitive. Consequently, the law makes a mistaken assumption as to what kind of concept of reasonableness lay jurors will apply in court. This conceptual misalignment, it is argued, could lead to serious injustice in US trials.

This paper presents a series of studies (total N=579) which demonstrate that folk judgments concerning the reasonableness of decisions and actions depend strongly on whether they engender positive or negative consequences. A particular decision is deemed more reasonable in retrospect when it produces beneficial consequences than when it produces harmful consequences, even if the situation in which the decision was taken and the epistemic circumstances of the agent are held fixed across conditions. This finding is worrisome for the law, where the reasonable person standard plays a prominent role. The legal concept of reasonableness is outcome-insensitive: whether the defendant acted in a reasonable fashion or not depends exclusively on her context of action, no matter how things play out. Folk judgments of reasonableness are thus inconsistent with the legal concept of reasonableness. Problematically, in common law jurisdictions, the decision whether a defendant’s behavior was reasonable or not is frequently (though not necessarily) delegated to a lay jury.

Abstract

The reasonable person standard is of great importance to US criminal and tort law. According to the law, whether or not an agent acted reasonably does not depend on features of the outcome which are not under her control. Mock juror attributions of reasonableness, however, are shown to be outcome-dependent. A series of experiments reveals that this outcome-dependence does not constitute a bias, since the very folk concept of reasonableness is outcome-sensitive. Consequently, the law makes a mistaken assumption as to what kind of concept of reasonableness lay jurors will apply in court. This conceptual misalignment, it is argued, could lead to serious injustice in US trials.

This paper presents a series of studies (total N=579) which demonstrate that folk judgments concerning the reasonableness of decisions and actions depend strongly on whether they engender positive or negative consequences. A particular decision is deemed more reasonable in retrospect when it produces beneficial consequences than when it produces harmful consequences, even if the situation in which the decision was taken and the epistemic circumstances of the agent are held fixed across conditions. This finding is worrisome for the law, where the reasonable person standard plays a prominent role. The legal concept of reasonableness is outcome-insensitive: whether the defendant acted in a reasonable fashion or not depends exclusively on her context of action, no matter how things play out. Folk judgments of reasonableness are thus inconsistent with the legal concept of reasonableness. Problematically, in common law jurisdictions, the decision whether a defendant’s behavior was reasonable or not is frequently (though not necessarily) delegated to a lay jury.

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Additional indexing

Item Type:Book Section, refereed, original work
Communities & Collections:01 Faculty of Theology and the Study of Religion > Center for Ethics
06 Faculty of Arts > Institute of Philosophy
Dewey Decimal Classification:170 Ethics
Uncontrolled Keywords:Negligence, Reasonableness, Mens rea, Hindsight bias, Outcome effect
Language:English
Date:2022
Deposited On:17 Jan 2022 07:40
Last Modified:17 Jun 2024 03:39
Publisher:Springer
Series Name:Economic analysis of law in European legal scholarship
Number:14
ISSN:2512-1294
ISBN:978-3-031-11743-5
Additional Information:This is a post-peer-review, pre-copyedit version of an article published in Judicial decision-making : integrating empirical and theoretical perspectives in Economic analysis of law in European legal scholarship. The final authenticated version is available online at: https://doi.org/10.1007/978-3-031-11744-2_3
OA Status:Green
Publisher DOI:https://doi.org/10.1007/978-3-031-11744-2_3
Project Information:
  • : FunderSNSF
  • : Grant IDPZ00P1_179912
  • : Project TitleReading Guilty Minds