Beyond Unreasonable

• Publication year: 2021

99 Nebraska L. Rev. 375. Beyond Unreasonable

Beyond Unreasonable

John Inazu ^[*]

ABSTRACT

The concept of "reasonableness" permeates the law: the "reasonable person" determines the outcome of torts and contracts disputes, the criminal burden of proof requires factfinders to reach conclusions "beyond a reasonable doubt," and claims of self-defense succeed or fail on reasonableness determinations. But as any first-year law student can attest, the line between reasonable and unreasonable is not always clear. Nor is that the only ambiguity. In the realm of the unreasonable, many of us intuit that some actions are not only unreasonable but beyond the pale we might say they are beyond unreasonable. Playing football, summiting Nanga Parbat, and attempting Russian roulette all risk serious injury or death, but most people do not view them the same. These distinctions raise vexing questions: What is it that makes us feel differently about these activities? Mere unfamiliarity? Moral condemnation? Relative utility? Or something else altogether? Moreover, who exactly is the "we" forming these judgments?

This Article explores the vague lines that separate our sense of reasonable, unreasonable, and beyond unreasonable-the reasonableness lines. Part II examines the general characteristics of these lines. Part III explores their significance in law, and Part IV considers their application in four discrete areas of law: tax policy for medical expenses, criminal punishment, speech restrictions, and tort liability for inherently dangerous sports. The Article ends by summarizing the implications of the reasonableness lines for our culture and for ourselves.

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TABLE OF CONTENTS

I. Introduction .......................................... 376

II. The Reasonableness Lines ............................. 378

III. The Reasonableness Lines in Law ..................... 387

IV. Applications .......................................... 396
A. Unreasonableness in Tax Policy ................... 396
B. Unreasonableness in Criminal Punishment ........ 401
C. Unreasonableness in Speech Restrictions .......... 405
D. Unreasonableness in Contact Sports ............... 409

V. Conclusion ............................................ 417

I. INTRODUCTION

The concept of "reasonableness" permeates the law: the "reasonable person" determines the outcome of torts and contracts disputes, ^[1] the criminal burden of proof requires factfinders to reach conclusions "beyond a reasonable doubt," ^[2] and claims of self-defense succeed or fail on reasonableness determinations. ^[3] But as any first-year law student can attest, the line between reasonable and unreasonable is not always clear. Nor is that the only ambiguity. ^[4] In the realm of the unreasonable, many of us intuit that some actions are not only unreasonable but beyond the pale.

Consider Russian roulette. The odds of dying while playing Russian roulette are around 17%, ^[5] about the same as the odds of dying while summiting Nanga Parbat in the Himalayas. ^[6] Most of us find both risks uncomfortably high. Yet on closer reflection, the two risks

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feel different to many of us. Few people want to climb high in the Himalayas, but those who do are not typically castigated for their choices. ^[7] Most of us do not extend the same charitable understanding to the person playing Russian roulette. We might find both of these activities inherently dangerous, but we do not think about them in the same way. Even if both are in a sense unreasonable, pointing a loaded gun at your head and pulling the trigger seems different than climbing a dangerous mountain. We might think of Russian roulette as beyond unreasonable, in contrast to the merely unreasonable sport of extreme mountain climbing.

Why do many of us find extreme mountain climbing unreasonable but view as reasonable other recreational activities which also have a nontrivial risk of death or serious injury, like football? What exactly is "it" that makes us feel differently about these activities? Is it unfamiliarity? Moral condemnation? Relative utility? Or something else altogether? And who exactly is the "we" who forms these judgments? ^[8]

This Article explores the vague lines that separate our sense of reasonable, unreasonable, and beyond unreasonable, or what I call "the reasonableness lines." Part II examines the general characteristics of the reasonableness lines. Part III explores their significance in law, and Part IV considers their application in four areas of law: tax policy for medical expenses, criminal punishment, speech restrictions, and tort liability for inherently dangerous sports. The Article ends by summarizing three implications of the reasonableness lines. First, they are socially constructed lines that illustrate the permeability between law, politics, and culture. Second, they ask individual citizens to identify with a larger community that pushes wholly subjective beliefs and experiences into less subjective frames. Third, their communal framing reveals something of our social ordering and cautions against rigid distinctions between what we find reasonable, unreasonable, and beyond unreasonable.

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II. THE REASONABLENESS LINES

The reasonableness lines are social and moral judgments. They are social because they can only be defined by a community of people. To put this differently, my subjective beliefs cannot by themselves determine reasonableness. It might turn out that my beliefs align with the sense of reasonable of the community in which I find myself. Or I may have beliefs that are outliers relative to that community. But I will not know the reasonableness of my own subjective beliefs apart from the community that judges those beliefs.

These social judgments about reasonableness sometimes change. A hundred years ago, it would have been beyond unreasonable to suggest that two men should be allowed to marry each other. Today, same-sex marriage is permissible, and it is also considered reasonable by a majority of Americans. ^[9] We could make similar observations (using different time spans) about arguments for cohabitation, marijuana use, and many gender norms. Conversely, a hundred years ago, arguments supporting Jim Crow would have been reasonable to many white Americans. Today, these arguments are beyond unreasonable to almost everyone. ^[10] It is entirely possible, and probably likely, that our descendants a hundred years from now will have other examples of the shifting lines of reasonableness. As Jeffrey Stout has argued, the context that justifies our current beliefs could change: "It is perfectly conceivable that we will someday be justified in deviating significantly from the beliefs we are currently justified in believing." ^[11]

At the same time, not all of our views seem open to change. For example, arguments for ritual child sacrifice have always been beyond unreasonable in the United States an example of what Stout calls an "underlying social agreement." ^[12] This limitation on ritual child sacri-

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fice also illustrates why no society is ever fully pluralistic: every society sets limits on its acceptable differences. ^[13]

The reasonableness lines are moral judgments that differ from objective assessments. We can illustrate the difference between reasonableness and objectivity by considering the "reasonable person" in law. This standard prevents an individual from relying upon a wholly subjective sense of harm, fear, duty, or care; the reasonableness of my actions is not simply whatever I think is reasonable, it is also a social judgment that incorporates the views of other people. For example, I will not succeed in a defense involving the use of deadly force simply because I actually feared for my life. My subjective fear is a necessary but not sufficient element of self-defense: I must have actually been in fear, and my fear also must have been reasonable.

This less subjective assessment is not an objective assessment. Consider the "reasonable man" standard that preceded today's "reasonable person." Susan Estrich observes that the earlier standard's neglect of gender differences required a woman who was violently sexually assaulted to resist her assailant in every way possible:

In a very real sense, the "reasonable" woman under [this] view . . . is not a woman at all. [This] version of a reasonable person is one who does not scare easily, one who does not feel vulnerability, one who is not passive, one who fights back, not cries. The reasonable woman, it seems, is not a schoolboy "sissy." She is a real man. ^[14]

Today's reasonable person improves upon the reasonable man standard but continues to elide important differences pertaining to culture, physical stature, and other characteristics. ^[15] For example, in at least some circumstances, as when an assailant is running toward someone with a non-deadly weapon, the reasonableness of the response of a frail old woman will be judged differently than that of a strong young man. These differences are intuitive to...