Reasonableness in and out of negligence law.

• Author: Zipursky, Benjamin C.
• Position: The Constraint of Legal Doctrine

INTRODUCTION I. VARIANTS IN THE LANGUAGE OF REASONABLENESS A Reasonable and Unreasonable B. Optimizing or Range-Delineating C. Adjectival Versus Adverbial Modification II. FAMILIES OF "REASONABLENESS" USE A The Antonym of "Excessive" B. Passable Exercises of Judgment or Interpretative Capacity (and Deference) C. Reasonableness and Justifiability (Epistemic) D. Two Kinds of Practical Reasonableness E. Secondary Qualities in the Law F. Mixed and Other Categories III. JURISPRUDENTIAL OBSERVATIONS A. Standards and Vagueness B. Two Kinds of Delegation of Judgement Power C. The Reasonable Person as a Decision-Guiding Device D. The Normative Versus Descriptive Confusion IV. REASONABLENESS IN NEGLIGENCE LAW: THE POSNERIAN ACCOUNT V. THE MODERATION-BASED ACCOUNT OF REASONABLENESS IN NEGLIGENCE LAW VI. REASONABLENESS IN NEGLIGENCE LAW: A CRITIQUE OF THE MODERATION ACCOUNT A. The Reasonable Person and the Reasonably Prudent Person B. Performance and Precautions C. Returning to Unreasonable Risks VII. THE HAND FORMULA REVISITED VIII. THE MODERATION-AND-MUTUALITY CONCEPTION OF REASONABLENESS IN NEGLIGENCE LAW A. The Mutuality Conception B. The Overdemandingness of the Hand Formula Conception of the Duty of Care C. Reasonableness and Contractualism IX. CONCLUDING REFLECTIONS ON REASONABLENESS, REALISM, AND DOCTRINALISM INTRODUCTION

The law's use of the terms "reasonable" and "unreasonable" are legion and notorious. Indeed, the law's seemingly carefree attitude in throwing around these terms has often served Legal Realists and their descendants well in their effort to depict legal language as simply a shell through which actors exercise the widest sort of discretion to select their favored outcomes or policies. Conversely, ambitious agendas from philosophers and economists have often found that "reasonableness" provides a readily available anchor in the positive law for their normative theories. Work by moral and political philosophers devoted to analyzing "the reasonable" and work by economists, decision theorists, and game theorists on rationality understandably turn the law's use of "reasonableness" into a magnet for legal theory. In these respects, "reasonableness" might be seen as the third "r" of legal theory. Like "rights" and "responsibility," "reasonableness" is beloved by legal theorists and equally beloved by the skeptics who spend their time skewering those theorists.

However tempting it is to join one side or the other in these jurisprudential wars, it is useful to step back and do some legwork on the place of the reasonable within the law, and more specifically, on the variety of places that "reasonable" and its cognates are found in the law. Hohfeld and many since him have found what I might call "varietal analysis" useful in exploring the concept of rights, (1) as did Hart within the concept of responsibility. (2) If exploration of the varieties of reasonableness in the law were to provide even a fraction of the illumination generated by their work on the other two "r"s, the enterprise will have been worthwhile. (3)

There is, of course, an irony in my suggested sequence of research. The word "reasonable" is a paradigmatic example of a standard in the law, and its meaning is, if nothing else, vague. And--as intimated above--that is why it is so tempting to reach to legal, philosophical, and economic theories to flesh out some content for "the reasonable" when content is needed. (4) It thus seems odd--backwards, even--to turn to legal doctrine to try to illuminate reasonableness.

My reasons for looking at doctrine relate to a suspicion that legal scholars with a theoretical proclivity have too quickly conflated three quite different attributes of the language of reasonableness in the law: the attribute of vagueness, the attribute of meaninglessness, and the attribute of ambiguity. For a term or a phrase to fall short of clarity because of vagueness is quite different from having no meaning at all, and both are different from having multiple meanings--being ambiguous. A failure to distinguish among these features of meaning can distort our view of the relevant domain of law. Indeed, the failure to recognize the multiple ambiguity of "reasonableness" can lead to a distorted view of its vagueness and unclarity in the law.

Candor requires me to reveal that I too come with a special interest in, and theoretical agenda for, one particular occurrence of a "reasonableness" cognate in the law: reasonableness in negligence law. Most tort theory debates about reasonableness in negligence law focus on the question of whether the Hand Formula conception of unreasonable risk--deriving from earlier work by Henry Terry (5)--should be understood in a utilitarian or economically oriented approach, on the one hand, or in a deontic manner, on the other. Terry started with the idea that being negligent was a matter of deviating from a reasonable person standard, and then essentially analyzed being a reasonable person as a matter of not taking unreasonable risks. Once one moves on to the question of which risks are unreasonable, one is essentially making a judgment about which risks should be taken and which should not be taken: "unreasonable" is a vessel into which such a judgment can be poured. American negligence law--which gives the question of breach in a negligence case to the jury--can be understood as delegating the normative decision about which risks are justifiable to the jury. Common law negligence doctrine in the United States, the United Kingdom, and former Commonwealth countries, contains much guidance on how best to think about this normative question. Instrumentalists and utilitarians tend to offer one sort of interpretation of this body of doctrine, (6) while rights-based theorists tend to offer a rather different account. (7)

I belong to a handful of tort scholars who believe that the terms of the debate are themselves unacceptable, (8) because the breach or negligence standard of the negligence tort is not really about ascertaining a reasonable level of risk. On this view, the Hand formula grossly misrepresents what "negligence" really is. Indeed, Henry Terry and the Restatements of Torts (the most recent of which analyzes breach through the foreseeability of harm, magnitude of harm, and burden of precautions (9)) were all making a big mistake at an analytical level that leads to a variety of different distortions in tort doctrine and tort theory.

In the majority of cases, an actor is negligent when he or she fails to use ordinary care, and ordinary care is that which a reasonably prudent person, or a reasonably careful person, would take under like circumstances. The concept of "ordinary care" carries content that is not dependent on the notion of "reasonableness," understood as an objectively justifiable risk level. The level of risk is not the key question. The phrases "reasonable person" and "unreasonable risk" are not best analyzed as shells into which risk-benefit analyses should be poured. I began spelling out this view in the article Sleight of Hand, (10) published several years ago and briefly summarized in Part V, infra. This article is an indirect continuation of that project. Negligence law is so deeply associated with reasonableness that a critique like my own requires that I delve more deeply into reasonableness throughout the law, before returning to examine negligence law.

Parts I, II, and III explore, respectively, syntactical, semantic, and conceptual aspects of reasonableness cognates throughout various parts of the law. Part IV turns to torts, setting forth a leading position on reasonableness in tort law--roughly speaking, a Hand Formula view as understood in Posnerian terms. Part V provides a concise critique of the Hand Formula account and tentatively puts forth a competing account, called the "moderation-based account of reasonableness." In Parts VI, VII, and VIII, I develop, dialectically, a critique of the moderation-based account, a renewed version of the Hand Formula account, and a "modernation-and-mutuality" conception of reasonableness. The article concludes in Part IX by reflecting on the place of reasonableness within the debate between realism and doctrinalism that forms the core of this Symposium.

1. Variants in the Language of Reasonableness

   The range of uses of "reasonableness" in law is so great that a list is not an efficient way to describe and demarcate it. The modes of employing "reasonable" and its cognates differ in many respects, which combine in innumerable ways. This Part thus begins simply by considering the various cognates of "reasonable" that appear in different parts of the law, and some dimensions of difference in their meanings. Part II begins to distinguish between different families of reasonableness uses in the law. (11)

   1. Reasonable and Unreasonable

      The most obvious cognate of the "reasonable" in the law is the "unreasonable." While negligence law and basic criminal law typically refer affirmatively to the "reasonably prudent person," the "reasonable person," "reasonable care," or the "reasonable consumer," Fourth Amendment law and antitrust law do the opposite. The Fourth Amendment's text does not require that searches and seizures be "reasonable," but instead forbids "unreasonable" searches and seizures. (12) Similarly, as the United States Supreme Court has interpreted the Sherman Act, it prohibits "unreasonable" restraints on trade. (13) Cognates of both "reasonable" and "unreasonable" can be found throughout the law.

      It might seem obvious that unreasonableness is simply the opposite of reasonableness, and that it makes no difference whether a legal standard is expressed in terms of a requirement of reasonable conduct or a requirement to refrain from unreasonable conduct. It is by no means clear whether this is true. Forbidding of the unreasonable may, despite its negativity, be more permissive than requiring the reasonable. Rather than...