Why We Love “Reasonableness” Tests, And Why They Suck

The reasonable person. The reasonable cop. The reasonable whoever. These are the sorts of rules that courts love to embrace when confronted with hard, maybe even insurmountable, problems and they can’t develop a principled test that would actually inform people what they can do without getting prosecuted.

And you love these rules. Well, not so much lawyers, but the rest of you. Because “reasonable” sounds so, well, reasonable. And as Seth Godin asks, who isn’t reasonable?

No one says, “I’m going to be unfair to this person today, brutal in fact, even though they don’t deserve it or it’s not helpful.”

Few people say, “I know that this person signed the contract and did what they promised, but I’m going to rip them off, just because I can.”

And it’s quite rare to have someone say, “I’m a selfish narcissist, and everyone should revolve around me merely because I said so.”

Like “common sense,” it’s a lie we tell ourselves and which we believe with all our heart.

In fact, all of us have a narrative. It’s the story we tell ourselves about how we got here, what we’re building, what our urgencies are.

And within that narrative, we act in a way that seems reasonable.

To be clear, the narrative isn’t true. It’s merely our version, our self-talk about what’s going on. It’s the excuses, perceptions and history we’ve woven together to get through the world. It’s our grievances and our perception of privilege, our grudges and our loves.

No one is unreasonable. Or to be more accurate, no one thinks that they are being unreasonable.

Most people, if they believed they were being unreasonable, would change their view. While some may be Machiavellian about it, most want to be reasonable. Most people believe they are reasonable. And most people believe that people who fail to appreciate their reasonableness are unreasonable.

While Seth Godin’s description addresses how people feel about their views from a marketing perspective, the use of reasonableness in the legal paradigm shares many of the same problems.

When used as a test, it fails miserably.  There are usually many reasonable views of the same facts and circumstances, but in law, one has to ultimately prevail so that a decision can be reached.  After all, an opinion ending in, “who knows?” wouldn’t be particularly satisfying.

The problem, then, is that by holding one view reasonable to the preclusion of all others, judges are saying that the contrary view is unreasonable.  After all, if it wasn’t, then the view they adopt wouldn’t win, and the case would end up a draw under a reasonableness test.

This creates some problematic conclusions. Say a panel of three circuit judges splits 2-1 on a decision based upon a reasonableness test. Is the majority calling the dissenting judge an “unreasonable” jurist? Well, yes, that’s exactly what they’re doing. They will never say so, because it would offend their colleague, but that’s what it means to be the dissenter to what the majority concludes to be reasonable. That’s just how logic works.

Where the debate over what is reasonable is existential, it doesn’t really matter all that much. It happens millions of times a day on social media, where people who get no vote argue vociferously with each other until Godwin’s Law is invoked.  People get crazy angry over these sorts of arguments, all because they believe in their own narrative.

Rarely does anyone persuade anyone else to change their mind.

It’s certainly possible to change someone’s narrative, but it takes time and patience and leverage. Teaching a new narrative is hard work, essential work, but something that is difficult to do at scale.

In the short run, our ability to treat different people differently means that we can seek out people who have a narrative that causes them to engage with us in reasonable ways. When we open the door for these folks, we’re far more likely to create the impact that we seek. No one thinks they’re unreasonable, but you certainly don’t have to work with the people who are.

Godin suggests that new narratives can be taught with time and patience. In marketing, perhaps, as it tends not to go toward any view that people hold dear.  Rather, we are far more likely to seek out and surround ourselves with people who agree with us because they are so reasonable. Who wants to hang out with unreasonable people?

And unlike the marketing perspective, in law, we do have to work with people whom we view as unreasonable.  It’s usually judges, who are unreasonable all the time because they don’t rule the way we want them to. After all, did we not present a sound, maybe even brilliant, argument? Was our argument not exceptionally well supported by law, by precedent, by reason and logic? Do they have no heart and soul?

And, if you’re someone who finds that your narrative isn’t helping you make the impact you seek, best to look hard at your narrative, the way you justify your unreasonableness, not the world outside.

When you’re trying to sell something, reasonableness is decided by the buyer, not the seller. No matter how reasonable the seller believes he may be, if no one is buying, the seller loses the battle of reasonableness.

As lawyers, we sell our reasonable to the judge, who is unlikely to share our narrative. Those 742 likes on Facebook aren’t going to help you much in court. You know what they call the lawyer with the most brilliantly reasonable argument that fails to persuade a judge? The loser.

It may not be because your argument was unreasonable (though it could be if you’re so blinded by your own narrative that you fail to grasp that yours isn’t the only reasonable view), but because it wasn’t what the decision maker decided was reasonable. It doesn’t make you unreasonable in reality, but it does in law. No matter how certain you are that your argument was the most reasonable, it won’t save you (or your client) from a narrative that a judge finds more reasonable, or at least more consistent with the outcome the judge seeks to achieve.

And this is what’s wrong with reasonableness tests. So appealing to people who fail to appreciate how malleable they are, how uninformative they are, how worthless they are when an ultimate decision must be made. And if you disagree, that’s only because you are totally unreasonable.

19 thoughts on “Why We Love “Reasonableness” Tests, And Why They Suck

  1. wild bill

    The reasonable man test is an easy way for the state to move the trainwreck of a docket along without too much digging or thinking.

  2. Jim Tyre

    When I was a 1L back in The Stone Ages, I thought I had come up with the bestest money making scheme ever. So many things in the law depend on the reasonable person. (It was the reasonable man then, but I change with the times.) All I had to do was get myself certified as a reasonable person. My expert testimony would be greatly in demand, and whatever I might choose to charge would be reasonable definitionally. Many thought I was certifiable but sadly, no one would certify me.

    1. wild bill

      Good answer. And gooday to you, sir. Wish we had thought of it first. There are no reasonable people. It’s a will-o-the-wisp, a Myth of Sisyphus. Unreasoable folks and criminals running rampant in the streets and halls of justice. Where is J. Edgar when we need him? Roy Cohn and Tricky Dick?

  3. Eliot J CLingman

    Much field research shows animals such as cats, dogs, gorillas to be more rational than humans. So if we treat rational as a synonym for reasonable, all we need do is pose the choice to the critter in non verbal terms (for example presenting bowl of chocolate pudding and bowl of vanilla pudding) , and videotape its behavior. Thus us documented the most reasonable choice!

    What could possibly go wrong?

  4. Ben

    You present a false dichotomy. A reasonable man wouldn’t, or a reasonable man would, but sometimes a reasonable man might.

    Reasonable men can disagree. Reasonable jurists can disagree about what reasonable men might do, without being unreasonable.

    We can’t do without reasonable man tests because the world is too complicated to craft hard rules that cater to every unforeseen circumstance.

    1. SHG Post author

      I suggest you may have missed the point, that many conflicting positions can all be reasonable, but when it comes to the reasonableness test, they can’t all win, so one is found/held reasonable and the other ends up the dissent, unreasonable by definition.

      And if the world is “too complicated to craft hard rules,” then we need to not have those rules. Rules that provide no notice of what they prohibit in advance of committing the conduct are unconstitutional. Sometimes the answer is that we can’t use law to regulate every aspect of human behavior or punish every bad outcome, much as we may want to create our perfect world.

      1. Ben

        Since there is never certainty, I don’t know what qualitatively different problem you think is introduced by the grey area between “you’d have to be insane to think that” and “you’d have to be *really* insane to think that”. It’s just another question of fact, like reasonable doubt.

        Life has grey areas, reasonableness writes the grey into law and lets the jury/decision-maker decide, subject to the limit that “no reasonable decision-maker could conclude that a reasonable man might think…”.

        >>And if the world is “too complicated to craft hard rules,” then we need to not have those rules.

        The “Reasonable Man” is used to provide for exculpatory circumstances which are not foreseen when drafting, c.f. reasonable force. Would you abolish that too?

        >> Rules that provide no notice of what they prohibit in advance of committing the conduct are unconstitutional

        But what counts as sufficient notice? Noel Erinjeri has a post up on Fault Lines… Did Michelle Carter have advance notice that her conduct was prohibited?

        I think she had reasonable notice.

        1. SHG Post author

          I didn’t think the concepts in this post were so nuanced as to be this difficult for lay readers to understand. Sadly, it appears I’m wrong. Maybe this will give you a better idea of how reasonablenss works.

      2. PVanderwaart

        Perhaps, of the many conflicting positions, some are more reasonable that others. One is picked as most reasonable, and the others are less reasonable. If made by reasonable persons, none is unreasonable.

        1. SHG Post author

          Majority: The opposite result, which the dissent would have us hold, is similarly reasonable. We just think this reasonable is more reasonable, so we reject the alternative and go with our preferred reasonable, even though the rule is that if it’s reasonable, then it can’t be criminal.

          There could be a “more reasonable person” rule, but that isn’t the rule now, and wouldn’t work if it was because any reasonableness should meet the reasonable person test. The only way the dissent’s position, even if it’s not the most reasonable, does not prevail is for it to be unreasonable. See the problem?

  5. mb

    I never shared your peculiar dislike of the reasonableness test, but then, based on how I hear practicing lawyers talk about reasonableness (which is to say, whatever makes it sound more like their side should win) I suppose that the formulaic Learned Hand crap rarely shows up in jury deliberations. I’m not saying I’m wrong, just that reasonable minds may differ.

    1. SHG Post author

      Try kicking a PAT at a moving (or invisible) goal post and tell me how that works for you. That’s what we’re looking at. We want bright line tests so we know what we’re aiming at.

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