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Legal standards invoke the ‘reasonable person’. Who is it?
The 'reasonable person' represents someone who is both common and good.
The reasonable person is not just the average person. That's easily seen. Sometimes, average people do unreasonable things. This insight has led theorists to propose the reasonable person as some 'ideal person', such as the virtuous person, the person who achieves the best consequences, or the person who acts in accord with moral duty.
But this is all too quick. The reasonable person isn't just the average person, but neither is it simply the ideal person. Instead, the 'reasonable person' represents someone who is both common and good.
The reasonable person is often associated with the law of accidents. To determine whether someone is legally responsible for causing an injury, courts apply a test of 'reasonable care'. Did the person causing the injury act with the care of a reasonable person? But reasonableness sets countless other legal standards: was a killing reasonably provoked? Would advertisements have misled a reasonable consumer? Was a contract offer accepted in a reasonable time? Was a criminal trial reasonably delayed? Reasonableness appears within the law of both the United States and the United Kingdom as well as that of Australia, Brazil, Canada, China, Egypt, Hong Kong, India, Russia and Singapore.
Theorists often remark that the reasonable person is not the average person. As the American legal philosopher Peter Westen puts it:
[R]easonableness is not an empirical or statistical measure of how average members of the public think, feel, or behave … Rather, reasonableness is a normative measure of ways in which it is right for persons to think, feel, or behave …
The fact that a reasonable person can't be an average person inspires 'ideal' theories of the reasonable person. The UK's Supreme Court elaborates this view, on which facts about average people are entirely irrelevant. Evidence about ordinary people is 'beside the point. The behaviour of the reasonable man is not established by the evidence of witness, but by the application of a legal standard by the court.' On this view, the reasonable person is some 'ideal' person. As the UK Supreme Court observed, it is 'the anthropomorphic conception of justice … the court itself'.
Of course, often 'the court itself' reflects the judgment of ordinary jurors. Perhaps surprisingly, the question of how ordinary people judge reasonableness is largely neglected. When people evaluate a standard of 'reasonable care', it might be that they're considering the common level of care or a good level of care. Or perhaps they're considering both.
To test this thought, I ran an experiment. I divided participants into three groups. One group provided their estimates of the reasonable number of different things, such as 'the reasonable number of weeks' delay before a criminal trial' and 'the reasonable loan interest rate'. Another group provided their estimates of the average number of each thing (eg, the 'average loan interest rate'), and the last provided their estimates of the ideal number of each thing (eg, the 'ideal loan interest rate'). Then, I compared the three groups' mean estimates for each example. For instance, is the 'reasonable loan interest rate' more like the average or the ideal interest rate?
A striking pattern emerged: across all these different examples, the estimates of 'reasonable' amounts tended to be intermediate between the 'average' and 'ideal' ones. For example, the reasonable number of weeks' delay before a criminal trial (10 weeks) fell between the judged average (17) and ideal (7). So too for the reasonable number of days to accept a contract offer, the reasonable rate of attorney's fees, and the reasonable loan interest rate.
These results suggest that our conception of what is reasonable is informed by thinking about both what people actually do and what people should do. Reasonableness is not a purely statistical notion, nor is it a purely prescriptive one; instead, it is a 'hybrid'. In this way, reasonableness is similar to other hybrid judgments, such as our judgment of what is 'normal'.
Here we should distinguish between two questions about reasonableness. First, how do ordinary people actually understand reasonableness? The experiment addresses this question. Reasonableness is a hybrid judgment, reflecting both what is common and what is good. Second, which conception of reasonableness should the law reflect?
While it is clear that reasonableness should not be a purely statistical standard, it is also rarely applied as a purely prescriptive one. Real legal standards don't elaborate the reasonable person as the 'virtuous person'. And jurors aren't actually instructed to evaluate reasonable care as whatever leads to the best consequences. To the contrary, when the law does elaborate reasonableness, it often suggests statistical considerations. For example, to challenge a misleading advertisement, plaintiffs must show that a 'reasonable consumer' would have been likely deceived or mislead. The standard is not meant to identify just what 'should' mislead an ideally scrupulous consumer. Instead, facts about when people are typically misled are crucial. Most courts consider statistical considerations, and some even call for a consumer survey or other evidence demonstrating that an advertisement actually tends to mislead consumers.
Historically, courts have referred not just to the 'reasonable person' but also to the 'ordinary person'. Often, courts seem to gesture towards some mixture of what is common and good. In the words of Justice Oliver Wendell Holmes in 1881, our standard of care should be set by the 'ideal average prudent man'.
Reasonableness captures an intuition about the relevance of both what is good and what is common. This produces a more nuanced standard. For example, the reasonable person does not have to do what an ideal person would do, but instead must meet some slightly less demanding standard. Or, the reasonable person is often close to the average person, but sometimes average people do bad things. More broadly, a standard that reflects both what is common and what is good makes the most sense of reasonableness standards across widely varied domains: from reasonable attorneys' fees and trial delays, to a reasonable provocation to kill, to reasonable consumers and judges.
Acknowledging the relevance of statistical considerations offers more progressive implications for another significant debate about reasonableness, known as the 'individualisation problem'. Which personal characteristics – age, gender, race, etc – should be included in reasonable-person analyses?
For example, in sexual harassment law, we might consider how a reasonable person would understand certain workplace remarks – for instance, apparently sexist remarks. But should we ask about how the 'reasonable person' or the 'reasonable woman' would understand those remarks? On popular philosophical theories, we would individualise to a reasonable-woman standard if it seems that women should understand certain workplace remarks differently from men. We might ask, for example, whether the 'virtuous woman' has a different understanding from the 'virtuous man' in this context.
However, if what is common is also relevant to determining what is reasonable, it is more sensible for statistical considerations to impact on our individualisation choice. We have a reason to individualise if women do (in fact) understand certain remarks differently from men. To be sure, this view doesn't imply that we must individualise whenever there are such differences. But it provides a broader range of considerations to capture the aims of reasonableness standards and individualisation.
As many have rightly noted, the reasonable person is not simply the average person. But contrary to influential theories, the reasonable person is not some ideal person, an 'anthropomorphic conception of justice'. People do not judge reasonableness that way. Nor does much of the law – for good reason. The reasonable person is a hybrid person, reflecting a mixture of what is common and what is good.
- How To Be More Reasonable - Big Think ›
- Richard Dawkins: Why “beyond a reasonable doubt” is a farce - Big ... ›
Evolution proves to be just about as ingenious as Nikola Tesla
- For the first time, scientists developed 3D scans of shark intestines to learn how they digest what they eat.
- The scans reveal an intestinal structure that looks awfully familiar — it looks like a Tesla valve.
- The structure may allow sharks to better survive long breaks between feasts.
Considering how much sharks are feared by humans, it is a bit of a surprise that scientists don't know much about the predators. For example, until recently, sharks were thought to be solitary creatures searching the seas for food on their own. Now it appears that some sharks are quite social.
Another mystery is how these prehistoric swimming and eating machines digest food. Although scientists have made 2D sketches of captured sharks' digestive systems based on dissections, there is a limit to what can be learned in this way. Professor Adam Summers at University of Washington's Friday Harbor Labs says:
"Intestines are so complex, with so many overlapping layers, that dissection destroys the context and connectivity of the tissue. It would be like trying to understand what was reported in a newspaper by taking scissors to a rolled-up copy. The story just won't hang together."
Summers is co-author of a new study that has produced the first 3D scans of a shark's intestines, which turns out to have a strange, corkscrew structure. What's even more bizarre is that it resembles the amazing one-way valve designed by inventor Nikola Tesla in 1920. The research is published in the journal Proceedings of the Royal Society B.
What a 3D model reveals
Video: Pacific spiny dogfish intestine youtu.be
According to the study's lead author Samantha Leigh, "It's high time that some modern technology was used to look at these really amazing spiral intestines of sharks. We developed a new method to digitally scan these tissues and now can look at the soft tissues in such great detail without having to slice into them."
"CT scanning is one of the only ways to understand the shape of shark intestines in three dimensions," adds Summers. The researchers scanned the intestines of nearly three dozen different shark species.
It is believed that sharks go for extended periods — days or even weeks — between big meals. The scans reveal that food passes slowly through the intestine, affording sharks' digestive system the time to fully extract its nutrient value. The researchers hypothesize that such a slow digestive process may also require less energy.
It could be that this slow digestion is more susceptible to back flow given that the momentum of digested food through the tract must be minimal. Perhaps that is why sharks evolved something so similar to a Tesla valve.
What is Tesla's valve doing there?
Above, a Tesla valve. Below, a shark intestine.Credit: Samantha Leigh / California State University, Domi
Tesla's "valvular conduit," or what the world now calls a "Tesla valve," is a one-way valve with no moving parts. Its brilliance is based in fluid dynamics and only now coming to be fully appreciated. Essentially, a series of teardrop-shaped loops arranged along the length of the valve allow water to flow easily in one direction but not in the other. Modern tests reveal that at low flow rates, water can travel through the valve either way, but at high flow rates, the design kicks in. According to mathematician Leif Ristroph:
"Crucially, this turn-on comes with the generation of turbulent flows in the reverse direction, which 'plug' the pipe with vortices and disrupting currents. Moreover, the turbulence appears at far lower flow rates than have ever previously been observed for pipes of more standard shapes — up to 20 times lower speed than conventional turbulence in a cylindrical pipe or tube. This shows the power it has to control flows, which could be used in many applications."
A deeper dive
Summers suggests the scans are just the beginning. "The vast majority of shark species, and the majority of their physiology, are completely unknown," says Summers, adding that "every single natural history observation, internal visualization, and anatomical investigation shows us things we could not have guessed at."
To this end, the researchers plan to use 3D printing to produce models through which they can observe the behavior of different substances passing through them — after all, sharks typically eat fish, invertebrates, mammals, and seagrass. They also plan to explore with engineers ways in which the shark intestine design could be used industrially, perhaps for the treatment of wastewater or for filtering microplastics.
It could fairly be said, though, that Nikola Tesla was 100 years ahead of them.
The non-contact technique could someday be used to lift much heavier objects — maybe even humans.
- Since the 1980s, researchers have been using sound waves to move matter through a technique called acoustic trapping.
- Acoustic trapping devices move bits of matter by emitting strategically designed sound waves, which interact in such a way that the matter becomes "trapped" in areas of particular velocity and pressure.
- Acoustic and optical trapping devices are already used in various fields, including medicine, nanotechnology, and biological research.
Sound can have powerful effects on matter. After all, sound strikes our world in waves — vibrations of air molecules that bounce off of, get absorbed by, or pass through matter around us. Sound waves from a trained opera singer can shatter a wine glass. From a jet, they can collapse a stone wall. But sound can also be harnessed for delicate interactions with matter.
Since the 1980s, researchers have been using sound to move matter through a phenomenon called acoustic trapping. The method is based on the fact that sound waves produce an acoustic radiation force.
"When an acoustic wave interacts with a particle, it exerts both an oscillatory force and a much smaller steady-state 'radiation' force," wrote the American Physical Society. "This latter force is the one used for trapping and manipulation. Radiation forces are generated by the scattering of a traveling sound wave, or by energy gradients within the sound field."
When tiny particles encounter this radiation, they tend to be drawn toward regions of certain pressure and velocity within the sound field. Researchers can exploit this tendency by engineering sound waves that "trap" — or suspend — tiny particles in the air. Devices that do this are often called "acoustic tweezers."
Building a better tweezer
A study recently published in the Japanese Journal of Applied Physics describes how researchers created a new type of acoustic tweezer that was able to lift a small polystyrene ball into the air.
Tweezers of Sound: Acoustic Manipulation off a Reflective Surface youtu.be
It is not the first example of a successful "acoustic tweezer" device, but the new method is likely the first to overcome a common problem in acoustic trapping: sound waves bouncing off reflective surfaces, which disrupts acoustic traps.
To minimize the problems of reflectivity, the team behind the recent study configured ultrasonic transducers such that the sound waves that they produce overlap in a strategic way that is able to lift a small bit of polystyrene from a reflective surface. By changing how the transducers emit sound waves, the team can move the acoustic trap through space, which moves the bit of matter.
Move, but don't touch
So far, the device is only able to move millimeter-sized pieces of matter with varying degrees of success. "When we move a particle, it sometimes scatters away," the team noted. Still, improved acoustic trapping and other no-contact lifting technologies — like optical tweezers, commonly used in medicine — could prove useful in many future applications, including cell separation, nanotechnologies, and biological research.
Could future acoustic-trapping devices lift large and heavy objects, maybe even humans? It seems possible. In 2018, researchers from the University of Bristol managed to acoustically trap particles whose diameters were larger than the sound wavelength, which was a breakthrough because it surpassed "the classical Rayleigh scattering limit that has previously restricted stable acoustic particle trapping," the researchers wrote in their study.
In other words, the technique — which involved suspending matter in tornado-like acoustic traps — showed that it is possible to scale up acoustic trapping.
"Acoustic tractor beams have huge potential in many applications," Bruce Drinkwater, co-author of the 2018 study, said in a statement. "I'm particularly excited by the idea of contactless production lines where delicate objects are assembled without touching them."
Australian parrots have worked out how to open trash bins, and the trick is spreading across Sydney.
Dumpster-diving trash parrots
In a study about these smart birds just published in Science, researchers define animal culture as "population-specific behaviors acquired via social learning from knowledgeable individuals."
Co-lead author of the study Barbara Klump of the Max Planck Institute of Animal Behavior in Konstanz, Germany says, "[C]ompared to humans, there are few known examples of animals learning from each other. Demonstrating that food scavenging behavior is not due to genetics is a challenge."
An opportunity presented itself in a video that co-author Richard Major of the Australian Museum shared with Klump and the other co-authors. In the video, a sulphur-crested cockatoo used its beak to pull up the handle of a closed garbage bin — using its foot as a wedge — and then walked back the lid sufficiently to flip it open, exposing the bin's edible contents.
Major has been studying Cacatua galerita for 20 years and says, "Like many Australian birds, sulphur-crested cockatoos are loud and aggressive." The study describes them as a "large-brained, long-lived, and highly social parrot." Says Major, "They are also incredibly smart, persistent, and have adapted brilliantly to living with humans."(Research regarding some of the ways in which wild animals adapt to the presence of humans has already produced some fascinating results and is ongoing.)
Clever cockie opens bin - 01 youtu.be
The researchers became curious about how widespread this behavior might be and saw a research opportunity. After all, says John Martin, a researcher at Taronga Conservation Society, "Australian garbage bins have a uniform design across the country, and sulphur-crested cockatoos are common across the entire east coast."
Martin continues, "In 2018, we launched an online survey in various areas across Sydney and Australia with questions such as, 'What area are you from, have you seen this behavior before, and if so, when?'"
Word Gets Around
Credit: magspace/Adobe Stock
Although the cockatoos' maneuver was reported in only three suburbs before 2018, by the end of 2019, people in 44 areas reported observing the behavior. Clearly, more and more cockatoos were learning how to successfully dumpster dive.
As further proof, says Klump, "We observed that the birds do not open the garbage bins in the same way, but rather used different opening techniques in different suburbs, suggesting that the behavior is learned by observing others." One individual bird in north Sydney invented its own method, and the scientists saw it grow in popularity throughout the local population.
To track individual birds, the researchers marked 500 cockatoos with small red dots. Subsequent observations revealed that not all cockatoos are bin-openers. Only about 10 percent of them are, and they are mostly males. The other cockatoos apparently restrict their education to a different lesson: hang around with a bin-opener, and you will get supper.
Thanks to the surveys, the researchers consider the entire project to be a valuable citizen-science experiment. "By studying this behavior with the help of local residents, we are uncovering the unique and complex cultures of their neighborhood birds."
The few seconds of nuclear explosion opening shots in Godzilla alone required more than 6.5 times the entire budget of the monster movie they ended up in.