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.
Kevin Tobia
This article was originally published at Aeon and has been republished under Creative Commons. Read the original article.
What is FOSTA-SESTA?
SESTA (Stop Enabling Sex Traffickers Act) and FOSTA (Allow States and Victims to Fight Online Sex Trafficking Act) were signed into law by former President Trump in 2018. There was some argument that this law may be unconstitutional as it could potentially violate the first amendment. A criminal defense lawyer explains this law in-depth in this video.
What did FOSTA-SESTA aim to accomplish?
The idea behind the law was simple: make it more difficult for online sex traffickers to find victims. FOSTA-SESTA started as two separate bills that were both created with a singular goal: curb online sex trafficking. Targeting websites like Backpage and Craigslist, where sex workers would often arrange meetings with their clientele, FOSTA-SESTA aimed to stop the illegal sex-trafficking activity being conducted online. While the aim of FOSTA-SESTA was to keep people safer, these laws have garnered international speculation and have become quite controversial.
According to BusinessWire, many people are in support of this bill, including the National Center for Missing and Exploited Children and World Without Exploitation (WorldWE).
"With the growth of the Internet, human trafficking that once happened mainly on street corners has largely shifted online. According to the National Center for Missing & Exploited Children, 73 percent of the 10,000 child sex trafficking reports it receives from the public each year involve ads on the website Backpage.com."
As soon as this bill was signed into law, websites where sex workers often vetted and arranged meetings with their clients could now be held liable for the actions of the millions of people that used their sites. This meant websites could be prosecuted if they engaged in "the promotion or facilitation of prostitution" or "facilitate traffickers in advertising the sale of unlawful sex acts with sex trafficking victims."
The bill's effects were felt around the world — from Canadians being unhappy with the impact of this American bill to U.K. politicians considering the implementation of similar laws in the future.
Heather Jarvis, the program coordinator of the Safe Harbour Outreach Project (SHOP), which supports sex workers in the St. John's area, explained to CBC in an interview that the American bill is impacting everyone, everywhere: "When laws impact the internet — the internet is often borderless — it often expands across different countries. So although these are laws in the United States, what we've seen is they've been shutting down websites in Canada and other countries as well."
Jarvis suggests in her interview that instead of doing what they aimed to do with the bill and improving the safety of victims of sex trafficking or sexual exploitation, the website shutdowns are actually making sex workers less safe.
While one U.K. publication refers to FOSTA-SESTA as "well-intentioned but ultimately deeply-flawed laws," it also mentions that politicians in the United Kingdom are hoping to pursue similar laws in the near future.
Has FOSTA-SESTA done more harm than good?
Is this really going to help, or is this bill simply pushing sex work and sex-related content further into the dark?
Credit: Евгений Вершинин on Adobe Stock
While supporters of this bill have framed FOSTA-SESTA as a vital tool that could prevent sex trafficking and allow sex trafficking survivors to sue those websites for facilitating their victimization, many other people are strictly against the bill and hope it will be reversed.
One of the biggest problems many people have with this bill is that it forces sex workers into an even more dangerous situation, which is quite the opposite of what the bill had intended to do.
According to Globe and Mail, there has been an upswing in pimps sending sex workers messages that promise work - which puts sex workers on the losing end of a skewed power-dynamic, when before they could attempt to safely arrange their own meetings online.
How dangerous was online sex work before FOSTA-SESTA?
The University of Leicester Department of Criminology conducted an online survey that focused on the relative safety of internet-based sex work compared with outdoor sex work. According to the results, 91.6 percent of participants had not experienced a burglary in the past 5 years, 84.4 percent had not experienced physical assault in the same period, and only 5 percent had experienced physical assault in the last 12 months.
PivotLegal expresses concerns about this: "It is resoundingly clear, both from personal testimony and data, that attacking online sex work is an assault on the health and safety of people in the real world. In a darkly ironic twist, SESTA/FOSTA, legislation aimed at protecting victims of and preventing human trafficking for the purposes of sexual exploitation, will do the exact opposite."
Websites are also being hypervigilant (and censoring more content than needed) because they can't possibly police every single user's activity on their platform.
Passing this bill meant any website (not just the ones that are commonly used by sex traffickers) could be held liable for their user's posts. Naturally, this saw a general "tightening of the belt" when it came to what was allowed on various platforms. In late 2018, shortly after the FOSTA-SESTA bill was passed, companies like Facebook slowly began to alter their terms and conditions to protect themselves.
Facebook notably added sections that express prohibited certain sexual content and messages:
"Content that includes an implicit invitation for sexual intercourse, which can be described as naming a sexual act and other suggestive elements including (but not limited to):
– vague suggestive statements such as: 'looking forward to an enjoyable evening'
– sexual use of language […]
– content (self-made, digital or existing) that possibly portrays explicit sexual acts or a suggestively positioned person/suggestively positioned persons."
Additionally, sections like this were also added, prohibiting things that could allude to sexual activity:
"Content in which other acts committed by adults are requested or offered, such as:
– commercial pornography
– partners that share fetishes or sexual interests"
Facebook wasn't the only website to crack down on their policies — the Craigslist classifieds section being removed and Reddit banned quite a large number of sex-worker related subreddits.
Is FOSTA-SESTA really helpful?
This is the question many people are facing with the FOSTA-SESTA acts being passed just a few years ago. Is this really going to help, or is this bill simply pushing sex work and sex-related content further into the dark? Opinions seem to be split down the middle on this — what do you think?
Watching coverage of protests in American streets, many of us have been shocked to witness what modern policing often looks like. Even putting aside the reason for many of these demonstrations in the first place—allegations of police brutality—what we see onscreen marching towards protestors is chilling. We witness police garbed in helmets, flak jackets, tactical dress, and carrying assault rifles, backed by weaponry designed for the battlefield, not the nation's thoroughfares.
The primary source of this equipment and clothing is the Federal government's 1033 program, which has been described as "Uncle Sam's Goodwill Store." This surplus military equipment (SME)—or "reutilized" gear as the Department of Defense (DOD) calls it—is granted, for free, to local law enforcement agencies, or "LEAs." WIRED estimates the Pentagon has gifted to local police some $7.3 billion worth of military equipment and clothing.
Concerned about the manner in which this militarization has affected policing, and following 2014's Ferguson protests, President Obama curtailed the program. The Trump administration removed these limits in 2017, claiming research had proved militarization reduces crime.
A new study from Louisiana State University (LSU) revisits that research, finding it incomplete and inconsistent. The researchers, led by LSU political scientist Anna Gunderson, collected their own more comprehensive and accurate data and concluded that militarizing local police does not actually reduce crime.
A wide lack of support
Credit: Andrew Caballero-Reynolds/Getty Images
It's no wonder that more than half of the American public no longer trusts the police. It's hard not to get the impression that for many police departments, the mission has changed from one of support for its communities to an attempt to intimidate and dominate its members.
Studies back this up. Police whose departments use military equipment are more often violent with community members and are more likely to kill them. Neither is this a small problem at the margins of policing: Over 1,000 people are killed by police annually.
In spite of the Trump administration's faith in the soundness of the 1033 program, others from across the political spectrum disagree. On the right, the Charles Koch Foundation asserts, "This erosion of public confidence in law enforcement and low support for militarization impedes law enforcement's ability to effectively secure public safety." From the left, the American Civil Liberties Union says, "We advocate for a return to a less dangerous, more collaborative style of policing. We should not be able to mistake our officers for soldiers."
Sketchy records
The Pentagon
Credit: JeremyAdobe Stock
Gunderson explains to LSU Media Center that, "scholars rely on accurate data to track and analyze the true effect of police militarization on crime. Policymakers also need accurate data to base their decisions upon. However, to-date, we do not have reliable data on SME transfers to local police and sheriffs through the federal government."
The research cited by the Trump administration was a study done by the American Economic Association based on SME data collected through a 2014 Freedom of Information Act request. Having a look at that data themselves, along with other FOIA 2014 data released by National Public Radio and newer data from 2018, the LSU researchers found that things didn't quite line up. Where FOIA suggests certain counties received SME, NPR's data showed no such transfer. Similarly, NPR reported departments receiving items such as weapons, grants that were not reflected in the 2018 data as expected.
"When we looked at the data and ran the replications, nothing looked like the results being cited by the Trump Administration," Gunderson recalls. "We spent a year trying to diagnose the problem."
Instead
The LSU researchers' conclusion was the the previously released SME data from the DOD was too inconsistent to produce reliable insights. They conducted their own analysis, aligning newer data with country-level LEA data, to derive a cohesive, accurate picture that allowed them to more definitively assess who got SME transfers and who didn't, and what effect it had on local crime statistics.
They found no indication that SME transfers led to a reduction in crime. The study concludes, "we find no evidence that federal distributions of SME to local LEAs across the United States reduce crime rates, neither violent nor nonviolent crime rates, in the jurisdictions that receive it."
Gunderson adds:
"This is a cautionary tale about the importance of oversight. The most important thing for policymakers and the public to know is that you can't justify giving surplus military equipment to police departments on the grounds it will lead to a reduction in crime. There is no evidence for that. You can't claim this program is important because it reduces crime."
What's more says, the report, "because of serious data problems and debatable methodological choices in prior studies, the empirical foundations on which social scientists, along with policymakers and the public, stand when making causal claims about the effects of the transfers of SME may be no firmer than quicksand."
Happy is a 47-year-old elephant who lives at the Bronx Zoo. Although the zoo had claimed in 2006 that it would be inhumane to exhibit such a social creature by itself, that pretty much describes Happy's current living conditions. The zoo now has one other elephant, Patty, but the two are kept separate over concerns that they don't get along. Happy spends most of her time in a cage that's about twice her body length, a far cry from her natural free-roaming habitat. The New York Times has previously written about Happy, and a change.org petition on Happy's behalf has over a million signatures.
The Nonhuman Rights Project (NhRP) has taken the zoo to court to have Happy released to live out the remainder of her life at The Elephant Sanctuary in Tennessee.
Happy arrived at the Bronx Zoo in 1977 with another elephant, Grumpy, who died in 2002. The elephants were part of a group of calves purchased for $800 and imported to the U.S. by the now-defunct Lion Country Safari, and named after Snow White's seven dwarves.
The Bronx Zoo—which is operated by the Wildlife Conservation Society (WCS)—opposes Happy's relocation. The organization asserts it "takes excellent care of Happy and will continue to do so, along with all animals here at the zoo. Her well-being is assured by our dedicated staff and all the expertise they bring in providing excellent care for her for more than 40 years."
On Thursday, November 19, 2020, the case will wend its way to New York State's First Department courtroom for oral arguments.
The work of the NhRP
A captive Asian elephant in Germany
Credit: Cloudtail the Snow Leopard/Flickr CC BY-NC-ND 2.0
We've written previously about the NhRP and its legal work aimed at securing personhood rights for non-humans, including two chimpanzees named Tommy and Kiko. The premise of the chimps' case was that they deserved protection from unlawful detention or imprisonment afforded under the legal concept of habeas corpus.
In law, there are only two things an entity can be: It can be either a thing or a person. It's obvious that intelligent, feeling creatures—and we're learning that more and more animals are exactly this—are not just things. However, getting courts to recognize them as persons is a heavy lift. As NhRP attorney Steven M. Wise tells Big Think, "the word 'person' came loaded with emotional baggage," with people mistaking the legal term "person" as being synonymous with the common use of the word "human."
In the end, the NhRP wasn't able to secure the release of Tommy and Kiko to a chimp sanctuary, but nonetheless managed to move animal rights forward with a remarkable opinion by associate Eugene M. Fahey of the New York Court of Appeals. While ruling against the NhRP over legal technicalities, Fahey delivered a groundbreaking dissent about which Wise says, "I think in the years to come, that Judge Fahey's concurrence [with NhRP] is going to be seen as the breakthrough in the United States towards gaining legal rights for non-human animals."
"While it may be arguable that a chimpanzee is not a 'person,'" Fahey wrote, "there is no doubt that it is not merely a thing." He added, "The reliance on a paradigm that determines entitlement to a court decision based on whether the party is considered a 'person' or relegated to the category of a 'thing' amounts to a refusal to confront a manifest injustice."
An easier case to make
Fahey did disagree with the NhRP on one point—aside from the legal issue on which the court ruled against them—and Wise says that after thinking about Fahey's perspective for the last few years, he now agrees. The NhRP is pursuing a very different approach for Happy than they did for Tommy and Kiko.
Fahey noted that with laws already on the books such as New York State's pet trust statute that make Happy a beneficiary of legal protections, she already has rights. Following logically from that is that if she has rights, the judge pointed out, she is not a thing and therefore qualifies as a legal person entitled to habeas corpus protection.
In the past, the NhRP argued that Tommy and Kiko qualified as legal persons who would then deserve rights. Fahey's insight has given the NhRP a far easier case to make. It no longer requires a court to invent some new status that's neither thing nor person to deliver justice to animals.
Happy's case moves forward
Asian elephant in the wild
Credit: Deanna DeShea/Unsplash
The proceedings on Happy's behalf have been going on since October 2018. The case began in New York's Orleans County, some 300 miles northwest of the Bronx Zoo. It was a district identified by the NhRP as perhaps holding a sympathetic view of personhood based on a case in which it granted a used-car dealership that status as a victim of a break-in. Wise recalls a sentence in the judgement that caught NhRP's attention: "It's common knowledge that personhood can and sometimes does attach to non-human entities like corporations or animals."
So far, it's been a long series of push-and-pull maneuvers between the NhRP and WCS. While WCS has generally been winning judgements, often on proceeding-related grounds, NhRP has scored some landmark victories.
In December 2018, the New York Supreme Court, Orleans County heard oral arguments regarding elephants' rights to habeas corpus based on Fahey's guidance. This was the first-ever such hearing on behalf of an elephant, and only the second for animals altogether. (The first was for two of the NhRP's early clients, chimps Hercules and Leo.) The hearing resulted in the case being transferred to the Bronx as per the WCS's wishes.
In Bronx Supreme Court Justice Alison Y. Tuitt, the NhRP found a sympathetic judge who heard an extraordinary 13 hours of arguments during which the NhRP presented testimony supporting their case from five elephant experts. Wise notes that the WCS, which employs many of its own elephant experts, curiously chose not to present any testimony from them supporting the position that Happy should remain where she is.
After hearing arguments, Tuitt described Happy, the first elephant ever to have passed the mirror self-awareness test, as "an extraordinary animal with complex cognitive abilities, an intelligent being with advanced analytical abilities akin to human beings." She also concluded that Happy "is more than just a legal thing, or property. She is an intelligent, autonomous being who should be treated with respect and dignity, and who may be entitled to liberty."
While WCS presented detailed descriptions of Happy's current care, health, and status, Tuitt notes in her opinion that "none of the Bronx Zoo's affiants present any evidence that they have studied any wild elephant, or know about any elephant's basic social, emotional, behavioral, liberty, and autonomy needs, whether captive or wild."
Tuitt rejected WCS position that Happy's current living situation at the Bronx Zoo is the best option available for the elephant, stating that "the arguments advanced by the NhRP are extremely persuasive for transferring Happy from her solitary, lonely one-acre exhibit at the Bronx Zoo to an elephant sanctuary."
Expressing regret, Tuitt felt bound by appellate court decisions regarding NhRP's chimp cases and ruled against releasing Happy. Fahey has written elsewhere that he now believes those earlier cases in which he participated were wrongly decided.
The NhRP is appealing on November 19 to the First Judicial Department, which Wise says is not bound, as are other courts, by previous rulings. He feels optimistic that with Tuitt's supportive decision in hand, he won't need to spend so much precious court time relitigating the basics of the NhRP's case. He also notes that should the WCS once again prevail, the next stop would be the Court of Appeals, where Fahey is one of seven justices who will hear Happy's case.
