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MakalikaNaholowaa-FirstPaper 8 - 24 Mar 2008 - Main.EbenMoglen
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-- MakalikaNaholowaa - 14 Feb 2008 | |
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- I don't understand the theme of the paper. Individual defendants are a trivial contribution to tort damages outside the area of medical malpractice, where special consideration of the defendant's stupidity doesn't seem likely no matter what juries are charged. Consideration of whether corporate actors have acted with reasonable care is assumed to be a decision "objective" in character and founded on social policy considerations, so much so that imposition of liability is largely analyzed by the existing chalk-dust school of economic lawyering as though it directly affected the standard of care taken, in an "internalizing the cost of accidents" model-building paradise. "No-fault" auto insurance and the adoption of "comparative negligence" over the last fifty years have essentially reduced the "reasonable man" to a shadow of his former significance. Why the worry?
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MakalikaNaholowaa-FirstPaper 5 - 05 Mar 2008 - Main.MakalikaNaholowaa
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< | I love the idea. You might want to read Kenneth Abraham's law review article The Trouble with Negligence which touches on some of these ideas. His focus is that the negligence standard - as you point out - results in very similar trials coming out differently and the effect that has on the legal system. His conclusion ends up being that negligence is the best standard we have at our disposal, but we should find ways to make it more precise. -- AdamCarlis? 12 February 2008 | | | -- MakalikaNaholowaa - 14 Feb 2008
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MakalikaNaholowaa-FirstPaper 4 - 14 Feb 2008 - Main.MakalikaNaholowaa
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The Unreasonableness of the "Reasonable Person" Standard in Personal Torts | |
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< | -- By MakalikaNaholowaa - 12 Feb 2008 | >
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The cost of personal tort actions in the US was $87.4B in 2006, with major categories of disputes including car accidents, asbestos injuries, and medical malpractice. These are areas where legal laymen, working people, seek aide and unbiased fair judgment from the courts to determine where the burden of these billions of dollars in costs falls in the wake of unexpected mishaps. The law’s tool used to provide this help is the “reasonable person” standard. As it is defined and used in courts today, this standard is misleadingly named and should be modified so that its actual effect matches its purported purpose.
An Oxymoron Standard: Subjective Objectivity and Unfair Reasonableness
To determine liability under the reasonable person standard, the law asks fact finders to decide if a person acted reasonably or negligently. The criterion for satisfying reasonableness varies from one situation to the next and is defined by "society," through a judge or jury. The fact finder can consider the unique circumstances surrounding each situation but the peculiarities of the individual, such as the person's age, knowledge, or intelligence cannot be taken into account. This is in an attempt to be objective, fair, unbiased, and create a uniform standard of care without regard to the idiosyncrasies of the defendant. | | | | |
<
< | The cost of personal tort actions in the US was $87.4B in 2006, with major categories of disputes being car accidents, asbestos injuries, and medical malpractice. These are areas where legal laymen – the average Joe’s – seek aide and unbiased fair judgment from the courts to determine where the burden of costs falls in the wake of unexpected mishaps. The law’s approach to providing this help is the use of the “reasonable person” standard. As it is defined and used in courts today, this standard is misleadingly named and should be modified so that its actual effect matches its purported purpose. | >
> | Although a determination of reasonableness in assigning liability makes sense, the present standard conflicts with its intended purpose of objectivity and could not possibly hope to result in the fair result it claims to seek. First, the standard cannot be objective because of the bias and prejudices each fact finder will bring when considering the defendant and his actions. Hence, the popular belief among litigators that by picking the jury the outcome of the case is decided. | | | | |
<
< | An Oxymoron Standard: Subjective Objectivity and Unfair Reasonableness
To determine liability under the reasonable person standard, the law asks fact finders to decide if person acted reasonably or negligently. Criteria for reasonableness made by "society," through a judge or jury. The fact finder however, is not allowed to take into account the individual's age, knowledge, or intelligence, (except in certain circumstances involving children and adult activities). This is in an attempt to be objective, fair, unbiased, and create a uniform standard of care without regard to the peculiarities of the defendant. | >
> | Second, the standard cannot be reasonable because there is no fairness in judging a person's conduct without considering individual traits of person. This is not to suggest that any peculiar characteristic should or would act as a defense against liability. However consideration of relevant facts about a person that could arguably have an effect on the reasonableness of their chosen actions are relevant and should be heard.
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< | However, although some standard is necessary, it’s apparent that this standard conflicts with its purported purpose of objectivity and could not possibly hope to result in the fair result it claims to seek. First, the standard cannot be objective because of the bias and prejudices each fact finder will bring when considering the actions. Hence, the popular belief amongst litigators that by picking the jury the outcome of the case is decided. Second, the standard can not be reasonable because there is no fairness in judging a person's conduct without considering individual traits of person, particularly intelligence. | >
> | Example: Practical Effect of Rule to Ignore Intelligence Factor
As an example, Holmes has explained, at present this standard leaves men who "fall below the level" in gift of intelligence to act at their peril. This does not benefit the social welfare as he suggests, because it does not motivate behavior changes needed to reduce damage causing events. It may ease our anxious hearts to know that the law will act in some ways similar to insurance, preventing plaintiffs from bearing the burden of damages caused by the dumb. However, a benefit to society would be if beyond satisfying an individual plaintiff, the standard generally discouraged damage causing behavior. | | | | |
<
< | Practical Effect: Social Welfare & The Common Man
As Holmes has explained, at present this standard leaves men who "fall below the level" in gift of intelligence to act at their peril. This does not benefit the social welfare as he suggests, because it does not motivate behavior changes needed to reduce damage causing events. It may ease our anxious hearts to know that the law will act in some ways similar to insurance, preventing us from paying for the damages caused by the dumb. However, we should not buy the lie that this discourages damage causing behavior - a man without “reasonable man” level of intelligence who consequently is unable to prevent damages is unlikely to concurrently be intelligent enough not to engage in the actions at all. The liability prevents no accidents and if anything discourages others from protecting themselves financially through insurance. Additionally, another effect of this standard is an allowance to judges and juries to exercise discretion and compensate those it wishes, justifying their decision by fairness defined ad hoc. | >
> | A man “below the level” of intelligence who consequently is unable to prevent damages is unlikely to concurrently be intelligent enough (or have the option due to necessity) not to engage in the actions at all. The imposition of liability on this man prevents no accidents and if anything discourages others from protecting themselves and their property financially through insurance. Therefore, the reasonable man standard today is nothing more than permission to a judge or jury to impose liability on those it wishes, justifying their decision by fairness defined ad hoc.
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< | The Reasonable "Reasonable Person" Standard
Fairness & Objectivity
To benefit general welfare as Holmes states is necessary, standard should be modified to consider subjective factors. True objectivity, absolute lack of bias or prejudice, is impossible with human fact finders. A more subjective approach is not completely unpredented. This has already been done to raise the bar of expected care in the case of professionals/experts. Same reasoning for this should apply to all cases. This will place liability on some where it wasn't before, and similarly will relieve liability in some cases. | >
> |
The Reasonable "Reasonable Person" Standard
To truly benefit social welfare, the standard should be modified to consider subjective factors. True objectivity, absolute lack of bias or prejudice, is impossible with human fact finders. If we acknowledge this, a change to take into account relevant subjective qualities of an individual as fairness demands, such as intelligence or age, is a better method for combating bias or prejudice than the current model. A subjective model allows courts to openly take into account the individual's qualities that matter while defining and policing the consideration of those characteristics that are absolutely inappropriate or irrelevant. We should embrace the concept of legal realists and recognize that whatever objectivity goals our system claims, the result is that a diverse group of defendants will not be judged identically. Our model should not ignore this permanent reality but address it and ensure that the system of judgment, although not objective, at least strives to be fair.
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< | Compensatory Damages
May change cases in which compensation is provided for damages - however not uniformly to the detriment of plaintiffs as discussed in fairness section. Many cases already force those who experience damages to bear the burden of them - allowances already made for other instances where it is deemed "unfair" to apply liability to other parties, such as case of physical disability of defendant. Changes to standard provides incentive to plaintiffs to insure against cost of damages, where stupidity can not be cured by liability under current standard. | >
> | Conclusion
How we assign over $80B in tort action costs is important. Although I am sensitive to the plaintiffs in these actions who have sustained losses, defendants too will have their lives heavily affected by financial liability. We should not assume that our less stringent approach to assigning liability in tort actions as compared to crimes is acceptable. Although the social and psychological harm caused by criminal penalties are distinguishable from tort liability, for the thousands of people who anxiously await to see if their unintentional conduct will destroy their financial futures, and therefore indirectly other areas of their lives, the standards that we use to decide their fates are of the utmost importance and assignment of liability is effectively a state applied punishment. We should accordingly craft our tools for determining liability with the uncompromising goal of achieving fairness before administering punishment, with a presumption in favor of the defendant. This requires a reformation of the reasonable person standard, not to change the question, was this conduct reasonable, but to assess all relevant factors in answering it. It’s absurd to suggest that this can be done without looking to his individual characteristics.
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< | Difficulty to Courts
Yes - forces courts to consider a factor difficult to prove and quantify. So what? Courts do that all the time. Not willing to sacrifice fairness because of burden on courts to consider the individual whose future it is deciding. | >
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MakalikaNaholowaa-FirstPaper 3 - 14 Feb 2008 - Main.MakalikaNaholowaa
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< | Unsophisticated Defendants & the Unreasonableness of "Reasonable Person" Standard | >
> | The Unreasonableness of the "Reasonable Person" Standard in Personal Torts | | | -- By MakalikaNaholowaa - 12 Feb 2008 | |
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< | /** Notes:
Black's Law Dictionary Definitions
reasonable, adj. 1. Fair, proper, or moderate under the circumstances < reasonable pay>.
(unreasonable must then be: unfair or improper under the circumstances)
reasonable person. 1. A hypothetical person used as a legal standard, esp. to determine whether someone acted with negligence; specif., a person who exercises the degree of attention, knowledge, intelligence, and judgment that society requires of its members for the protection of their own and of others' interests.
objective, 2. Without bias or prejudice; disinterested .
undue prejudice, 2. A preconceived judgment formed without a factual basis; a strong bias.
F. Harper, F. James, Jr. & O. Gray, 3 The Law of Torts 389-90 (2d ed.1986)
"...reasonable person is...capable of making mistakes and errors of judgment...but only to the extent that any such shortcoming embodies the normal standard of community behavior. ... Thus the standard represents the general level of moral judgment of the community, what it feels ought ordinarily to be done, and not necessarily what is ordinarily done, although in practice the two would very often come to teh same thing."
Holmes, The Common Law 108-10 (1881)
"When men live in a society, a certain average of conduct, a sacrifice of individual peculiarities going beyond a certain point, is necessary to the general welfare."
*/ | >
> | The cost of personal tort actions in the US was $87.4B in 2006, with major categories of disputes being car accidents, asbestos injuries, and medical malpractice. These are areas where legal laymen – the average Joe’s – seek aide and unbiased fair judgment from the courts to determine where the burden of costs falls in the wake of unexpected mishaps. The law’s approach to providing this help is the use of the “reasonable person” standard. As it is defined and used in courts today, this standard is misleadingly named and should be modified so that its actual effect matches its purported purpose. | | | An Oxymoron Standard: Subjective Objectivity and Unfair Reasonableness | |
<
< | To determine liability, must decide if person acted reasonably or negligently.
Reasonable person is judgment that "society," aka judge/jury makes.
Judge/Jury not allowed to take into account the individual's attention/knowledge/intelligence, in an attempt to be objective, and create a uniform standard of care without regard to the peculiarities of the defendant. | >
> | To determine liability under the reasonable person standard, the law asks fact finders to decide if person acted reasonably or negligently. Criteria for reasonableness made by "society," through a judge or jury. The fact finder however, is not allowed to take into account the individual's age, knowledge, or intelligence, (except in certain circumstances involving children and adult activities). This is in an attempt to be objective, fair, unbiased, and create a uniform standard of care without regard to the peculiarities of the defendant. | | | | |
<
< | First, standard can not be objective because of the bias and prejudices each fact finder will bring when considering the actions. (Hence, concept that picking the jury determines the outcome of the case.)
Second, standard can not be reasonable because there is no fairness in judging a person's conduct without considering individual traits of person, particularly intelligence. | >
> | However, although some standard is necessary, it’s apparent that this standard conflicts with its purported purpose of objectivity and could not possibly hope to result in the fair result it claims to seek. First, the standard cannot be objective because of the bias and prejudices each fact finder will bring when considering the actions. Hence, the popular belief amongst litigators that by picking the jury the outcome of the case is decided. Second, the standard can not be reasonable because there is no fairness in judging a person's conduct without considering individual traits of person, particularly intelligence. | | | Practical Effect: Social Welfare & The Common Man | |
<
< | Not concerned here with effect on sophisticated parties, such as corporations that can hire specialists to predict their liability and guide their conduct, focused instead on private citizens. | >
> | As Holmes has explained, at present this standard leaves men who "fall below the level" in gift of intelligence to act at their peril. This does not benefit the social welfare as he suggests, because it does not motivate behavior changes needed to reduce damage causing events. It may ease our anxious hearts to know that the law will act in some ways similar to insurance, preventing us from paying for the damages caused by the dumb. However, we should not buy the lie that this discourages damage causing behavior - a man without “reasonable man” level of intelligence who consequently is unable to prevent damages is unlikely to concurrently be intelligent enough not to engage in the actions at all. The liability prevents no accidents and if anything discourages others from protecting themselves financially through insurance. Additionally, another effect of this standard is an allowance to judges and juries to exercise discretion and compensate those it wishes, justifying their decision by fairness defined ad hoc. | | | | |
<
< | Not helpful standard for men who "fall below the level" in gift of intelligence AND standard does not benefit the social welfare by preventing damages - do we assume that man without average intelligence needed to prevent damages is alternatively intelligent enough not to engage in the actions at all? | >
> | The Reasonable "Reasonable Person" Standard
Fairness & Objectivity
To benefit general welfare as Holmes states is necessary, standard should be modified to consider subjective factors. True objectivity, absolute lack of bias or prejudice, is impossible with human fact finders. A more subjective approach is not completely unpredented. This has already been done to raise the bar of expected care in the case of professionals/experts. Same reasoning for this should apply to all cases. This will place liability on some where it wasn't before, and similarly will relieve liability in some cases. | | | | |
<
< | True effect: Standard provides judges and jury the discretion to compensate those it wishes for damages and justify their decision by fairness defined ad hoc | >
> | Compensatory Damages
May change cases in which compensation is provided for damages - however not uniformly to the detriment of plaintiffs as discussed in fairness section. Many cases already force those who experience damages to bear the burden of them - allowances already made for other instances where it is deemed "unfair" to apply liability to other parties, such as case of physical disability of defendant. Changes to standard provides incentive to plaintiffs to insure against cost of damages, where stupidity can not be cured by liability under current standard. | | | | |
>
> | Difficulty to Courts
Yes - forces courts to consider a factor difficult to prove and quantify. So what? Courts do that all the time. Not willing to sacrifice fairness because of burden on courts to consider the individual whose future it is deciding. | | | | |
<
< | The Reasonable "Reasonable Person" Standard
Fairness
To benefit general welfare as Holmes states is necessary, standard should be modified to consider evidence of intelligence.
This has already been done to raise the bar of expected care in the case of professionals/experts. Same reasoning for this should apply to all. This will place liability on some where it wasn't before, and similarly will relieve liability in some cases.
Objectivity
Is a fallacy anyways. As described above, impossible to take bias out of decisions made by people. Should instead be upfront with areas in which judgments are subjective and properly so.
Compensatory Damages
May change cases in which compensation is provided for damages - however not uniformly to the detriment of plaintiffs as discussed in fairness section.
Many cases already force those who experience damages to bear the burden of them - allowances already made for other instances where it is deemed "unfair" to apply liability to other parties, such as case of physical disability of defendant. Changes to standard provides incentive to plaintiffs to insure against cost of damages, where stupidity can not be cured by liability under current standard. | | | | |
<
< | Difficulty to Courts
Yes - forces courts to consider a factor difficult to prove and quantify. So what? Courts do that all the time. Not willing to sacrifice fairness because of burden on courts to consider the individual whose future it is deciding. | | | | |
>
> | I love the idea. You might want to read Kenneth Abraham's law review article The Trouble with Negligence which touches on some of these ideas. His focus is that the negligence standard - as you point out - results in very similar trials coming out differently and the effect that has on the legal system. His conclusion ends up being that negligence is the best standard we have at our disposal, but we should find ways to make it more precise. -- AdamCarlis? 12 February 2008 | | | | |
<
< |
- I love the idea. You might want to read Kenneth Abraham's law review article The Trouble with Negligence which touches on some of these ideas. His focus is that the negligence standard - as you point out - results in very similar trials coming out differently and the effect that has on the legal system. His conclusion ends up being that negligence is the best standard we have at our disposal, but we should find ways to make it more precise. -- AdamCarlis 12 February 2008
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> | -- MakalikaNaholowaa - 14 Feb 2008
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MakalikaNaholowaa-FirstPaper 2 - 12 Feb 2008 - Main.AdamCarlis
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| | | Difficulty to Courts
Yes - forces courts to consider a factor difficult to prove and quantify. So what? Courts do that all the time. Not willing to sacrifice fairness because of burden on courts to consider the individual whose future it is deciding. | |
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> |
- I love the idea. You might want to read Kenneth Abraham's law review article The Trouble with Negligence which touches on some of these ideas. His focus is that the negligence standard - as you point out - results in very similar trials coming out differently and the effect that has on the legal system. His conclusion ends up being that negligence is the best standard we have at our disposal, but we should find ways to make it more precise. -- AdamCarlis 12 February 2008
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MakalikaNaholowaa-FirstPaper 1 - 12 Feb 2008 - Main.MakalikaNaholowaa
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Unsophisticated Defendants & the Unreasonableness of "Reasonable Person" Standard
-- By MakalikaNaholowaa - 12 Feb 2008
/** Notes:
Black's Law Dictionary Definitions
reasonable, adj. 1. Fair, proper, or moderate under the circumstances < reasonable pay>.
(unreasonable must then be: unfair or improper under the circumstances)
reasonable person. 1. A hypothetical person used as a legal standard, esp. to determine whether someone acted with negligence; specif., a person who exercises the degree of attention, knowledge, intelligence, and judgment that society requires of its members for the protection of their own and of others' interests.
objective, 2. Without bias or prejudice; disinterested .
undue prejudice, 2. A preconceived judgment formed without a factual basis; a strong bias.
F. Harper, F. James, Jr. & O. Gray, 3 The Law of Torts 389-90 (2d ed.1986)
"...reasonable person is...capable of making mistakes and errors of judgment...but only to the extent that any such shortcoming embodies the normal standard of community behavior. ... Thus the standard represents the general level of moral judgment of the community, what it feels ought ordinarily to be done, and not necessarily what is ordinarily done, although in practice the two would very often come to teh same thing."
Holmes, The Common Law 108-10 (1881)
"When men live in a society, a certain average of conduct, a sacrifice of individual peculiarities going beyond a certain point, is necessary to the general welfare."
*/
An Oxymoron Standard: Subjective Objectivity and Unfair Reasonableness
To determine liability, must decide if person acted reasonably or negligently.
Reasonable person is judgment that "society," aka judge/jury makes.
Judge/Jury not allowed to take into account the individual's attention/knowledge/intelligence, in an attempt to be objective, and create a uniform standard of care without regard to the peculiarities of the defendant.
First, standard can not be objective because of the bias and prejudices each fact finder will bring when considering the actions. (Hence, concept that picking the jury determines the outcome of the case.)
Second, standard can not be reasonable because there is no fairness in judging a person's conduct without considering individual traits of person, particularly intelligence.
Practical Effect: Social Welfare & The Common Man
Not concerned here with effect on sophisticated parties, such as corporations that can hire specialists to predict their liability and guide their conduct, focused instead on private citizens.
Not helpful standard for men who "fall below the level" in gift of intelligence AND standard does not benefit the social welfare by preventing damages - do we assume that man without average intelligence needed to prevent damages is alternatively intelligent enough not to engage in the actions at all?
True effect: Standard provides judges and jury the discretion to compensate those it wishes for damages and justify their decision by fairness defined ad hoc
The Reasonable "Reasonable Person" Standard
Fairness
To benefit general welfare as Holmes states is necessary, standard should be modified to consider evidence of intelligence.
This has already been done to raise the bar of expected care in the case of professionals/experts. Same reasoning for this should apply to all. This will place liability on some where it wasn't before, and similarly will relieve liability in some cases.
Objectivity
Is a fallacy anyways. As described above, impossible to take bias out of decisions made by people. Should instead be upfront with areas in which judgments are subjective and properly so.
Compensatory Damages
May change cases in which compensation is provided for damages - however not uniformly to the detriment of plaintiffs as discussed in fairness section.
Many cases already force those who experience damages to bear the burden of them - allowances already made for other instances where it is deemed "unfair" to apply liability to other parties, such as case of physical disability of defendant. Changes to standard provides incentive to plaintiffs to insure against cost of damages, where stupidity can not be cured by liability under current standard.
Difficulty to Courts
Yes - forces courts to consider a factor difficult to prove and quantify. So what? Courts do that all the time. Not willing to sacrifice fairness because of burden on courts to consider the individual whose future it is deciding. |
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