The Last Reasonable Person

Much of the law cheaps out by making a test of language and conduct subject to the “reasonable person,” a theoretically objective standard that tests a claim against what some mythical “reasonable person” would think. its purpose being that the law does not require a person to conduct themselves in such a way as no claim of harm is based on the most the sensibilities of the most “delicate flower.”

There’s always someone who will claim harm, offense, trauma or victimhood over something that most people would shrug off. Call me a dope and I won’t sue. Give me a little shove on the subway and I won’t run to the cops. When I get a papercut, I don’t call Turkewitz to sue. There is an old legal maxim, de minimis non curat lex, the law doesn’t bother with trifles. Reasonable people don’t lose their heads over every petty slight.

The objective reasonable person, of course, doesn’t exist, and never did. Indeed, the test is something of a trick question, as the berth of reasonableness has always been wide, accommodating the fact that we all prefer to believe we’re reasonable even though others inexplicably disagree, while believing themselves to be reasonable as well. Rather, the test is what is unreasonable, what is too far off-the-charts to provide an acceptable perspective that others will agree is reasonable.

The problem is that we’ve reached a point in social perspective where the most idiosyncratic, most sensitive, most personal feelings are elevated to sacred cow status. Both social embrace, and the laws that follow, have enshrined desires, from the most trivial to the most peculiar, into law. From the right of employees to style their hair as they please to the pronouns others use when they’re not in the same city are now not only reasonable, but regulated.

More importantly, dispute the worthiness of an individual’s right to their beliefs, their truth, their style, their choices, and a swarm of gnats will come down on you as the next iteration of Satan. How does anyone, anyone at all, discriminate against someone just because they are so easily hurt that a butterfly flapping its wings in China causes a tsunami on the campus of Harvard.

This question was raised as academics first sought to distinguish the “specialized” circumstances of individuals that simultaneously entitled them to invoke reasonableness while denying others, outside their specialized sphere, to challenge whether they were reasonable.

Lawprof Katrina Kuh raises an interesting question over at PrawfsBlawg.  While Kuh’s concern is purely sexist, she inadvertently lobs a pitch in our direction.

The reasonable person standard (previously, the reasonable man standard) indexes liability to whether an individual acted in the manner of a reasonable and prudent person under the same or similar circumstances.  In making this determination, fact finders may consider an actor’s physical disability and any special knowledge or skill possessed by the actor (i.e., use the conduct of a reasonable person with the physical disability or knowledge/skill of the actor as the standard), but may not consider emotional or mental disability (including, for example, stupidity).

If knowledge or skill of the actor, or gender as Kuh would have it, matters, why not stupid?  While no one has ever met the reasonable man (and I refuse to participate in any discussion of the reasonable woman), once we start to make accommodations for the specialized situations of some, why not everyone?  The answer, obviously, is that there will be no rule once this happens.

That was from 2010, when fashion designers were relentlessly tinkering with hemlines, even though no one was buying what they were selling. Or at least that’s what we thought at the time.

In the reimagination of what’s reasonable today, we would each be entitled to a world in which our sensibilities, based on our individual circumstances, knowledge, education, upbringing, status and, most importantly, sensibilities, were reasonable. After all, we’re all different in our own intersectional way, right? Are my feelings any less valid than yours?

From this perspective, it’s essentially impossible to be unreasonable. If everyone is a reasonable person in their own special way, then there can be no parameters to the objectively reasonable person by which we’re to determine where the line is drawn beyond which our conduct must not go. And at the same time, as the propriety of conduct is judged by the individualized measure of personal sensitivity of whomever is claiming to be the victim of our words or deeds, we are all guilty if the “victim” says we are. After all, if the victim isn’t unreasonable, no matter how fragile or sensitive he may be, then there is no denying the victim’s claim of harm and damage. They are entitled to their feelings and we’ve violated it if they say so.

For the most part, this issue gets hashed out in the discrete details of a particular issue, whether it’s the efficacy of wearing masks or whether a world without racism is itself racist. We argue what we believe to be the reasonable answer based upon what we believe to be the facts. And we are intolerant of those whose perspectives differ, even though their disagreement isn’t so much unreasonable as just different.

Is there an objective reasonable person anymore when every person, no matter how sensitive, delicate or passionate, is entitled to get their way? If not, much the law fails, as it relies on this standard to distinguish right from wrong, lawful from unlawful conduct. There is essentially no conduct that won’t offend someone anymore, and to doubt this is to offend as well by “erasing” their feelings, if not their existence.

In 2016, at 19 Green Bag 2d 223, law professors Daniel Solove and Woodrow Hartzog wrote “The Ultimate Unifying Approach to Complying With All Laws and Regulations.” Would they have been able to do so today without a trigger warning?

There was once a maxim that “reasonable minds may differ.” Is there any tolerance left for differing views or are we now subject to the whims of the most delicate flower? If someone feels it, can they ever be unreasonable? And when your otherwise “reasonable” actions affect someone in an unpleasant way, will reasonableness protect you from condemnation? If everyone is entitled to a world where their feelings and sensibilities are inviolate, then there is no objective reasonable person standard by which to defend yourself. We all lose.