« Notable Prison Policy Initiative update on pandemic changes to prison and jail populations | Main | Making sure not to look past or become numb to persistently ugly pandemic realities in incarceration nations »

August 8, 2020

"Beyond Unreasonable"

The title of this post is the title of this notable new paper authored by John Inazu and now posted to SSRN. Here is its abstract:

The concept of “reasonableness” permeates the law: the “reasonable person” determines the outcome of torts and contracts disputes, the criminal burden of proof requires factfinders to conclude “beyond a reasonable doubt;” claims of self-defense succeed or fail on reasonableness determinations.  But as any first-year law student can attest, the line between reasonable and unreasonable isn’t always clear.  Nor is that the only ambiguity. In the realm of the unreasonable, many of us intuit that some actions are not only unreasonable but beyond the pale — we might say they are beyond unreasonable.  Playing football, summiting Nanga Parbat, and attempting Russian roulette all risk serious injury or death, but most people do not view them the same.  These distinctions raise vexing questions: what is it that makes us feel differently about these activities?  Mere unfamiliarity?  Moral condemnation?  Relative utility?  Or something else altogether?  Moreover, who exactly is the “we” forming these judgments?

This Article explores the vague lines that separate our sense of reasonable, unreasonable, and beyond unreasonable — the reasonableness lines.  Part I examines the general characteristics of these lines.  Part II explores their significance in law, and Part III considers their application in four discrete areas of law: tax policy for medical expenses, criminal punishment, speech restrictions, and tort liability for inherently dangerous sports.  The Article ends by summarizing the implications of the reasonableness lines for our culture and for ourselves.

August 8, 2020 at 11:43 AM | Permalink

Comments

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB