Thursday, June 23, 2022
John Inazu (Washington Univ.), Beyond Unreasonable, 99 Neb. L. Rev. 375 (2020):
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 reach conclusions “beyond a reasonable doubt,” and 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 is not 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 II examines the general characteristics of these lines. Part III explores their significance in law, and Part IV 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.