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The adoption of director’s duty of care in the 2005 revision of the PRC Company Law made significant progress in holding directors accountable for their wrongdoings. However, certain defects still exist, most importantly the lack of a specific standard for the duty of care in the legislation. Therefore, this article adopts an empirical and comparative approach in reviewing Chinese duty of care cases in comparison with major jurisdictions such as the United Kingdom and the United States. The 86 sample cases hand-collected from the ten-year period from 2011 to 2020 reveal that the number of duty of care litigation in China is still far lower than other types of company disputes, despite an increasing trend. This article finds a divergence in judicial practice concerning at least two different standards of the duty of care, with an array of non-uniform factors considered in the judgments. Accordingly, this article adopts a selective approach concerning best practices in major jurisdictions globally and proposes several solutions specifically catered to China’s legal and commercial context, including the unified adoption of the objective reasonable person standard, the suggestion that a wholesale transplant of the business judgment rule is undesirable while some of its elements could be borrowed for reference, the shifting of evidentiary burden to the defendants and the promotion of director’s liability insurance. By incorporating these changes, China’s company law stands to benefit from striking an appropriate balance between director’s authority to manage the companies and shareholder’s right to hold them accountable.

Tort law’s intersection with the rights of members of minority and historically oppressed groups is complicated, and its status as an instrument for the advancement of rights tenuous. Tort law embraces a “reasonable person” analysis, with tort liability is circumscribed by the attitudes, impressions, beliefs, knowledge, and understanding of the fictional average member of “the community,” and reaches for majoritarian sensibilities to regulate human interaction. Tort law is also shaped by the common law process, and can be slow to evolve to changes in social structures, patterns of human relations, and the needs of members of growing minority groups that have not achieved dominant status. On the other hand, because of the evolving content of reasonableness and the common law process, tort law is equipped to change as society changes. This paper considers how tort law responded to a distinctive and powerful exogenous shock – the Supreme Court’s landmark 2015 decision prohibiting the restriction of same sex marriage, Obergefell v. Hodges.

Legal tests invoking the viewpoint of a so-called reasonable person play an important role in many domains of the law, ranging from intellectual property to free speech. In such cases, a central question involves determining how a hypothetical individual with “an ordinary or average level of care, prudence, or knowledge” would respond. Despite the seemingly commonsensical nature of these tests, their judicial application can be controversial due to concerns about subjectivity and vulnerability to explicit or implicit biases. Here we take a step toward addressing these concerns by using neuroscientific tools to observe, without the use of self-report, the nature of mental representations central to a set of disputes invoking the reasonable person. Specifically, using an fMRI-based measure, repetition suppression, to generate a neural index of subjective visual similarity, we sought to inform the application of the reasonable person test to a class of intellectual property law that evaluates whether a trademark is so similar to another as to generate consumer confusion. We show that, by leveraging well-established neuroscientific knowledge about visual processing, it is possible to construct a parsimonious neural index of subjective similarity using signals from object-sensitive brain regions identified a priori. Moreover, this neural index, aggregated across multiple participants, is sufficiently precise to detect instances of experimenter-induced bias in behavioral reports. Together these findings shed light on the potential evidentiary value of neuroscientific data to inform questions involving the reasonable person and suggest a novel domain for the use of neuroscience in law.

There are certain areas of the law where even Justice Scalia has acknowledged that we cannot be governed by rules alone. Justice Scalia identified torts as such an area. I think Justice Kennedy correctly identified federalism as another. The absence of formal rules in an area of law does not need to mean there cannot be principled guidance given, it just means that the guidance needs to be given through a more flexible discursive practice. We have a sense of what the law of torts demands of us even if the reasonable person does not provide us with clear rules. In considering how to resolve thorny questions involving federalism, Justice Kennedy was drawn to the notion of achieving a balance between federal and state power. And, in at least one important area of federalism jurisprudence (the proportionality test from Boerne), Kennedy did successfully establish a rule of proportionality. Nevertheless, most of Kennedy’s efforts at importing a type of proportionality analysis failed and, even where such an analysis was formally adopted, it has been applied in a wooden manner more reminiscent of a rule. In this chapter, I consider these failures. I argue that Kennedy was correct to believe that a vibrant federalism jurisprudence requires a proportionality analysis and, further, that such an analysis can be done in a principled manner that provides substantial guidance to judges, policymakers and citizens. Because I believe the underlying the conception was sound, I diagnose the problem as relating to its execution. The successful application of a standard like proportionality requires sustained thoughtful public engagement through time. Alas, most of the other justices, and even Justice Kennedy himself, did not participate in such a discourse, even in the cases trying to apply Boerne’s proportionality test. This failure was not necessary. The constitutional courts of other nations, and even our own, do apply proportionality type tests satisfactorily and one day our courts may do so as to federalism, following on the hints, if not the practice, of Justice Kennedy.

A human body grows and changes but remains the same body. The same is true of other organisms, even though some transform dramatically. Metamorphosis is a poetic and mythological conceit of identity, change, and continuity. It applies just as well to the law of contract and helps us understand the power of the contract law canon and the conventional understanding of the legal history of contract. The ideas probably hold true for private law generally, but the focus is on Anglo-American contract law with a foray into Scots private law. Three aspects of mythology and metamorphosis are highlighted. First, the conventional understanding of legal history shapes what the law is. In the story of legal development, we see an implicit notion of progress — with missteps and complications of plot, but with the conviction that eventually the law, like any myth, will work itself out in a way that is right — not necessarily a way that is good but instead a way that fits with society. And in any system based on case law, this conventional understanding of legal development shapes the law itself. Second, the force of this conventional understanding is scarcely lessened by demonstrable falsity. Classic books, lectures, and cases illustrate the idea that historical inaccuracy is an insignificant check on the power of myth. Finally, myths consist not only of explanatory plotlines; they also draw on characters and settings that reflect and inspire the society they serve. Legal myths are no different. Understanding legal mythology requires an attentive ear and a sharp eye for the characters, as well as the storytellers. The reasonable man is not the same as the reasonable person (or is he — a metamorphosis?), and in any case is not the same as the bonus paterfamilias or bon pere de famille—the good father of the family, or good family man, the comparable figure of Roman and civil law. Setting matters as much: the heritage of kings and lords, and judges and Westminster Hall, makes for different offspring than that of Rome and Continental learning, of wise thinkers and treatise authors, of Parliament House and institutional writers. When law is understood as a humanistic and rhetorical discipline, the force of myth, in all its aspects, is only natural.

In 2019, an article in the University of Memphis Law Review considered whether individuals with a highly sensitive temperament are able to recover for intentional infliction of emotional distress (IIED), given the tort’s ‘reasonable person’ standard. The author argued that this standard discriminates against plaintiffs who are more susceptible to emotional harm than average. How has the law of IIED historically accounted for plaintiffs with underlying conditions? Here this question is addressed with respect to diagnosed and undiagnosed psychiatric vulnerabilities, including suspected or confirmed genetic predispositions, in light of continued research interest in the field of psychiatric genetics. Although scientific advances could allow plaintiffs to assert harm in new ways, alternatively shifting the focus of IIED away from the plaintiff’s vulnerabilities and toward the defendant’s conduct could return IIED to its roots as a dignitary tort and better serve the interest of individual corrective justice.

In 1981, while in the FTC's Bureau of Consumer Protection, two of the authors were instrumental in initiating the FTC's fraud program, relying on Section 13(b)'s authority to obtain a permanent injunction to seek equitable relief, including asset freezes and consumer redress. The fraud program has become a mainstay of the Commission's consumer protection program, and the agency now coordinates local, state, national, and international agencies to fight the many faces of fraud. When the Obama Administration claimed that 13(b) could be used beyond fraud cases, an authority that all previous Commissions believed they lacked, we warned that this overreach could threaten the heretofore uncontroversial fraud program. A case currently before the Supreme Court challenges the FTC' s ability to obtain monetary relief under 13(b) in any circumstances, which we call the Never position. The Commission takes the opposite extreme, arguing that monetary relief is available in any case it chooses, which we term the Always position. We argue that both positions are wrong. Among other problems, the Never position would terminate the fraud program, ending 40 years of successful use of an important, practical solution to one of the major problems that consumers face, with no clear evidence that the Commission has exceeded its authority. The Always position ignores both the text of Section 13(b), which limits permanent injunctions to "proper cases," and the statutory structure, which itself limits the FTC's ability to obtain monetary relief. Congress originally considered Section 13(b) as part of a comprehensive set of changes to enhance the Commission's authority, which also included what became Section 19 two years later. That section limits the FTC's ability to obtain monetary relief to conduct that a reasonable person would know was dishonest or fraudulent. We argue instead for a middle ground. Because Section 19 requires separate administrative proceedings before the Commission can seek monetary relief, the money would be gone without the ability to obtain extraordinary relief, especially an ex parte asset freeze. It therefore cannot be used to attack fraud successfully. The middle ground would allow 13(b) to be used against fraudsters. Another advantage of the middle ground is that it respects the original vision of the FTC that there are some law violations for which monetary relief is inappropriate, a view codified in both 1914 and again in Section 19 in 1975. For example, complex issues of advertising substantiation, as well as issues about the adequacy of disclosures to consumers, about which reasonable experts often disagree, should normally be resolved through the administrative process. To subject all violations of the FTC Act routinely to potential monetary relief risks chilling the provision of truthful and useful information, as well as other conduct beneficial to consumers.

This note discusses the standard that should be applied for asylum seekers who are fleeing religious persecution in their home country. In order to gain asylum in the United States, applicants must meet the standard of a refugee, meaning that, among other things, they must demonstrate that they have a “well-founded fear” of returning to their country of origin. “Well-founded fear” has been defined as when the applicant has a “subjectively genuine and an objectively reasonable fear”. The subjective fear is established when an applicant is found to have testified credibly concerning their fear of return. The objective standard is more difficult to define but has been likened to the “reasonable person standard”, when “a reasonable person in his circumstances would fear persecution” upon return to the native country. This standard is inconsistent with the way in which other religious legal issues are typically addressed, and becomes impossible to apply when an individual fears religious persecution such as black magic, voodoo, or witchcraft that is incompatible with the Western perspective of a “reasonable” fear. Evaluating another culture’s religious beliefs through the lens of a “reasonable person” standard results in blanket discrimination against non-Western ideologies. The Supreme Court’s long-standing approach to determining an individual’s religious beliefs is that it is only appropriate to determine the sincerity of the belief, not the underlying veracity of the belief itself. The same standard should be applied towards asylum seekers whose fear of returning to their home country is rooted in their religious beliefs.

Since the enactment of the Trafficking Victims Protection Act of 2000 and its requirement that victims and prosecutors make a showing of coercion under a reasonable person standard, an entire class of victims effectively became unprotected and no longer deemed victims. The inability to meet such a high burden not only produces a lower rate of successful criminal and civil prosecutions, but also—and most alarmingly—precludes many a victim’s participation in basic and highly needed governmental services, required both to cope with and recover from the trauma. The consequences are particularly egregious in the context of domestic servitude, where traffickers successfully rely on the prosecution’s inability to disprove consent. From the perspective of Policy-Oriented Jurisprudence, this article analyzes the conditioning factors leading to the adoption of the reasonable person standard in our trafficking legislation, all relevant judicial, legislative, and executive actions enforcing it. In addition, it criticizes the standard’s conceptual and practical limitations. In the interest of making our anti-trafficking regime better approximate a public order of human dignity and current international.

A classic debate concerns whether reasonableness should be understood statistically (e.g., reasonableness is what is common) or prescriptively (e.g., reasonableness is what is good). This Article elaborates and defends a third possibility. Reasonableness is a partly statistical and partly prescriptive “hybrid,” reflecting both statistical and prescriptive considerations. Experiments reveal that people apply reasonableness as a hybrid concept, and the Article argues that a hybrid account offers the best general theory of reasonableness. First, the Article investigates how ordinary people judge what is reasonable. Reasonableness sits at the core of countless legal standards, yet little work has investigated how ordinary people (i.e., potential jurors) actually make reasonableness judgments. Experiments reveal that judgments of reasonableness are systematically intermediate between judgments of the relevant average and ideal across numerous legal domains. For example, participants’ mean judgment of the legally reasonable number of weeks’ delay before a criminal trial (ten weeks) falls between the judged average (seventeen weeks) and ideal (seven weeks). So too for the reasonable num- ber of days to accept a contract offer, the reasonable rate of attorneys’ fees, the reasonable loan interest rate, and the reasonable annual number of loud events on a football field in a residential neighborhood. Judgment of reasonableness is better predicted by both statistical and prescriptive factors than by either factor alone. This Article uses this experimental discovery to develop a normative view of reasonableness. It elaborates an account of reasonableness as a hybrid standard, arguing that this view offers the best general theory of reasonableness, one that applies correctly across multiple legal domains. Moreover, this hybrid feature is the historical essence of legal reasonableness: the original use of the “reasonable person” and the “man on the Clapham omnibus” aimed to reflect both statistical and prescriptive considerations. Empirically, reasonableness is a hybrid judgment. And normatively, reasonableness should be applied as a hybrid standard.

Would government access to the mental impressions and memories of individuals be an unreasonable search or seizure? In this article I explore technology-facilitated law enforcement access to information stored within individual human minds and what barriers the Fourth Amendment may present to such invasions. I begin by reviewing the development of brain-computer interface technology and its current and probable near-future capabilities. I then explore the right protected by the Fourth Amendment, and how the reasonable expectation of privacy analysis currently favored by the Supreme Court may interact with such technology. I conclude that some particularly invasive thought access techniques are probably not a constitutional "search" under that approach. I propose that certain aspects of the property-oriented view of "[t]he right of the people to be secure in their persons" extant prior to the Supreme Court's decision in Warden v. Hayden may remain applicable when the corporeal mind is the subject of a search and seizure. I also promote the notion that the nature of the right should be grounded in the words of the Amendment, with a focus on the enumerated right to personal security rather than the unenumerated and often arbitrary "reasonable person" privacy analysis. I then attempt to formulate a definition of the "inviolate person," a boundary beyond which a governmental intrusion is per se unreasonable. I offer several justifications for this demarcation beyond the constitutional argument, and conclude with a brief argument for a two-tiered exclusionary rule with additional consequences for egregious constitutional violations.

Each of the core intellectual-property rights — patent, copyright, and trademark — plays a critical role in society, serves a unique doctrinal function, and enjoys a well-understood justification. Patent encourages innovation in the sciences, copyright promotes creation in the arts, and trademark ensures fairness in the markets. In this sense, the lesser-known but frequently litigated state-law publicity right is vastly different. Although it too plays a critical role in society and serves a unique doctrinal function, the right lacks any compelling justification, varies in scope across jurisdictions, and wreaks havoc among judges, litigants, and legislators. Nowhere is the difference more apparent than in publicity-rights cases which pin an athlete against an artist. In a typical publicity-rights case involving a dispute between an athlete and an artist, the athlete sues the artist for depicting his or her name, image, or likeness, the artist raises a number of defenses, and the jury (or more often the court on summary judgment) evaluates them. The so-called “First Amendment defense” advances a practically intriguing and intellectually stimulating argument: Effectively, the defense concedes that the artist’s work infringes the athlete’s publicity right, contends that his or her work constitutes First Amendment-protected speech or expression, and concludes that he is immune from liability. The necessary inference in this line of reasoning, of course, is that First Amendment-protected speech or expression immunizes an otherwise-infringing work from liability. The problem, however, is that it is unclear whether the inference is in fact true. To find out if it is, courts overt time developed numerous legal tests, each attempting to strike the appropriate balance between the two rights. The high-profile Tiger Woods litigation provides an excellent illustration. In that case, Tiger, through his closely held marketing company, sued now-(in)famous artist Rick Rush for depicting Tiger’s likeness in Rush’s “The Masters of Augusta,” which he painted following Tiger’s record-breaking eighteen-stroke victory at the 1997 Masters Tournament. Rush, in response, raised the First Amendment defense. The district court granted summary judgment to Tiger, the Sixth Circuit reversed, and the Court denied certiorari. Although it reached the correct result, the Sixth Circuit’s opinion was hardly a model for clarity. Its opinion failed to navigate the law surrounding the claims, left everyone to discern for themselves the precedential value of the opinion going forward, and perpetuated the above-outlined issues between the publicity right and First Amendment. This need not be the case and the solution is simple: The publicity right should be available to an athlete only in cases where a reasonable person would mistakenly believe that the athlete endorsed a third-party’s product or service. This far-more-limited view of the right — one akin to trademark’s false-endorsement theory of liability grounded in economic-harm and unjust-enrichment theories — would provide a sturdier normative framework through which to understand the right, limiting in the first instance an athlete's ability to bring publicity-rights claims against an artist and lessening the need for uncertain, unpredictable, and sometimes even unworkable tests in this critical area of the law.

Artificial intelligence is part of our daily lives. Whether working as taxi drivers, financial analysts, or airport security, computers are taking over a growing number of tasks once performed by people. As this occurs, computers will also cause the injuries inevitably associated with these activities. Accidents happen, and now computer-generated accidents happen. The recent fatality caused by Tesla’s autonomous driving software is just one example in a long series of “computer-generated torts.” Yet hysteria over such injuries is misplaced. In fact, machines are, or at least have the potential to be, substantially safer than people. Self-driving cars will cause accidents, but they will cause fewer accidents than human drivers. Because automation will result in substantial safety benefits, tort law should encourage its adoption as a means of accident prevention. Under current legal frameworks, manufacturers (and retailers) of computer tortfeasors are likely strictly responsible for their harms. This article argues that where a manufacturer can show that an autonomous computer, robot, or machine is safer than a reasonable person, the manufacturer should be liable in negligence rather than strict liability. The negligence test would focus on the computer’s act instead of its design, and in a sense, it would treat a computer tortfeasor as a person rather than a product. Negligence-based liability would create a powerful incentive to automate when doing so would reduce accidents, and it would continue to reward manufactures for improving safety. In fact, principles of harm avoidance suggest that once computers become safer than people, human tortfeasors should no longer be judged against the standard of the hypothetical reasonable person that has been employed for hundreds of years. Rather, individuals should be measured against computers. To appropriate the immortal words of Justice Holmes, we are all “hasty and awkward” compared to the reasonable computer.

In this hypothetical accident, the driverless car sees a “polar bear” – the “polar bear” in the real instance is that speeding truck traveling through a red light that the driverless car ought to have sensed and avoided – and does not know how to handle the particular input – which has not been previously programmed. Within the traditional tort paradigm, liability extends to those foreseeable outcomes from tortious behavior or operation. However, liability for secondary outcomes arises in those situations where the vehicle ought to have sensed the data in the outlying immediate area, but failed to do so (i.e., no matter how fast the car swerved, absent any additional negligence, some negligent act put into motion the entire sequence).In such situations, the driverless car programmer would be responsible for secondary outcomes not foreseen or realized prior to release of the product into society. In such situations, the standard for foreseeability would no longer appropriately be limited to the “reasonable person” for the simple reason that the driverless car is not operated by the “reasonable person” but by the “super-person.” Given the realities of human limitation, driverless cars are marketed to pick up the slack where humans err. In such a case, the standard of foreseeability is not that which the reasonable driver or person could fathom, but that which the programmer of the reasonable super-person or super-driver would have determined through the numerous iterations necessary prior to releasing the autonomous vehicle to market.The sudden emergency doctrine (SED) operates in tort law to relieve from liability actors who the law determines are incapable of making a decision at the time of some otherwise negligent act. The crux of the doctrine is that liability is only quashed in unique situations, like lightning striking, typhoons shutting down traffic signals, and a platypus crossing the road. Other examples include a terrorist attack or a passenger experiencing a cardiac arrest.To date, humans lack the capacity to deliberate or process information in extreme circumstances – again, like lightning striking the road ahead – to the extent necessary for rational decision making by human actors. However, unlike human drivers, autonomous vehicles (AVs), or driverless cars, theoretically have the capacity to anticipate all known obstacles that have been pre-programmed and then make decisions based on this programming, even during emergencies. In the case of driverless cars, the decisions programmed generally anticipate all known obstacles.Still, in the narrow set of emergency circumstances proposed in the Introduction, it is conceivable that driverless cars might lack pre-programmed directions to act. After experiencing lightning strikes, massive system failures, typhoons, or speeding platypuses crossing the road, the question begged is whether the driverless car’s action would receive the same treatment by courts as would a human actor under SED. This paper endeavors to answer that question and then to explain why SED ought to apply to AVs as a policy matter.

Corroboration: A statement that a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability is admissible under hearsay exception Fed.R.Evid. 804(b)(3)(A). However, in a criminal case a statement that tends to expose the declarant to criminal liability, offered either to exculpate or inculpate, is not admissible unless also supported by corroborating circumstances that clearly indicate its trustworthiness, Fed.R.Evid. 804(b)(3)(B). The additional requirement that the court pursuant to Fed.R.Evid. 104(a) find the presence of corroborative circumstances clearly indicating the trustworthiness of the statement against penal interest when offered to exculpate an accused was imposed in response to an awareness of both the suspect nature of such statements and the impact such a statement would have upon a jury applying a standard of proof of guilt beyond a reasonable doubt. It was felt that a criminal defendant could, and would, frequently produce a witness willing to falsely testify that a third person, in his presence, had admitted to committing the crime for which the defendant was on trial. Very interesting is the dispute concerning the relevance of extrinsic evidence corroborating the facts stated in the statement itself. While the United States v. Forest, 355 F.3d 942 (6th Cir. 2004), rev’d on other grounds by Garner v. United States, 543 U.S. 1100 (2005), requires the presence of extrinsic evidence that supports the inculpatory statements of the declarant, the same Sixth Circuit in United States v. Johnson, 581 F.3d 320, 329 (6th Cir. 2010) concludes that the requirement of corroboration “requires us to focus not ‘on whether other evidence in the case corroborates what the statement asserts, but rather on whether there are corroboratory circumstances which clearly indicate the trustworthiness of the statement itself.’ ” Most authority concludes that corroboration includes both the declarant’s trustworthiness as well as the statement’s trustworthiness. Confrontation clause: Pursuant to the Supreme Court’s jurisprudence beginning with Crawford, as of this moment, when the declarant of an out-of-court hearsay statement is not and was not subject to cross-examination concerning such statement offered as substantive evidence against the criminal defendant, the following defines the concept of “testimonial” for confrontation purposes: An out-of-court statement is “testimonial” only if hearsay as defined in Fed.R.Evid. 801(a)-(d) and the statement was made by, or made to, or elicited by a police officer, other law enforcement personnel, or a judicial officer, if upon objective evaluation of the statement and actions of both the declarant and interrogator, if any, involved in the interrogation or statement creation, along with the informality or formality of the interrogation or statement creation, considered in light of the circumstance in which the interrogation or statement creation occurred, the court concludes that the primary purpose of the interrogation or statement creation was to establish or prove past events relevant to a later criminal prosecution.Under Crawford/Davis, as interpreted in Bryant and Clark, clearly collateral incriminating statements against penal interest of an unavailable declarant made to a law enforcement official are almost universally “testimonial” and barred by the confrontation clause when offered as substantive evidence against a criminal defendant, i.e., the primary purpose of the interrogation or statement creation was to establish or prove past events relevant to a later criminal prosecution. A statement against penal interest, including collateral statements, not said to a law enforcement official, i.e., “nontestimonial”, that satisfies the requirements of Fed.R.Evid. 804(b)(3) will satisfy Crawford/Davis and progeny. The Bruton doctrine. In Bruton v. United States, 391 U.S. 123 (1968), the United States Supreme Court held that the substantial risk that the jury, despite instructions to the contrary, would consider statements of a nontestifying codefendant not substantively admissible against the accused presented in a joint trial as implicating the accused made introduction of such statement improper. However, a properly redacted statement of a nontestifying codefendant, not substantively admissible against the accused, may be introduced: “Confrontation Clause is not violated by the admission of a nontestifying codefendant’s confession with a proper limiting instruction when, as here, the confession is redacted to eliminate not only the defendant’s name but any reference to her existence,” Richardson v. Marsh, 481 U.S. 200, 210 (1987). A properly redacted statement is one that does not facially incriminate the codefendant, Gray v. Maryland, 523 U.S. 185 (1998). A redacted statement has been held to satisfy the foregoing standard following insertion of the pronouns, “we” or “they” or the indefinite pronoun, such as “someone” or “another person” when following such insertions the statement does not facially, without reference to other evidence, still obviously refer to and implicate the codefendant. A proper limiting instruction is, of course, required. A statement by a co-defendant, regardless of whether offered in a joint or severed trial, containing a collateral inculpatory statement, when made to a law enforcement official with a primary purpose of establishing or proving past events relevant to a later criminal prosecution, i.e., “testimonial”, is precluded by Crawford/Davis and progeny absent the opportunity for cross-examination. Thus, a Bruton issue does not arise with respect to “testimonial” statements. However, a question remains as to whether Bruton retains validity where the collateral inculpatory statement was made under circumstances that make the statement “nontestimonial” under Crawford/Davis and progeny definition presented above such as when made to someone outside law enforcement. When one considers that Justice Scalia authored current confrontation clause theory in Crawford/Davis in response to and specifically to prevent some state and lower federal courts from improperly ignoring prior confrontation clause analysis by admitting as substantive evidence collateral inculpatory statements against penal interest, it is suggested that there is simply no way that the United States Supreme Court would permit such statements, if nontestimonial but substantively admissible solely against the nontestifying co-defendant in a joint trial, to be free from constitutional oversight, whether that be the confrontation clause, the due process clause, or both. In fact, the confrontation clause is clearly multifaceted enough to support an independent justification for the continued vitality of Bruton and its progeny. What the four decisions cited above indicate is the continued desire of lower courts, as extensively detailed by Justice Scalia in Crawford to admit collateral inculpatory statement against the criminal defendant wherever and however possible. Lower courts in great measure simply do not share the United States Supreme Court’s view expressed in Williamson, Lilly and Crawford that the criminal justice system is functioning more justly when such collateral inculpatory statement of a nontestifying declarant are barred from presentation before the jury for any purpose.

Public Reason theorists in political philosophy – roughly, Rawlsians – often make what sure sound like epistemological statements. They talk about justifying principles to others, about the uncertainty with which we should hold our evaluative commitments, about reasonable persons and comprehensive doctrines, about a morally politically motivated higher epistemic standard, about intellectual modesty, and of course, about the burdens of judgment. But they rarely explain, let alone defend, these seemingly epistemological commitments, nor do they engage contemporary epistemological literature. In this paper, I expose these commitments to epistemological scrutiny, arguing that at the end of the day they cannot be vindicated. I focus on what, on such theories, a reasonable person who is nevertheless committed to a comprehensive doctrine believes, and on what epistemic standard may be politically relevant in this context.

Although strikingly different opinions on use of the N-word have provoked much debate, the conclusions reached in Johnson and Weatherly — that intraracial use of the N-word can create a racially hostile work environment — are correct because they comport with the longstanding legal recognition of intraracial, same-sex, and third-party associative employment discrimination. The shameful historical legacy of the N-word underscores the extent to which a reasonable person of any race would likely object to its use at the workplace, even if the speaker is black. Furthermore, social science research indicates that black individuals’ implicit antiblack biases may lead to ill-intended use of the N-word against other blacks. Finally, applying the same objective standard to intraracial and interracial use of the Nword, regardless of the speaker’s intent, promotes fairness, consistency, and judicial efficiency.

There is vast empirical evidence of the difference in men and women’s perceptions of and responses to police authority, their speech patterns and conduct. Yet these differences are rarely reflected in constitutional criminal procedure law, despite many of its rules hinging on a person’s manner of expression or subtleties of behavior. Similar evidence exists for the systematic impact of juvenile status and intellectual disability, but only modest and ad hoc consideration has been given to these factors. The result is that the “reasonable person” is actually implicitly a white male, adult and able-minded. His speech and conduct are treated as normal, and the different speech and conduct of women, juveniles, and the intellectually disabled is not incorporated into the doctrine. Consequently, those individuals have lowered rights under the law. The solution is simple yet profound: courts should account for apparent and relevant subjective characteristics in their reasonable person and totality of the circumstances analyses. Applied consistently, this solution would not only improve equity, but also would bring clarity to the doctrinal chaos that has resulted from the Supreme Court and lower courts’ erratic consideration of subjectivity throughout constitutional criminal procedure law.

This paper addresses the standard of good faith to be applied to the duty to settle. All insurance policies contain an implied covenant of good faith and fair dealing. This implied covenant has been applied by U.S. courts to an implied duty to settle contained in most liability insurance policies. The implied duty to settle arises from the insurers’ right to settle cases under terms of most liability policies. Because insurers have the duty to defend and the right to settle, courts have found that insurers have an obligation to act in good faith when considering a settlement offer within the policy limits of the liability insurance policy. The American Law Institute “restatement” project to restate the law of liability insurance explicitly adopts a test for the duty to settle that an insurer “has a duty to the insured to make reasonable settlement decisions,” and that a “reasonable settlement decision is one that would be made by a reasonable person that bears the sole financial responsibility for the full amount of the potential judgment”. This standard is referred to as the Disregard the Limits (DTL) standard. This paper provides background on the DTR standard and will compare that standard to the Equal Consideration (EC) standard which requires that an insurer, in addressing settlement offers, give equal consideration to the interests of the insured as to its own interests. It will then situate Missouri law within the context of these two tests and the state of the law more generally.

The enforcement program at the Securities and Exchange Commission has been the subject of severe criticism in recent years. The occasional reforms that have been adopted have not begun to root out the deeper, structural defects with the investigation and charging process at the SEC. Reforms going to the essence of the process and the way the Division of Enforcement operates are needed. The three fundamental problems with SEC enforcement are that the Commission and the Division of Enforcement (1) advance legal theories that are outside settled boundaries, (2) misunderstand or mischaracterize the factual record, and (3) fail to accord fair and impartial treatment to persons being investigated. The result is an unacceptably high number of cases that lack merit, meaning either that the extensive evidence collected by the SEC does not support the alleged violation or that the case relies on a legal theory that is not likely to be accepted by a court. The SEC can do better and be more effective. It can extend more fairness and consideration to those being investigated without any damage to tough enforcement. The paper describes four ways to improve SEC enforcement: • use established and accepted legal theories and do not base claims on new, untested liability theories, • create an objective and balanced investigative record that considers both potential wrongdoing and innocent explanations,• apply rigorous, neutral standards before opening investigations and initiating cases. A formal investigation should be based on credible evidence justifying a reasonable suspicion of a possible violation and on an evaluation of enforcement priorities. The Commissioners should not authorize a proceeding unless they believe a reasonable person would conclude that the SEC is more likely than not to prevail on the facts and the law and believe that a proceeding would serve broad and legitimate enforcement goals, and • substantially shorten investigations. Each member of the staff should make an effort to limit the number of documents requested and the number of individuals called for testimony. A fifth possible reform, discussed in an earlier article, is that the SEC should significantly narrow investigative subpoenas.

Privacy policies are verbose, difficult to understand, take too long to read, and may be the least-read items on most websites even as users express growing concerns about information collection practices. For all their faults, though, privacy policies remain the single most important source of information for users to attempt to learn how companies collect, use, and share data. Likewise, these policies form the basis for the self-regulatory notice and choice framework that is designed and promoted as a replacement for regulation. The underlying value and legitimacy of notice and choice depends, however, on the ability of users to understand privacy policies.This paper investigates the differences in interpretation among expert, knowledgeable, and typical users and explores whether those groups can understand the practices described in privacy policies at a level sufficient to support rational decision-making. The paper seeks to fill an important gap in the understanding of privacy policies through primary research on user interpretation and to inform the development of technologies combining natural language processing, machine learning and crowdsourcing for policy interpretation and summarization. For this research, we recruited a group of law and public policy graduate students at Fordham University, Carnegie Mellon University, and the University of Pittsburgh (“knowledgeable users”) and presented these law and policy researchers with a set of privacy policies from companies in the e-commerce and news & entertainment industries. We asked them nine basic questions about the policies’ statements regarding data collection, data use, and retention. We then presented the same set of policies to a group of privacy experts and to a group of non-expert users.The findings show areas of common understanding across all groups for certain data collection and deletion practices, but also demonstrate very important discrepancies in the interpretation of privacy policy language, particularly with respect to data sharing. The discordant interpretations arose both within groups and between the experts and the two other groups. The presence of these significant discrepancies has critical implications. First, the common understandings of some attributes of described data practices mean that semi-automated extraction of meaning from website privacy policies may be able to assist typical users and improve the effectiveness of notice by conveying the true meaning to users. However, the disagreements among experts and disagreement between experts and the other groups reflect that ambiguous wording in typical privacy policies undermines the ability of privacy policies to effectively convey notice of data practices to the general public. The results of this research will, consequently, have significant policy implications for the construction of the notice and choice framework and for the US reliance on this approach. The gap in interpretation indicates that privacy policies may be misleading the general public and that those policies could be considered legally unfair and deceptive. And, where websites are not effectively conveying privacy policies to consumers in a way that a “reasonable person” could, in fact, understand the policies, “notice and choice” fails as a framework. Such a failure has broad international implications since websites extend their reach beyond the United States.

Dogs are natural detectives whose sniffing skills have long been valued by police and the courts. This article will aid criminal defense attorneys in challenging dogs whose alerts led to the discovery of evidence being used against their clients. The U.S. Supreme Court’s recent decision in Florida v. Harris controls these cases and shapes the debate on police dog reliability.In Harris, the Court established a rebuttable presumption in favor of finding that a dog’s alert was sufficiently reliable to form probable cause to search for contraband. A dog is deemed reliable if he accurately detects drugs in controlled settings and is either certified to do so or has recently proved his sniffing skills in a training program. Defendants can rebut this presumption by challenging the alert in question, the adequacy of a dog’s certification or training program, or the team’s performance. A court will assess all the facts and determine whether the totality of the circumstances would lead a reasonable person to believe that a search following a dog's alert would reveal contraband. A dog’s reliability is a critical issue because the evidence obtained as a result of its alert may be necessary to the government’s case. If the prosecution relies on a dog that was unreliable or prompted to alert, the evidence should be suppressed. The government has several advantages, however, that make the Harris presumption a challenge to overcome. On the other hand, the opinion helps defense attorneys challenge particular dogs by identifying areas of factual inquiry that inform legal arguments in support of a motion to suppress evidence. This guide will prepare these attorneys by explaining the Harris framework and proposing a strategy addressing the relevant legal and factual issues.Part One considers the Court’s jurisprudence on drug-detection dogs and summarizes the Harris opinion. Part Two stresses the importance of making an aggressive challenge to a dog’s reliability. Part Three explains how to apply the Harris framework to a particular dog and identify a pattern of deficiency that can undermine its alert.

IntroductionIt simply cannot be maintained that negligence is morally blameworthy. It therefore cannot be maintained that negligence liability achieves corrective justice by transferring a wrongful loss from one who is innocent to one who is to blame. Those who find fault with negligence fail to take seriously the absence of fault in any instance of true inadvertence, however harmful its consequences; and they are thus at fault for constructing a theory of corrective justice that fails to do justice to those who unthinkingly cause harm to others. Or so I will argue in this article. If such a claim boils the blood from the outset, let me assure you that I realize its perversity. It is a claim that runs against hundreds of years of case law and scholarship, and therefore, a claim that begs for rejection. I myself have worked hard to reject it. It offends my strongest intuitions, and it is an indictment of the standard theoretical view of corrective justice to which I have long held an allegiance.1According to the view embraced by most tort theorists who take the goal of accident law to be corrective justice, there is no justice in imposing liability "strictly" - that is, without a finding of moral fault on the part of persons whose actions cause injury to others. But when the costs of accidents are transferred to parties whose negligent failure to appreciate the risks of their actions was a proximate cause of those accidents, tort law is vindicated by the corrective justice that it achieves. If one cannot morally condemn a person's inadvertence to a risk, however - even in circumstances in which that inadvertence strikes us all as outrageous - then negligence liability inevitably fails to achieve corrective justice. Put differently, if one cannot find fault with negligence then negligence liability is a form of strict liability. Those who embrace and advance a corrective justice theory of tort law thus have three choices: (1) they must give up their conviction that tort law should be in the business of correcting injustices; or (2) they must give up their conviction that injustices occur only when persons cause legally-recognized harms to others in ways that are blameworthy; or (3) they must denounce negligence liability in tort law and work towards the adoption of doctrinal requirements that genuinely map civil liability onto conditions of moral blameworthiness - by, for example, requiring that defendants be at least reckless (if not knowing or purposive) with regard to the harms their actions cause.It is the burden of this article to make this tripartite choice inescapable; that is, to defend my reluctant conclusion that negligence liability is not fault-based liability. Let me begin, however, by disentangling and setting aside tempting misinterpretations of my project. First, it would be natural, but wrong, to assume that the thesis I am advancing is simply the standard claim that Oliver Wendell Holmes made so eloquently in 1881 in The Common Law,2 and that torts professors enjoy extracting from their students when they introduce them to the concept of negligence in their first year courses; namely, that sometimes an objective standard of conduct of the sort captured by "the reasonable person test" will result in the imposition of liability on those who cannot meet such a standard - that is, on persons whose natural limitations make a mockery of that goal. As Holmes famously put it:If, for instance, a man is born hasty and awkward, is always having accidents and hurting himself or his neighbors, no doubt his congenital defects will be allowed for in the courts of Heaven, but his slips are no less troublesome to his neighbors than if they sprang from guilty neglect. His neighbors accordingly require him, at his proper peril, to come up to their standard, and the courts which they establish decline to take his personal equation into account. ... The law considers, in other words, what would be blameworthy in the average man, the man of ordinary intelligence and prudence, and determines liability by that. …

Observers who are angered by rule violations and punish violators often play a critical role in enforcement. Hence a key question is: when will noncompliance provoke anger, and when will it be excused? This paper develops a theory of rule compliance as the outcome of a two-person Bayesian game. The core of the model is its description of what constitutes an excuse. Noncompliance is excused when a "reasonable person" in similar circumstances would also have failed to comply. Phenomena explained include the role of "legitimacy" in enforcement; corruption traps; tolerance of self-interestedness in markets; and graduated sanctions for repeat offenders.

The Law & Economics movement has occasionally been a victim of its own success. Over the past four decades, it has generated an enormous specialist literature, often explicitly intended for other specialists. As is so often the case with increased specialization, the result has been escalating technical complexity accompanied by forbiddingly formal mathematics and a tendency to retreat into abstraction. As a result, Law & Economics has often failed to provide general legal audiences with insight into important legal questions, even where the tools of economics would be appropriate and useful. This Article examines – and rectifies – just such a failure. In particular, this Article examines departures from a uniform reasonable person standard in negligence law. From an economic standpoint, individuals might be held to different standards of care because: 1) they differ in their cost of taking precautions (e.g., a good driver can take additional precautions more cheaply than a bad driver); or 2) they differ in the accident costs they generate when exercising a given amount of care (e.g., a good driver causes fewer accidents than a bad driver that is exercising the same precautions). Though the two possibilities lead to sharply different prescriptions, the abstract nature of the Law & Economics literature has led scholars to focus almost entirely on the former scenario, while neglecting the latter. By examining both possibilities, I provide a new and superior explanation of how tort law treats disabilities and professional skill. In doing so, I also demonstrate the extent to which important legal insights can remain unappreciated when buried in an overly abstract mathematical literature.

Constitutional law is plagued by meaning conflict at both the doctrinal and the theoretical levels. This article takes up two loci of such conflict and contest of constitutional meaning - the Necessary and Proper Clause (recently visited by the Supreme Court in the Comstock case) and the reasonable person device in the New Originalism - so that insight might be gained from the mutual comparison and illumination of their problems. In this process, dialogue replaces just “looking for one’s friends” in constitutional argument as various voices are considered and not silenced so that a favored one may be privileged. The result of this reciprocal examination is a paired argument for a fiduciary, agency law model of the Necessary and Proper Clause and also for a Dialogic Originalism as a replacement for the currently fashionable reasonable person New Originalism.

Despite the prominence of the objective "reasonable person standard" in tort doctrine, it is a mistake to conclude that perspective has no place in contemporary tort law. Although explicit perspectival standards, such as the "reasonable woman standard," have gained little acceptance in torts, the perspectives and experiences of non-dominant social groups have sometimes been taken into account in key contexts that involve "culturally polarized understandings of fact" and differing judgments about what constitutes reasonably safe behavior. Notably, the battle has not been over precise formulations of the duty to exercise reasonable care, but over whether to impose a duty to exercise reasonable care in the first instance.This Article examines third-party criminal attack claims against landlords, businesses, employers, and other entities charged with negligence for failing to detect and remedy dangerous conditions and prevent sexual assaults and other criminal attacks on their premises. The victims in these cases are often women, racial minorities, and low-income residents of high-crime areas. The Article describes the lack of consensus in the courts as to whether defendants owe a duty to take reasonable measures to guard against crime and analyzes the recent position taken by the Restatement (Third) of Torts in favor of imposing a duty in all but exceptional cases. The Article endorses the willingness of some courts in sexual assault cases to impose a duty and articulate a concept of reasonable care that requires defendants to make their premises equally safe for men and women. It criticizes the line of cases which rejects a duty of due care in high-crime areas, excuses defendants from taking precautions proportionate to the risk, and thereby fails to express a norm of equal safety regardless of where a person resides.

The reasonable observer standard, used in Establishment Clause cases to determine whether government action endorses religion, marks a retreat by the Court from vigorous scrutiny of government purpose and effect. The standard, which examines whether a reasonable observer, familiar with First Amendment values and with the history and context of government action, perceives endorsement, embodies a shift toward formalism in Establishment Clause doctrine.This Essay argues that the reasonable observer standard, which bypasses the role of faith in perception, undermines the protection of a core Establishment Clause value - inclusion. The reasonable observer standard, representing the abstracted perspectives of a "community" of indeterminate faith, decreases the significance of the effect of government action, particularly on the nonadherent. Application of the standard thus tends to validate the perspective of the majority. The value of inclusion is best served by an inquiry into purpose and effect that considers the perceptions of both adherents and nonadherents.

This article shows that extant rights-based theories of accident law contain a gaping hole. They inadequately address the following question: What justifies using community standards to assign accident costs in tort law?In the United States, the jury determines negligence for accidental harm by asking whether the defendant met the objective reasonable person standard. However, what determines the content of the reasonable person standard is enigmatic. Some tort theorists say that the content is filled out by juries using cost benefit analysis while others say that juries apply community norms and conventions. I demonstrate that what is missing from this exchange is a theory that adequately justifies using a particular way of filling out the content of the objective reasonable person standard. Rights-based theories are particularly guilty of ignoring what I call the central normative concern. That concern is what criterion should determine the amount of precaution an individual must use to avoid being justifiably assigned others’ accident costs. To identify this problem I focus on rights-based theories of accident law.After showing how several rights-based theories of accident law inadequately address the central normative concern, I briefly outline a theory of assigning accident costs that has the potential for offering the best answer to the central normative concern. The most important aspect of this theory, called democratic community standard theory, is that it provides a justification for using community standards to adjudicate tort claims. This justification employs Kantian political theory based on how free and equal individuals would choose to assign accident costs.

A patent may be held invalid if it was obtained by “inequitable conduct” before the PTO during the process of patent prosecution. In its Therasense decision the Federal Circuit imposed severe requirements against those attempting to defend against a patent on the basis of inequitable conduct, insisting that inequitable conduct be measured essentially by a subjective test. Objective “reasonable person” tests such as negligence or even gross negligence will not suffice. By contrast, the Supreme Court has insisted that the conduct giving rise to a wrongful infringement action violating the antitrust laws be initially based on an objective test – whether a reasonable person knowing what he knew would have brought this suit under these circumstances. Only after passing this objective screen may an antitrust claimant seek to determine any subjective intent that may be needed for an antitrust claim.The principal distinction between Therasense and Walker Process antitrust complaints based on improper patent infringement actions pertains to the time of evaluation. “Inequitable conduct” generally refers to actions and state of mind (under Therasense) that occur during the patent prosecution process. By contrast, Walker Process necessarily refers to actions and state of mind at the time a patent infringement action is filed or the patent holder engages in other exclusionary conduct, and this may be many years after issuance. This has several implications.First, there could be inequitable conduct under Therasense but relative innocence at the time of an infringement suit if (a) the patent has been assigned to an innocent recipient; or (b) the persons within the firm who were guilty of the inequitable conduct are no longer available and the persons who file the later infringement suit are unsuspecting. This is highly likely to be true for firms with thousands of patents, because the kinds of things that would yield inequitable conduct are often not plain from the patent prosecution record. One conceptual difficulty of Therasense is that state of mind refers to persons, but large firms have many persons. Further, those filing an infringement suit on a ten year old patent have little incentive to dig too deeply in order to find out whether now departed applicants and their agents engaged in equitable conduct.Second, a patent might have been obtained without inequitable conduct, but subsequent evidence of prior art or barring sales or use might emerge, and the person filing the infringement action might have knowledge of these things. In that case a Walker Process antitrust claim should be permitted even though the person prosecuting the patent was innocent of inequitable conduct as Therasense defines it.

How much assistance should a trial judge provide a self-represented litigant (SRL) before the judge’s impartiality will be reasonably questioned? This question has been of continuing concern to both the bench and bar ever since the rise of the pro se litigation movement in the late 1990s. Case law and ethics codes have provided vague guidelines and inconsistent decisions to guide trial judges on this question. The conundrum arises from the conflicts judges face when they try to balance their ethical judicial duty of impartiality and their constitutional duty to provide every litigant a meaningful opportunity to be heard. At the heart of this difficult balancing act is an attempt to maintain the appearance of a fair process. This paper reports the results of a survey administered to 210 Canadian family law practitioners who were presented with 16 scenarios involving a self-represented liigant (SRL) and a represented party. Respondents indicated their views regarding the impartiality and helpfulness of the trial judge in each scenario, which involved a variety of procedural defaults by the SRL, and different forms of judicial assistance. The results indicate, in part, that lawyers' perception of a judge's impartiality are affected by the favorability of the outcome, or lack thereof, for the SRL.. The study is the first stage of a larger study to use empirical data to address the question of when a judge's assistance, or non-assistance, to an SRL would cause a reasonable person to question the judge's impartiality for disqualification purposes. The views of judges and lay persons will be compared to these results in future research whch is intended to determine whether a consensus can be established as to forms of judicial assistance to SRLs that is required, permissible, or impermissible.

Mandatory filings with the SEC, the federal agency charged with protecting investor interests, are often hard to understand. They are long and dense, and filled with financial jargon that even experts can have difficulty deciphering. This is a problem for shareholders as well as the broader economy. Regulators, policymakers, and the public at large have a stake in knowing whether corporate pay practices create incentives that are conducive to real and sustainable economic growth.Congress is tackling this disclosure deficit as part of its financial regulatory reform initiative. The bill passed by Congress includes helpful language directing the Securities and Exchange Commission to clarify disclosure rules on CEO compensation. Regulators should take this opportunity to ensure that disclosures to investors follow two principles:1. Show us the money. Regulators should require companies to display executive compensation information in a standardized graphical format that allows for easy evaluation by ordinary investors. The information should allow shareholders to quickly gauge whether an executive’s performance warranted receipt of his or her performance-based pay, and whether the compensation awarded is commensurate with the value added to a company.2. Make sure we understand. Regulators should in turn be required to evaluate disclosures for comprehensibility. SEC officials should write disclosure rules that focus on the understanding that readers take away, rather than merely focusing on the information companies provide. One approach is to apply a “reasonable person” test to compensation disclosures and require revisions if company reports are not easily comprehensible.Corporate adherence to the twin principles of simplicity and comprehensibility will protect shareholders and empower investors to police excessive executive compensation.

This piece considers the merits of applying the Mathews v. Eldridge balancing test when an elected judge threatens a litigant’s due process rights. We argue that this approach is particularly compelling in light of the Supreme Court’s 2009 decision in Caperton v. A.T. Massey Coal Co. In Caperton, the Supreme Court recognized that a litigant's due process may be violated if the judge harbors an objective "probability of bias.” In perhaps his most vigorous dissent since joining the Court, Chief Justice Roberts posed over forty questions about the potential scope of the decision. Given the Court’s 2002 decision in Republican Party of Minnesota v. White, Justice Roberts has good reason to be concerned. In White, the Court ruled that once a state allows judges to be elected, it can’t muzzle them - candidates for judicial office have the right to announce their views on contentious issues of the day. Taken together, Caperton and White provide the makings of a constitutional crisis. On the one hand judges have a First Amendment right to say almost anything, even if it seems to effectively bind them in future cases. On the other hand, litigants have a due process right not to face a judge whom a reasonable person may deem biased given his previously advertised views. This Article argues that weighing the due process violation by using the reliable and flexible approach developed in Mathews v. Eldridge keeps both decisions intact, while protecting the rights of both the judicial candidates and the litigants.

The reasonable man, through the Law and Economics movement, has recently taken up the features of homo economicus, the rational, self-interested maximizer of economic theory. It is increasingly apparent that most people, most of the time, do not evaluate their own utility or make decisions in the way economic models predict. Our reasonable man and homo economicus are looking more aspirational every day. This paper examines how heuristics and biases influence ex post jury evaluations of whether a defendant arrived at the same assessment of risks as a reasonable person would, or whether a party should have made a different decision to prevent an adverse outcome. In particular, this paper will discuss the hindsight bias, one area where recent insights into rationality and decision-making raise especially severe concerns about jury judgments. This paper will ask why we trust ex-post evaluations when it is apparent that judges and juries will systematically produce holdings based on assessments that don’t, and possibly can’t, replicate the historical judgments they are evaluating in a way that legitimates second-guessing those decisions. This paper will argue that, despite valid concerns, drastic changes in jury deliberation and scope of responsibility are inadvisable. In addition, it will explain how the purported irrationality of hindsight bias suffers from a lack of clarity about what constitutes rationality or irrationality in a jury system. Finally, it will argue that incremental changes should be made through procedural improvements. The legal system’s adaptation to the hindsight bias can set a precedent for further improvements inspired by developments in behavioral science. Unlike the wholesale importation of homo economicus by Law and Economics, the legal system needs to evaluate potential reforms in light of the complex and interrelated goals and safeguards built into the system.

Criminal and tort law are notably concerned with both actions and mental states. It is commonsensical to punish people who intended something bad to happen because they are “bad people” and might be likely to do it again. But why punish (of hold liable) people who merely “knew” or “should have known” that something bad could possibly happen – even if they neither wanted nor intended it to occur? Consistent with other research, we believe that people with such knowledge are viewed as more causal than people without such knowledge. In three scenarios involving complex causation (two involving superceding intervening causes), we measured people’s causal attributions and their responses to hypotheticals about what the main character or other people (i.e., “reasonable people”) would have thought or done given different knowledge. What the characters actually knew, what participants thought they should have known, and what participants thought other people would have done in similar circumstances were all related to causal attributions. These results are consistent with causal research showing that causes are things that change the probability of the outcome occurring relative to some baseline.

Discussion of the obligations of Australian listed companies and Listing Rule 3.1 in and the nature of the disclosure obligation irrespective of how it's obtained? On its face the only relevant test is whether a reasonable person would expect it to have a material effect on the company's share price.

It is the rare case that is decided solely on Free Speech grounds yet directly impacts the Supreme Court’s Establishment Clause jurisprudence. Pleasant Grove City v. Summum is such a case. Although all nine Justices concurred in the judgment — that a privately donated monument in a public park is a form of “government speech” that is not subject to scrutiny under the Free Speech Clause — the case spawned five different opinions as the Justices attempted to explain the proper scope of the Court’s decision on the Free Speech and Establishment Clauses. This paper analyzes the interaction between Summum’s “recently minted” government speech doctrine and the Establishment Clause. In particular, with respect to the Free Speech Clause, I argue that Summum resolves an ongoing Circuit split regarding a common medium of expression — specialty license plates. Recently, six Circuits have reached at least three different conclusions with respect to the status of specialty license plates, and two other Circuits have addressed the First Amendment issue in passing. In addition, a petition for writ of certiorari has been submitted seeking Supreme Court review of a 2008 Seventh Circuit case dealing with this very issue. I maintain that Summum’s new test for government speech is inconsistent with the test that the majority of Circuits has applied to specialty plates. Whereas the majority considers whether a reasonable observer would identify the government as the speaker, Summum focuses on the level of control that the government has over the specialty plate program. Under Summum’s “control” test, many (and possibly all) specialty plate programs — as well as many other forms of speech that are subject to government control — are government speech and, therefore, are exempt from First Amendment scrutiny. Moreover, I contend that Summum’s control test necessarily alters the Court’s analysis of facially religious government speech under the Establishment Clause. Although the Establishment Clause still applies to government speech, the endorsement test does not. To understand why, the paper explores the effect of the government speech doctrine on an issue of first impression — a specialty license plate containing the phrase “I Believe” and a picture of a cross superimposed on a stained glass window. Although the lower court concluded that the plate violated the endorsement test, Summum changes the analysis. Under Summum, the government has the right to say what it wants even though the government’s intended message may differ significantly from the message that observers ascribe to the government. As a result, when dealing with government speech, Justice O’Connor’s “reasonable observer” test focuses on the wrong party — the reasonable observer instead of the government speaker. That is, when determining whether facially religious government speech violates the Establishment Clause post-Summum, the Court must determine whether the government actually has an improper religious motive, not whether a reasonable person interprets the message as impermissibly religious. I conclude that a majority of the current Court is apt to apply the control test and hold that the “I Believe” specialty plate is constitutional.

In Tellabs, Inc. v. Makor Issues & Rights, Ltd., the Supreme Court held that a securities fraud complaint will survive a motion to dismiss only if a reasonable person would deem the inference of [culpable state of mind] cogent and at least as compelling as any opposing inference one could draw from the facts alleged. This paper analyzes how the Tellabs test may be applied, identifies questions left open under the decision, and discusses broader implications of the opinion and the PSLRA. Among other things, the paper suggests that the PSLRA's heightened pleading rules have deformed the motion to dismiss to the point where it now operates in securities fraud cases as a hybrid falling somewhere in between the traditional Rule 12(b)(6) and Rule 56 summary judgment procedures.

Mistaken receipts and misdirected funds expose banks to multi-faceted liability and generate some of the most knotty legal issues, in particular restitution for unjust enrichment and dishonest assistance in breach of trust or fiduciary duty. The recent Court of Appeal case of Abou-Rahmah v Abacha [2006] EWCA Civ 1492 shows that these knotty issues are here to stay. Anchoring on Abacha, this commentary seeks to review and evaluate the legal developments, and to highlight the areas in serious need of judicial clarification. For comparative purposes, reference will be made to the position under New York and California law. To the extent that one could extract something concrete from the decision, Abacha appears to stand for the following propositions. First, for the purposes of the liability for dishonest assistance in a breach of trust or fiduciary duty, dishonesty is measured by an objective standard, so the defendant's conduct would be considered dishonest if it was so regarded by the standards of honest and reasonable men. The application of the objective dishonesty test leads to asking two questions in the following order: First, what is the defendant's actual knowledge of the relevant transactions? Second, in light of the defendant's knowledge, would a reasonable person regard the defendant's conduct as dishonest? Second, anticipatory change of position is a valid defence to an unjust enrichment claim. Third, a defendant could not assert change of position if his conduct was commercially unacceptable. Questions that remain to be answered abound, including the following: · Is "commercial acceptability" a benchmark against which the test of dishonesty is measured? · Granted "dishonesty" is an objective standard assessed in light of the defendant's actual knowledge, is it not beneficial to renounce "dishonesty" and revert to "knowing assistance"? · When receiving funds transferred to it for its customer's account, does a bank receive the funds beneficially? · Does a non-beneficial receipt negate enrichment for the purposes of an unjust enrichment claim? · What has non-beneficial receipt got to do with the change of position defence? · What is the relationship between ministerial receipt and change of position? · If ministerial receipt and change of position are distinct defences, do they share the same disqualifying criteria? · To what extent are a bank's general suspicions about its customer's money-laundering activities relevant to establishing dishonesty and disqualifying the change of position defence? Does the policy of deterring money laundering justify a court taking a broad sword to these issues?

This paper considers whether lack of information regarding risk exposures can lead to a demand for negligence liability insurance. We find that, under the uniform negligence rule, any demand for liability insurance must come from informed individuals. The group whose privately optimal level of care is below the negligence standard may find it less costly to be negligent and purchase insurance. Under the individualized negligence rule, the demand for insurance, if any, comes from rationally ignorant individuals, and the information disclosure environment is a critical determinant of whether there is a demand for liability insurance or not.

How should the law of a liberal state respond when one person (D) kills another person (V), who is black, because D believes that V is about to kill him, but D would not have believed that V was about to kill him if V had been white? Should D be exonerated on grounds of self-defense? Some commentators argue that D's claim of self-defense should be rejected and that he should be convicted, either of murder or manslaughter, and punished accordingly. I disagree. I argue that denying D's claim of self-defense would be at odds with the principle that an actor should be punished, not for possessing or choosing to possess racist or otherwise illiberal beliefs or desires, but only for choosing to cause (or risk causing) harm when the law does not permit him to make such a choice. Moreover, insofar as this principle can fairly be characterized as one to which a liberal state must adhere, then a liberal state should acknowledge D's claim of self-defense.

The reasonable person test is often employed in criminal law doctrine as a criterion of cognitive fault: Did the defendant unreasonably fail to appreciate a risk of harm, or unreasonably fail to recognize a legally relevant circumstance element (such as the nonconsent of the victim)? But it is sometimes applied more directly to conduct: Did the defendant depart sufficiently from a standard of reasonable care, e.g., in operating a motor vehicle, that he deserves punishment? A third version of the reasonable person criterion, which has received much less attention, asks what degree of control a reasonable person would have exercised. Many criminal acts occur in highly emotional, stressful, or emergency situations, situations in which it is often both unrealistic and unfair to expect the actor to formulate beliefs about all of the facts relevant to the legality or justifiability of his conduct. A "reasonable degree of self-control" criterion is sometimes the best criterion for embracing these contextual factors. In self-defense, for example, it is conventional to ask whether the actor believes, and whether a reasonable person would believe, each of the following facts: (a) an aggressor was threatening him with harm, (b) that harm would be of a particular level of gravity, (c) his use of force in response would prevent that harm, (d) the level of responsive force he expects to employ would be of a similar level of gravity, (e) if the force was not used, the threatened harm would occur immediately, and (f ) no nonviolent or less forceful alternatives were available whereby the threat could be avoided. United States law typically requires an affirmative answer to each of these questions. Yet in many cases, an actor threatened with harm will actually have no beliefs at all about most of these matters. It would be unfair to deny a full defense to all such actors. At the same time, we should still hold such an actor to a normative standard of justifiable behavior. Specifically, this essay suggests that we reformulate the reasonableness criterion and require this type of actor to exercise a reasonable degree of selfcontrol in response to a threat of force.

We show that, under the reasonable person negligence rule, heterogeneity of potential injurers can be sufficient to create a demand for liability insurance. Potential injurers with a low probability of accidents or a high cost of exercising care have optimal levels of care that are below the negligence standard. For these groups, it may be less costly to be negligent and purchase insurance than to comply with the negligence standard. We show that the availability of insurance is socially desirable. INTRODUCTION The purpose of this article is to provide a possible explanation for why individuals purchase liability insurance under a negligence rule. Under a negligence rule, injurers are responsible for the damages they cause to their victims only if they have not met the applicable standard of care. If injurers meet that standard of care, then they are not liable and victims bear the full cost of their injuries. Brown (1973) shows that risk-neutral agents will meet the negligence standard if it is set optimally. Shavell (1982) proves that this implies that risk-averse agents will meet the negligence standard and therefore will choose not to purchase liability insurance. In the United States, negligence is usually determined by the "reasonable person" standard, that is, the level of care that would be taken by an average reasonable person. Thus, if a person takes appropriate care, there is no reason to purchase liability insurance. Substantial amounts of money are spent on liability insurance each year by individuals and businesses. For some types of negligence, the demand for insurance is the result of legal (e.g., automobile liability, workers compensation) or contractual (e.g., homeowners) requirements. The markets for other types of negligence liability insurance, such as medical malpractice, professional liability, and commercial general liability insurance, are more difficult to explain. The Insurance Information Institute reports that in the United States during 2005, premiums for medical malpractice insurance were $12.1 billion, premiums for the liability portion of commercial multiple peril insurance were $13.9 billion, premiums for commercial general liability (excluding products liability) were $39.5 billion, and premiums for "other liability" were $54.1 billion. (1) But for the types of liability covered by these policies, knowledge of the standard of care would imply that every potential injurer could simply meet the standard of care and would never be liable. Shavell (2000, pp. 171-172), reflecting widely held views, argues that liability insurance is purchased to protect against possible risks arising out of the following: (1) the uncertain operation of the legal system, (2) risks due to momentary lapses in care, and (3) risks due to the negligent behavior of agents. In this article we show that even in the absence of these three risks, heterogeneity of potential injurers can be sufficient to create a demand for insurance. (2) The reasonable person standard applies the same standard of care to all individuals. (3) However, potential injurers may have different probabilities of accidents or different costs of care (e.g., not all doctors are equally competent). We show that if the reasonable person negligence standard is applied to a heterogeneous population, then some individuals may find that it is less costly to be negligent and purchase insurance than to meet the negligence standard. (4) Liability insurance protects individuals against the risk of having to pay legal sanctions. The purpose of these legal sanctions is to discourage unwanted behavior. This raises the question of whether the availability of insurance weakens the deterrence of unwanted behavior and undermines the effect of the law. Indeed, we show that potential injurers who purchase insurance will optimally choose levels of care that do not meet the negligence standard. Since these individuals choose to be negligent, the insurance increases the expected number of accidents. …

In a recent symposium, Professor Sugarman asks whether any account of Vincent v. Lake Erie Steamship Company provides a justification for the outcome that avoids doctrinal, conceptual question-begging or unexplained inconsistencies within tort doctrine. This Article takes that challenge seriously by providing a justification for the decision that specifies the source of the defendant's obligation to compensate the plaintiff. Contrary to conventional wisdom, the outcome in Vincent v. Lake Erie Steamship Company is based on fault, not strict liability. Although the decision to stay at the dock was socially appropriate, the ship owner acted unreasonably by making that decision without simultaneously agreeing (implicitly) to compensate the dock owner for the damage. Negligence law says that an actor must pay for the cost of reasonable precautions, and the damage to the dock was the precaution that was needed to save the ship. Negligence law internalizes that cost for the same reason that negligence law internalizes the cost of harm when an actor has not invested in reasonable precautions - to make sure that the actor making the decisions matches social costs and benefits. In the normal negligence case, the defendant is required to internalize the cost of excessive harm so that the actor appropriately balances her interest in avoiding the time and effort of precautions against potential harm to others. In Vincent the cost is internalized so that the actor who avoids the harm appropriately balances the harm to others against the cost savings to herself. In both instances, the internalization conserves judicial resources by allowing private decision-making to maximize social value with a minimum of judicial intervention. By integrating our understanding of Vincent into the law of fault and by using the tools of both law and economics and corrective justice to do so, this Article demonstrates how justificational analysis can deepen our understanding of the law.

Standard economic analysis of tort law demonstrates that a negligence rule features continuity/discontinuity of the cost function at the point of optimal care, as causation is or is not taken into account. This analysis has focused exclusively on care models. This paper analyzes the impact of the causation requirement in more realistic models of care and activity. It shows that the continuity/discontinuity feature of the negligence rule depends on the type of the precautionary measure and its relationship with the activity level. If care and expected harm are linear in activity levels, then the negligence rule features continuity. However, if the precautionary measure is perfectly durable (its costs are independent of the activity level), then discontinuity is present. The implications of the continuity/discontinuity feature of the negligence rule under conditions of imperfection are examined. It is shown, for example, that if due care is set at incorrect levels (a reasonable person rather than an individualized standard), then the causation requirement is not necessarily socially desirable; and that it is socially detrimental under conditions of systematically misestimated harm.

The concept of strict liability has important theoretical significance but almost no analytical or doctrinal traction. In fact, at least in the realm of abnormally dangerous activities, the function of "strict liability" should be, and is being, replaced by an analysis that examines the reasonableness of the an actor's choice of where, when, how and how often to do an activity - that is, an activity level reasonableness analysis. The cases that have been thought to be "strict liability" cases in fact can be understood as activity level reasonableness cases and courts are increasingly using reasonableness analysis to determine whether an activity is abnormally dangerous. This movement away from a doctrinally empty concept of strict liability is an important movement toward a more unified, coherent, and analytically sound concept of the reasonable person.

Recent scholarship has questioned whether there remains a meaningful distinction between modern textualism and purposivism. Purposivists traditionally argued that because Congress passes statutes to achieve some aim, federal judges should enforce the spirit rather than the letter of the law when the two conflict. Textualists, in contrast, have emphasized that federal judges have a constitutional duty to give effect to the duly enacted text (when clear), and not unenacted evidence of legislative purpose. They have further contended that asking how a reasonable person would understand the text is more objective than searching for a complex, multimember body's purpose.Writing from a textualist perspective, Professor Manning suggests that the conventional grounds for textualism need refinement. Modern textualists acknowledge that statutory language has meaning only in context, and that judges must consider a range of extratextual evidence to ascertain textual meaning. Sophisticated purposivists, moreover, have posited their own "reasonable person" framework to make purposive interpretation more objective. Properly understood, textualism nonetheless remains distinctive because it gives priority to semantic context (evidence about the way a reasonable person uses words) rather than policy context (evidence about the way a reasonable person solves problems). Professor Manning contends that the textualist approach to context is justified because semantic detail alone enables legislators to set meaningful limits on agreed-upon compromises. In contrast, he argues that by authorizing judges to make statutory rules more coherent with their apparent overall purposes, purposivism makes it surpassingly difficult for legislators to define reliable boundary lines for the (often awkward) compromises struck in the legislative process.

The ASX Listing rules and various provisions of the Corporations Act require that listed corporations keep capital markets informed (subject to carve out provisions) of any information that a reasonable person would expect to have a material impact on the price or value of its securities. An effective continuous disclosure regime represents a key element of a framework for facilitating informed markets. As such, evidence on the extent to which the continuous disclosure regime is functioning is of significance to the regulatory and investment communities alike. This paper questions whether the Australian continuous disclosure regime is working and being enforced at an appropriate level, by forensically reviewing the affairs of listed wine producer Evans & Tate limited during that firm's ill fated 2005 financial year. It is argued that while the firm did indeed continuously disclose financial and non financial information as required, much of the content of that disclosure was misleading. Despite this, no regulatory action has been taken against the firm or its directors. It is therefore concluded that there may be serious deficiencies in the operation of Australia's continuous disclosure framework, particularly in relation to the nature of regulatory responses to apparent breaches of the system.

I was given a speaker's dream brief: to talk about whatever I wanted so long as it had something to do with the theme of the conference - intellectual property ("IP"). A few suggestions were made in a nice, non-authoritarian way. These could, of course, have been treated the way IP lawyers usually proceed, i.e., by entirely ignoring them. That is called purposive construction, and Canadian and British courts do it all the time. So a British court has read a patent claim to say that "vertical" can also mean "leaning", a decision that comforted builders everywhere. Not to be outdone, a Canadian court last year decided, in construing a claim, that "wet" could also mean "dry". Inhabitants of the Sahara might be surprised; so might those from Vancouver or San Francisco. My subject will nonetheless be the IP system. I say the system is out of touch with both business and ordinary public sentiment, and that major rethinking and overhaul are necessary if it is to come into line. So nothing new there. But I shall not discuss particular rules as such. Instead I want to make a more basic point that lawyers tend to ignore. We test much of our legal system and rules by asking whether they fulfill people's legitimate or reasonable expectations. How does that apply to the IP system? How does it apply, in particular, to these questions: (1) Can reasonable folk understand the system? (2) Does the way the rules are expressed make sense to them? As my standard of the reasonable person, I shall vary (as suits) between the reasonable lawyer in her Bay Street office, the reasonable reader whose conduct the law is intending to regulate, and the reasonable judge sitting in his or her courtroom. These two questions - can reasonable people understand the IP system? does the way its rules are expressed make sense to them? - are important. For if the answer to either is no, the system is not doing its job well and risks losing its moral force. Not only will it not be observed, but it may also not deserve to be observed.

This essay examines the contention that, contrary to standard textualist rhetoric of intent skepticism, textualists do care about legislative intent. This essay argues that the validity of that contention, as pressed by Professor Caleb Nelson, depends on the sense in which one describes legislative intent. In any system predicated on legislative supremacy, a faithful agent will of course seek the legislature's intended meaning at some level, and modern textualists situate themselves in that tradition. However, contrary to traditional intentionalists, leading textualists do not believe that the legislative majority as a whole possesses a subjective intention about the words it adopts. Indeed, to suggest that textualists practice intentionalism by other means is to understate their central belief that the cumbersome, chaotic, path-dependent, and opaque legislative process precludes identification of any “actual” or “genuine” legislative intent. Instead, textualists seek an “objectified intent” — the import that a reasonable person conversant with applicable social and linguistic conventions would attach to the enacted words. This essay also challenges Professor Nelson’s further claim that textualism is best explained by a preference for rules over standards. Although textualists may generally prefer rules to standards, this essay suggests that the key to understanding textualism is not such a preference. Rather, it argues that textualism, properly understood, rests on a straightforward conviction that faithful agents must treat rules as rules and standards as standards. Otherwise, legislators will have a difficult time expressing their compromises through the level of generality at which they articulate their policies.