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In criminal cases of self-defense and provocation, and civil cases of negligence, culpability is often decided with reference to how a reasonably prudent person (RPP) would have behaved in similar circumstances. The RPP is said to be an objective standard in that it eschews consideration of a defendant's unique background or characteristics. We discuss theory and evidence suggesting that in morally relevant judgments, including those involving negligence, self-defense, and provocation, the tendency to rely on the self—on one's own values and predilections—dominates considerations of the RPP. We consider subjective standards that have been proposed as alternatives to the RPP and review research on this topic. We conclude by considering avenues for future research, particularly addressing conditions in which self-standards of reasonableness are most likely to prevail.

On regular issues of policy reform—presupposing a stable integrated polity— Hume, Smith, and Burke were liberal in the original political meaning of “liberal.” Thus, on policy reform, although they accorded the status quo a certain presumption (as any reasonable person must), the more distinctive feature is that they maintained (even propounded, most plainly in Smith's case) a presumption of liberty in matters of policy reform. But we need another conceptualization that treats their attitudes about establishing, reforming, and securing the wider structure of political institutions, political procedure, and political culture and character—matters of polity reformation. On polity reformation, they showed sensibilities for which “conservative” is apt (though such conservatism was not otherwise purely neutral). Hume, Smith, and Burke were basically in agreement in the matters treated here. They are polity conservatives. The article develops the two conceptualizations—policy reform and polity reformation—, an understanding of “liberal” applicable to policy reform, and an understanding of “conservative” (namely, a heavy presumption of the status quo) that may be applied to policy reform and to polity reformation. If we code the three thinkers as PLPC (policy liberals and polity conservatives), we may put the matter this way: It would be meaningful but wrong to code them instead PCPC (policy conservatives and polity conservatives). I call their outlook conservative liberalism. I deal disproportionately with Burke, to tussle with two sets of imagined interlocutors, one on Burke as liberal, and the other on Burkean insight on polity reformation.

— Each year, hundreds of people in high-income countries take their own lives while they are in prison. Thousands engage in self-harm and thousands abuse other prisoners. Such behaviours often correlate with mental health problems, but they are also often pleas for help and for hope. Some courts have invoked the ideas of hope and the right to hope in the context of life imprisonment, but they have neither subjected the concept of hope to sustained analysis nor specified the role that hope should play in our practices of lawful punishment overall. This article offers a preliminary investigation of the role for hope in lawful punishment. It argues that one standard that both individual modes of punishment and overall systems of punishment must meet to be morally justifiable is that they be compatible with a reasonable person retaining hope both in the present and for his future after punishment. Such a hope standard narrows the scope of legitimate modes of punishment.

Discourse regarding the legal position of osteopathic clinical educators is scarce. The educator-patient-student relationship is complex and if not managed well may compromise patient and student safety. This doctrinal research paper explores how Australian Civil Liability Legislation may be applied during clinical education. The paper constitutes a thought experiment and uses reasoning by analogy, applied to a hypothetical problem scenario, set during an osteopathic student's clinical practice event for the purpose of exploring the educator's duty relationships and to tease-out possible acts or omissions that could potentially be used in an argument designed to establish a clinical educators breach of duty. The deliberations presented here illuminate the complex relationships and highlight situations in which a reasonable person may consider the clinical educator has provided poor supervision of the student's work with patients. This concept paper signposts the potential vulnerability of the patient and the student if supervision standards are not maintained and if appropriate clinical standards are not applied. Possible lines of arguments a patient may raise or a student may raise in a negligence case as well as possible defences the clinical educator may offer are presented.

This article examines the role of the anger and fear emotions in the loss of control and duress defences and argues that, although fear is now included as a trigger in loss of control, priority is still given to anger as a triggering event. Furthermore, in duress, although fear is the overriding mental state of the duressee, it wrongly forms no part of the rationale of the defence at all. Following a brief examination of both emotions, the article – individually with respect to each defence – considers issues relating to the (in)sufficiency of the objective element contained in the defences, specifically because neither properly take fear into account as a characteristic which should be attributed to the reasonable person, and then, to a lesser extent, what impact theoretical principles, such as mechanistic and evaluative approaches, have on the role emotion plays in both defences (if any). It is clear that none of these, nor indeed the relatively new discipline of neuroscience, examined in the penultimate section of the article, can tell us about the effects of emotion on decision-making, reasoning, control and responsibility, nor can they provide an answer as to how emotions – fear especially – can be properly incorporated into both defences. Numerous emotion-based alternative solutions are disseminated, and, although no preference is expressed here, it is recommended, firstly, that fear should be more effectively incorporated into the loss of control defence and, secondly, that duress should include fear as a characteristic attributed to the reasonable person.

Banking solves the principal–agent problem with incentive contracts which assume a Homo Economicus representative agent. However, professions can solve the principal–agent problem by assuming a 'Reasonable Person' representative agent, from tort law, who reliably tells the truth about hidden action. We describe a non‐virtuous circle in finance, which is a negative feedback loop between motivation crowding out arising from incentive contracts, and the subsequent need to offer incentive contacts because agents change from the Reasonable Person to Homo Economicus. We prescribe less reliance on incentive contracts in the practice of finance, and on Homo Economicus in the theory of finance. [ABSTRACT FROM AUTHOR]

The revised Common Rule adopts the reasonable person standard to guide research disclosure. Some members of the research community contend that the standard is confusing and ill-suited to the research oversight system. Yet the revised rule is not as radical as it might seem. During the 1970s, judges started using the standard to evaluate negligence claims brought by injured patients who said doctors had failed to obtain informed consent to the harmful procedures. In its influential Belmont Report, the National Commission recommended application of a “reasonable volunteer standard” to guide IRBs evaluating research disclosures. Evidence also suggests that IRBs often invoke the reasonable person standard in deliberations about consent forms. But past application of the standard has been informal and uneven. Robust application of the reasonable person standard will require researchers and IRBs to learn more about what ordinary people want and need to know about the studies they are invited to join. Input from people with personal experience as study participants could be particularly useful to this effort.

Among various kinds of disclosures typically required in research as well as in clinical scenarios, risk information figures prominently. A key question is, what kinds of risk information would the reasonable person want to know? I will argue, however, that the reasonable person construct is and always has been incapable of settling this very question. After parsing the nebulous if not "contentless" character of the reasonable person, I will explain how Western courts have actually adjudicated cases of "negligent nondisclosure," that is, cases in which patient-plaintiffs allege that their informed consent rights were violated by the failure of their health providers to inform them of reasonably foreseeable risks that subsequently materialized. To support my argument, I will scrutinize the landmark decision by the United Kingdom's Supreme Court in Montgomery v. Lanarkshire Health Board and, in particular, Justice Brenda Hale's concurrence.

In Title VII sexual harassment jurisprudence, U.S. courts use a 2-prong subjective-objective test to determine the viability of a sexual harassment claim: The complainant must show that the employer's conduct was unwelcome and sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment because of the complainant's sex from both the complainant's perspective (subjective prong) and a reasonable person's perspective (objective prong). This online study used a diverse national sample (361 MTurk Community Members) to investigate whether people apply the objective prong in a uniform manner, as the law assumes, or show predictable differences. Participants read a vignette about a female interviewee's allegations of sexual harassment following from severe, mild, or no sexual objectification by a male interviewer during a job interview. The interviewee claimed that she was either harassed or not by the interviewer during the interaction, as well as claiming to enjoy or reject sexualization. Participants made judgments about whether the interviewer's behavior was sexually harassing from the interviewee's and a reasonable person's perspective. Overall, participants' sex and enjoyment of sexualization moderated their judgments of sexual harassment when considering the situation from both points of view, demonstrating that there is no convergence on a unified standard for evaluating whether specific behavior is sexually harassing. Drawing comparisons to obscenity law, we argue that the use of data to form social fact evidence may help decision makers in hostile work environment cases to apply a more uniform understanding of what is hostile and abusive. (PsycINFO Database Record (c) 2018 APA, all rights reserved).

When The Ad Hoc Committee of Harvard Medical School to Examine the Definition of Brain Death began meeting in 1967, I was a graduate student, with committee member Ralph Potter and committee chair Henry Beecher as my mentors. The question of when to stop life support on a severely compromised patient was not clearly differentiated from the question of when someone was dead. A serious clinical problem arose when physicians realized that a patient's condition was hopeless but life support perpetuated body function. Thus, the committee stated that its first purpose was to deal with the burdens on patients and families as well as on hospitals and on patients needing hospital beds occupied by comatose patients. They intuited the strategy of "defining" these patients as dead, thus legitimating treatment stoppage. They noted that this would also serve a second purpose. Although the dead donor rule had not yet been clearly articulated, they claimed that defining patients as dead would also address controversy over obtaining organs for transplant. My mentors' discussions related to my interest in the intersection between questions primarily of medical fact (When has a human brain irreversibly ceased functioning?) and nonmedical questions of social policy (Should we treat individuals with dead brains and beating hearts as dead humans?). It quickly became clear that most committee members did not appreciate the interplay of these questions.

Police custody activates important legal safeguards. To determine custody, courts examine objective conditions and ask whether a “reasonable person” would feel free to leave while being questioned. In Study 1, student participants were either interviewed or interrogated about a staged theft they believed to be real. Interviews and interrogations embodied specific factors considered noncustodial or custodial, respectively. Observers then watched videos of these sessions. Participants in interviews did not feel significantly freer to leave than those in interrogations, though observers did make this distinction. In Study 2, some participants were explicitly pre-advised of their freedom to leave. The advisement induced participants to report they were free to leave as an objective matter but did not significantly affect their subjective feelings of freedom. In both studies, the actor–observer divergence vanished when observers imagined themselves from the actor's perspective. These results challenge legal assumptions about custody and suggest lines of future research.

This article compares two models of discharge for repudiation. The first – termed the “mirror image model” – has come to the fore only in recent years. It treats the applicable principles as the mirror image of those that govern discharge for failure to perform a contractual term. Under the second model – the “differentiated model” – repudiation is analysed in terms of various criteria that respond to conceptual diversity within the basis for discharge. The two models diverge, at the heart of the repudiation doctrine, when the issue is whether a reasonable person would regard the promisor as having refused to perform the contract. It is argued that the differentiated model is the better model, and also the preferred view of the common law.

One of the significant modifications to the Common Rule is the requirement that prospective participants are given information sufficient for a “reasonable person”. However, there is limited research on what types of information patients, caregivers, and providers consider “key information”. Although certain aspects of informed consent (IC) may be considered standard, considering individualized needs and preferences of patients is necessary for patient-centered consent. In the current study, we qualitatively examined the specific types of information that patients and caregivers involved in hematopoietic cell transplantation (HCT), as well as their providers, believe are important and necessary as part of the IC process in order to make a decision about participating in clinical research; and further, how these perspectives are aligned. Our findings suggest opportunities for improving the IC document and process by emphasizing information of importance to patients such as the benefits to others and contributions to science that are associated with participation in clinical research. Further, increasing patient engagement during the IC process may enable providers to streamline information that is aligned with patient information needs and preferences.

The reasonable man is the best known, but not the only, legal construct to be born into the nineteenth-century common law. This article introduces the man’s siblings - including those from the areas of trust law, criminal law, contract law, and intellectual property law (both patents and trademarks). The fact that some of these ‘men’ changed the law is not controversial this research further highlights that while several of these came to life in that century, only some had a significant role into the twentieth century. Those that did are tied to the foundations of our society through their role in facilitating innovation and consumer protection. The argument is that it was the constructs’ nature and their capacity to accommodate public policy issues that enabled the vitality of the ‘reasonable person’ (negligence) and the ‘person skilled in the art’ (patents).

ObjectiveIn approximately half the states in the USA, and more recently in the UK, informed consent is legally defined as what a reasonable patient would wish to know. Our objective was to discern the information needs of a hospitalised, ‘reasonable patient’ during the informed-consent process.DesignWe performed a cross-sectional study to develop a survey instrument and better define ‘reasonable person’ in relation to informed consent in a hypothetical scenario where an invasive procedure may be an option.SettingA 10-question survey was administered from April 19 through 22 October 2018 to three groups: student nurses (n=76), health professions educators (n=63) and a US national population (n=1067).Primary and secondary outcome measuresThe primary outcome measure was the average intensity, on a 5-point scale, by which survey groups wished to have each of 10 questions answered. The secondary outcome was to discern relationships between survey demographics and the intensity by which participants wanted an answer.ResultsDespite substantial demographic differences in the nursing-student group and health-professions-educator group, the average intensity scores were within 0.2 units on nine of 10 questions. The national survey revealed a strong desire to have an answer to each question (range 3.98–4.60 units). It showed that women desired answers more than men and older adults desired answers more than younger adults.ConclusionsBased on responses to 10 survey questions regarding wishes of people in a situation where an invasive procedure may be necessary, the vast majority want an answer to each question. They wanted to know about all treatment options, risky drugs, decision aids, who will perform the procedure, and the cost. They wanted their advocate present, periodic review of their medical record, a full day to review documents and expected outcomes and restrictions after the procedure.

An essential element of the tort of negligence is the duty of care, which is measured by the objective standard of a reasonable person and does not take into account a defendant’s personal characteristics. In Dunnage v Randall, the Court of Appeal was tasked with deciding whether a person’s mental illness should be considered when defining the appropriate standard of care. The court held that the deceased, an undiagnosed paranoid schizophrenic who set himself on fire, was subject to the objective standard, breached his duty by failing to act with reasonable care and was therefore liable for the burns his nephew sustained while attempting to prevent the incident. The court further found that a defendant can only escape liability for negligently caused injury if their mental illness entirely eliminates responsibility, thus articulating a strict approach towards the liability in tort of persons suffering from mental illness. As this comment will discuss, the Dunnage decision is a handy illustration of the basic tenets of the tort of negligence, revealing the policy considerations at play and questioning the underlying rationale of the tort law regime.

U.S. constitutional tort law enables individuals to recover money damages in civil suits against government officials and employees whose job-related actions violate their constitutional rights. Such legal accountability closely relates to professional accountability because liability for damages depends on whether the officials or employees violated “clearly established … constitutional rights of which a reasonable person” in their positions “would have known.” Municipalities face financial liability in constitutional tort suits when their policies, including failure to train their employees, directly cause breaches of individuals’ constitutional rights. State and local government contractors involved in “state action” are also potentially liable for their constitutional torts. However, in a series of decisions in the 2000s, the Supreme Court has weakened constitutional tort law as a mechanism for securing accountability by making it more difficult or even impossible for those alleging infringeme...

Judges apply law to facts. While this‘umpire’ description of judicial decision-making is rhetorically (and often politically and publicly) attractive, it is of course a very incomplete account of judicial decision-making.1 Judges frequently experience factual ‘gaps’ they need to fill in order to reach a decision. Judge Richard Posner has recently suggested this is a very significant problem facing judges in the twenty-first century as the technological complexity of cases before courts exponentially increases.2 The judiciary, the legal profession, and the academy have failed to respond to the challenges of filling ‘gaps’ in the factual record, through the use of extra-legal knowledge from disciplines outside the law.3 Adjudicative facts,4 presented by the parties and admitted in accordance with the rules of evidence, are sometimes (and perhaps often) simply not enough to enable a judge to reach a decision. Legal standards, for example, the ‘reasonable person’ or the ‘best interests of the child’, may incorporate broad judicial discretion which requires judges to apply wider understandings of the nature of the world and society and how human beings behave. Adjudicative fact evidence may not have meaning without the application of a ‘lens’ or framework of broader knowledge (through expert evidence or knowledge of other disciplines).5 Judges may be unable to evaluate the veracity of forensic expert evidence6 without an understanding of whether there is actually a scientific basis for the relevant forensic claims; what processes must be followed to ensure the reliability of forensic testing; and what cognitive impact the particular ways of presenting forensic evidence to judges and juries may have on ultimate decision-making.7 The advent of the internet and social media means knowledge can be rapidly and extensively disseminated and accessed across the world. Yet, paradoxically, despite this the relationship between the law and knowledge from other disciplines, including science and social science, is at best uneasy and at worst counter-productive to just outcomes. We argue that the silos around law and other academic disciplines need to be broken down.8

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; graduated sanctions for repeat offenders; and tolerance of self-interestedness in markets.

Montgomery v Lanarkshire Health Board concerned a negligent non-disclose of certain risks involved in natural birth. The Supreme Court departed from Sidaway v Bethlem Royal Hospital, which formerly governed negligent risk disclosure. A new test was adopted: risks that are material must be disclosed, the materiality of a risk to be decided by reference to a reasonable person in the patient's position, or where the medical professional should be reasonably aware a particular patient is likely to attach significance to that risk. The Court emphasised risk disclosure practices must focus on what the patient wants to know. Yet the Court's portrayal of this change as a development of Sidaway is questionable. The decision is problematic in its engagement with precedent, the new test's future implications and statements regarding therapeutic privilege. Despite rejecting Bolam v Friern Hospital Management Committee's relevance to risk disclosure, this case is likely to remain relevant.

The paper aims to determine the situations when the air carrier is liable for the transmission of COVID-19 in the course of air transport. It must be emphasized here that the carrier's liability results from bodily injury or death that are caused by an accident on board an aircraft or during the operations of embarking or disembarking. Accordingly, in this paper, we addressed if the transmission of COVID-19 an ‘accident’ within the Conventions' meaning and the period of air carrier's liability for passengers' contraction of COVID-19, taking into consideration the exoneration of air carrier's liability in COVID-19 cases. In addition, this paper will study the scope of the safety measures as required by ICAO to prevent the spread of COVID-19 and therefore protect the passengers' safety. In our opinion, we found that the estimate is left to the judge because the assessment of this matter is based on an objective criterion based on the reasonable person test and the fact of each case.

In 2017, federal officials issued a revised version of the Common Rule, the federal regulations that govern much of the human subject research conducted in the United States. Two provisions on information disclosure have reportedly provoked confusion among researchers and people responsible for research oversight. These provisions incorporate the familiar and foundational legal concept known as the reasonable person standard, applying this to research disclosure. Although other, long-standing Common Rule provisions require reasonableness judgments, the new provisions differ in that they require reasonableness to be judged from the ordinary person's perspective instead of the perspective of scientists, clinicians, and other experts generally involved in designing and reviewing human studies.

In March 2015, the Supreme Court published its decision in Montgomery v Lanarkshire Health Board, a case involving the failure to warn a pregnant diabetic woman of the risk of shoulder dystocia and the possibility of having a caesarean section to avoid this risk. The risk materialised and the baby suffered oxygen deprivation. The lower courts had applied the test for the standard of care that had been in place since 1985, which has been criticised for protecting doctors not patients. The Supreme Court has introduced a new, autonomy-based, patient-centred standard. This article examines the case and explains the importance of the change for future midwifery practice. When disclosing risks, midwives must identify what a reasonable person in the woman's position, with this woman's specific characteristics, would consider a significant risk. They could be held liable for non-disclosure even if the woman does not ask about specific risks.

In sexual harassment law scholarship, it is often argued that the reasonable person standard should give way to a reasonable victim (woman) standard. Yet, this latter standard may unintentionally invite homophobic employees to attempt to use a reasonable homophobe standard to charge gay supervisors with harassment merely for being openly gay at work. In response, I argue that we currently act on an unjustifiable distinction whereby we treat sexuality behavior (behavior that indicates one's sexuality) as necessarily sexualized only for GLBTQ behavior. By disallowing this discriminatory treatment, we can preserve the reasonable victim standard and undermine the homophobe's warrantless charges.

In March 2014, the New South Wales Government dramatically increased penalty notice amounts for a number of summary offences. The fine increases were part of the Government's alcohol- and drug-fuelled violence initiatives, introduced in response to recent 'one-punch' homicides. This comment examines the use of penalty notices, or 'on-the-spot' fines, for the minor offences of offensive conduct, offensive language and the continuation of intoxicated and disorderly behaviour following a move-on direction. It considers the potential impact of these new fines on vulnerable and minority groups, particularly Aboriginal Australians. The comment questions whether police, as opposed to judicial officers, are the appropriate arbitrators for complex (albeit minor) offences that involve ill-defined elements such as offensiveness, community standards and the reasonable person test. It also asks whether these measures will be effective in fulfilling their stated aim to decrease alcohol-fuelled violence.