Benjamin Zipursky, ‘Reasonableness In And Out Of Negligence Law’

The law’s use of the terms ‘reasonable’ and ‘unreasonable’ are legion and notorious. Indeed, the law’s seemingly carefree attitude in throwing around these terms has often served Legal Realists and their descendants well in their effort to depict legal language as simply a shell through which actors exercise the widest sort of discretion to select their favored outcomes or policies. Conversely, ambitious agendas from philosophers and economists have often found that ‘reasonableness’ provides a readily available anchor in the positive law for their normative theories. Work by moral and political philosophers devoted to analyzing ‘the reasonable’ and work by economists, decision theorists, and game theorists on rationality understandably turn the law’s use of ‘reasonableness’ into a magnet for legal theory. In these respects, ‘reasonableness’ might be seen as the third ‘r’ of legal theory. Like ‘rights’ and ‘responsibility’, ‘reasonableness’ is beloved by legal theorists and equally beloved by the skeptics who spend their time skewering those theorists … (more)

Benjamin C Zipursky, ‘Reasonableness In And Out Of Negligence Law’. 163 University of Pennsylvania Law Review 2131 (2015).

First posted 2015-09-17 15:13:02

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