A week ago I wrote the following and posted it to the university’s blackboard. But more recent conversations on the illusory nature of the RPP reminded me that it existed.
It’s Saturday night, which means right about now you’re probably asking “What is Sam thinking about?” I know I am.
So, if I had to name the word most-used at law school (“on-point” comes in second), it would far and away be: reasonable. And, to put this in the proper context, I guess I’m thinking of “at law school” as “in casebooks”. In any event, after using this word about eight score times, I thought it would be prudent to actually look it up in Blacks. I know that you have just as much a burning-loins desire as do I to know the According-to-Hoyle definition of the word, so I did the work for you.
1 a : being in accordance with reason
1 b : not extreme or excessive
1 c : MODERATE, FAIR
2 a : having the faculty of reason
2 b : possessing sound judgment <a reasonable man>
Forget the gender exclusive example and the convention of defining a word with the word (e.g., “Clearly, reasonable means something about reason.”), and just focus hard on the total lack of anything concrete.
American Oxford Dictionary:
1 (of a person) having sound judgment; fair and sensible
• based on good sense : it seems a reasonable enough request
• able to think, understand, or form judgments by a logical process
2 as much as is appropriate or fair; moderate
• fairly good; average
• (of a price or product) not too expensive
From Blacks (emphasis added to quotation):
“It is extremely difficult to state what lawyers mean when they speak of ‘reasonableness.’ In part the expression refers to ordinary ideas of natural law and justice, in part to logical thought, working upon the basis of the rules of law.” John Salmond, Jurisprudence 183 n.(u) (Glanville L. Williams ed., 10th ed. 1947)
Also, it should be noted that no fewer than 29 entries in Blacks start with the term “reasonable” or some approximation thereon. So, for a word that is “extremely difficult to state what lawyers mean” when they use it, they use it a lot.
Of all the didactic definitions above, my favorite and the one I consider to be most apt would be: “able to think, understand, or form judgments by a logical process” (and the joke here is that if you agree, know that in the actual dictionary the definition is termed archaic). Archaic or not, I think it is the most fitting definition for the capability the texts assume when they refer to a person who is reasonable and prudent, or when they are talking about reasonable doubt or reasonable use.
And it’s little surprise that the ability to “think, understand, or form judgments by a logical process” is pretty much spot-on to what we’re learning to do here (i.e., think like a lawyer). Also, if the average lawyer goes to school to possess the same characteristics as the reasonable person purveys, then isn’t the objective “what would a reasonable and prudent person do?” test really just a “what would a lawyer do?” test?
Well, I just can’t abide multiple definitions that so widely vary from a type of thought process, to a calculus of equity, to not very expensive. Luckily, I’ve come up with a definition specifically for the legal field: Henceforth, be it resolved that “reasonable” will mean “Job security for the lawyerly type.”
I think this definition is very dead-on. Consider:
Plaintiff: How do I know if I can drain this surface water off my property?
Lawyer: Ah, well we have a very specific standard that can help guide you. In fact my friend is a law professor and just published on that standard. Let me get him on the phone.
Law Professor: Great question. Let me throw some hypotheticals at you and if it’s still a foggy concept, I have a friend that just wrote an opinion on it for the Court of Appeals here in the city.
Judge: Mmmmm … I’ve reviewed the facts and have decided that what you are considering does not outweigh the harms that will be put upon the community.
Plaintiff: But how do I know where the brightline is between harm to the community and the utility of what I’m doing?
Judge: Yeahhhhhh … Um, this “brightline” you’re looking for is really a question for a lawyer. Actually, I know a couple if you need one.
One question remains (if by one you mean, you know, not one): If we are all here to learn how to be reasonable, and if determining what is reasonable is the province of the law, and if a major culpability standard of the law is the reasonable and prudent person test, then how does the RPP approximate the actions of the average citizen? Or if it does, why does the average citizen need dictation on what is reasonable? Or if they don’t, why’s everybody in the casebook always actin’ a fool?