Justice Antonin Scalia, noted for his scathing dissents, once opined, “If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: ‘The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,’ I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”
While I did not often agree with Scalia, and didn’t in that particular opinion, the “fortune cookie” analogy is not always far off the mark considering the wishy-washy standards applied by judicial decision makers. Yes, “The fortune you seek is in another cookie.”
In the law, one will invariably encounter standards that judges or juries are required to apply in order to reach “just” decisions. There are basic standards for applying the law to the facts of the case in the trial courts and then standards of review applied in the appellate courts when examining what happened in those trial courts. But there are so, so, many gray areas in the law that don’t conform themselves to a nice A + B = C result that require a judgment call. An educated guess, perhaps. Or sometimes little more than a blind stab in the dark in hopes of hitting some target, but a fair and proper target, right? (That’s a rhetorical “right?’)
Then again, there is also that phenomenon known as outcome bias, where decisionmakers decide and then conform the evidence to fit their decision – sounds a tad bit unfair or “unreasonable.” And yet, the concept of “reasonableness” is said to be the mainstay of our law and many of these legal standards incorporate that very word yielding such terms as the “reasonable person,” “reasonable-speaker,” reasonable-listener,” “reasonable aid,” “reasonable effort,” “reasonable anticipation,” “reasonable care,” and “reasonable doubt.” And conduct is deemed “reasonable” if it is “consistent with that of the prudent person in like circumstances.” But with that standard, we not only have to debate what is “reasonable,” we now have to debate what is “prudent,” or what would be “reasonably prudent?”
Such standards are supposed to accommodate all circumstances and uniformly fix any legal ailment, whether it is determining if someone reasonably thought their life was threatened to have exercised self-defense, or what constitutes extraordinary and unusual stress to a “reasonable highway worker” to be compensable under workers’ compensation. All similar puzzles should be solved the same way. What is equitable for one is equitable for all similarly situated. The law should be the same for everyone.
Standards supposedly allow stability and predictability for potential litigants so they can evaluate whether any potential legal controversy is a worthwhile endeavor. Will it result in the desired outcome or be a frivolous, and expensive, chase through the scared halls of justice? Or in criminal law, uniform application of the standards resulting in uniform penalties not only serve to treat everyone that is prosecuted equally, but the predictability of the outcome supposedly serves as a deterrent to criminal behavior. Nice to have a good idea of the result of your conduct ahead of time. You would hope that your attorney could accurately advise you of such, instead of finding yourself engaged in a giant crapshoot. And since we’re into definitions, “crapshoot” = “a risky and uncertain venture.”
Yet ask anyone, yes absolutely anyone, except perhaps a judge, and I think they will tell you that the law is not equal for everyone. It favors the rich over the poor, the majority over the minority, non-sentient corporations over living, breathing individuals, and people over all other life forms. And criminal legal procedure favors the prosecution over the defendant. You have to be a pretty lousy prosecutor to lose a case, especially since you get to pick which cases you’ll prosecute to begin with.
And these multitudinous standards are magically said to be “objective.” But how is that really possible, and just what do these terms really mean? Could the so-called reasonableness standards be just archaic, mythical devices entrenched by thousands of legal precedents? “Legal fictions,” if you will, to achieve and support virtually any decision a jury, a judge or panel of judges makes, “reasonable” or not? Reasonable in whose eyes? Your eyes? Mine? Reasonable is such a weasel-word.
A “legal fiction,” by-the-way, is defined as: “Believing or assuming something not true is true. Used in judicial reasoning for avoiding issues where a new situation comes up against the law, changing how the law is applied, but not changing the text of the law.” The “reasonable person” has been said to be a “hypothetical,” as opposed to a “fiction,” but then who gets to define the hypothetical reasonable person? It seems more to me to be a phantom assumed to actually exist.
Quoting court decisions and Black’s Law Dictionary, reasonable is said to be: “Just; proper. Ordinary or usual. Fit and appropriate to the end in view. Having the faculty of reason; rational; governed by reason; under the influence of reason; agreeable to reason. Thinking, speaking, or acting according to the dictates of reason; not immoderate or excessive, being synonymous with rational; honest; equitable; fair; suitable; moderate; tolerable.”
Wow, seems to be a wide berth between “equitable” and “tolerable,” and “appropriate to the end in view” sounds like a forced contrivance, whose view? But hey, that’s just me talking. And it is duly noted that the architects of these standards ordain that a “reasonable person” “is one who gives due regard to the presumption that judges act with honesty and integrity and will not undertake to preside in a trial in which they cannot be impartial.” Humm, so those writing the rules get to declare they are objective and impartial and demand we agree, otherwise we are unreasonable.
In addition to rambling through the gray pastures of the dictionary, stringing chains of circular non-speak together, i.e., “reasonable means governed by reason,” which means nothing at all, courts tack on that great adjective, “objective.” Reasonableness standards are supposedly objective. And my favorite definition of “objective,” and the one I believe to be the most accurate is “having reality independent of the mind.” This, of course, means not subject to personal biases or as Merriam-Webster states: “expressing or dealing with facts or conditions as perceived without distortion by personal feelings, prejudices, or interpretations.” But MW added that subjective word “perceived” spinning us down another corridor of deception, because even our minds can lie to us about what we are perceiving, or form it into the shape we desire.
Black’s Law Dictionary would say that an objective standard is a “legal standard that is based on conduct and perceptions external to a particular person,” as opposed to a subjective standard “that is peculiar to a particular person and based on the person’s individual views and experiences.” Really? Our programming starts the day of our birth, and we are constantly told how the world is, what it is we are perceiving, what to like and what to hate, what is legitimate and what is unauthentic, how one should feel or not feel, when to have empathy and when to ignore the needs or suffering of others. Our minds are filled with innumerable prejudices that become so inherently ingrained that we no longer see them as being biases.
Yet, the legal system would have us believe that all of this social programming has absolutely no effect on how a case will be judged, how a verdict or judgment might be reached, or what the assessment of remedies or penalties will be, by people magically commanded to be objective and set aside all of their life experiences when deciding the outcome of your legal entanglement. Yes, the legal system, created by humans and all of their prejudices, supposedly being the bastion of objectivity with those sitting in judgment possessing that detached, dispassionate, external “God’s eye view” or “view from nowhere,” transcending any subjective interference as Plato might pontificate, will dole out justice equally on the basis of reasonability. And basically, that’s Bullshit, with a capital B. If it wasn’t Bullshit, there would no market for attorneys that are taught how to strategize and manipulate, how to argue, how to spin, and how to select venues, judges, and jurors based upon their very subjective prejudices. Wordsmithing is a skill taught to attorneys so they may shape outcomes, not based upon what’s “reasonable,” but based upon what favors their client’s preferred outcome, the client’s subjective view of justice.
The existentialists would certainly have a great laugh over this concept of objectivity. For there really is no way for a human to exist other than through their subjective and continuing contact and experience with the world. Thoughts do not exist independently of circumstances and context. But you don’t have to be an existentialist to see how the legal system essentially pits the subjective, particular views of those sitting in judgment against the subjective, particular views of those being adjudicated – hypothetical reasonableness notwithstanding.
I would be remiss if I did not mention another favorite legal standard, the abuse of discretion standard. This standard is employed by an appellate court examining if the trial court abused its considerable discretion with a ruling on a particular controversy like the admission or exclusion of evidence. An abuse of discretion by the trial court “occurs when a trial court’s ruling is clearly against the logic of the circumstances and is sufficiently arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration.” That’s a mouthful. And, “If reasonable minds can differ about the propriety of the trial court’s ruling, there was no abuse of discretion.” “Reasonable minds?”
So how does this play out if several judges in an appellate court panel decide there was an abuse of discretion, and the remainder decide there was not. Well, if the judges all agree, the standard works. If the majority of the panel, the most judges, decide there was no abuse of discretion, then the standard works. But if the majority of the judges decide there was an abuse of discretion, and a minority decide there was not, the standard fails because “reasonable minds,” and surely the judges have “reasonable minds,” have, in fact, differed and there can be no abuse of discretion. Yet the appellate court decision that there was an abuse of discretion stands, so “reasonable minds differing” creates an absurd result that ignores the court’s own standard. That might seem unreasonable.
Irregardless of my pontifications, for all of these reasonableness standards, how many court decisions, in your own view, just seem to defy “reason” and exhibit great bias? Good luck if you find yourself in that objective reasonable crapshoot called a court of law, for “Person who eats fortune cookie gets lousy dessert.”
Photo: I found the scales on the Internet n the public domain and could find no other attribution. I added the text – a favorite quote I came across in a case while studying property law in law school.