The reasonable person test is a common thread that runs through the fabric of Anglo-American law. It has become such a common trope in legal discourse that it scarcely receives much attention in its own right. This Article analyzes one facet of the test that will yield significant benefits in understanding the subject as a whole: how we ought to go about determining which circumstances are relevant to the reasonable person inquiry. The Article will argue that the circumstances that ought to be part of the test will vary based on one’s underlying theoretical commitments: the reasonable person test is in reality a series of tests, albeit ones that share a common core. Which test is used will vary depending not just on the substantive law at issue but also on what underlying theory one believes animates a given field of law. By unpacking some of the details of the reasonable person test in these different fields, we will arrive at a better understanding of how the test works in practice.
Reasonable Persons, Reasonable Circumstances,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol50/iss3/6