[The following is a comment to a series of posts that appeared on Ralph Losey's e-Discovery Team Blog.]
A most
interesting blog series. I was unaware of Dan Ariely before reading these and
will look forward to seeing more on him in Ralph’s blog. The videos were so entertaining
and instructive I decided to research for more and read his book, The Honest Truth about Dishonesty.
§
Human
reasoning is in itself a provocative topic. But it offers special challenges
when viewed through the lens of the The
Reasonable Man standard. The question of its continued appropriateness as a
legal standard or paradigm is not simply a matter of a more politically correct
alternative. The reasonableness standard itself needs revisiting.[1]
§
Losey's
holistic alternative would include feelings and emotions, perceptions, and
intuitions. I can’t argue against that. These aspects of our humanness play
definite and even crucial roles in cognition and decision-making. However, they
float in a rudderless ship without Reason, as Losey displays by keeping it atop
his pyramid. Rationality is our source of continuity.
§
Victoria
Nourse also finds fault with The
Reasonable Man standard; she advocates a heuristic, or experience-based approach.
We are making a "category mistake" by using the metaphor of human
beings, she says.[2] Frankly, I am missing her point, unless she means
that The Reasonable Man is
synecdochic for rationality. Regardless, let’s speak plainly about what will
advance the cause, which is, I believe, to provide an avenue for redressing wrongs
-- civil and criminal – through fair and meaningful standards as applied to
decision-making.
§
The Reasonable Man was as much a product
of its era as will the “new” standard be a product of this era. Few were probably
surprised when the 1837 English case, Vaughan v. Menlove, Ct. of Common Pleas,
ENG established the “average man” as a legal standard. Reasonableness was all
the rage, after all, being a development of, and response to the Age of Reason
and the Industrial Revolution. Social, political, and philosophical norms were,
pretty much, up for grabs. Sound familiar?
§
To
paraphrase Thoreau: We are slaves to and of our technology.[3] It was Adolphe Quetelet (1796-1874), "one
of the century’s most singular and influential thinkers concerning the use of
social statistics,"[4] who developed the statistically average man –
the human bell curve – motivating formation of The Reasonable Man.
§
“Statistically
average” as a concept does society and justice an injustice, though. The new
normal distribution is flattened and skewed. Our standard deviations define us.
Globalization, bit coins, cyber crime, terrorism, Twitter, Facebook, and – you name
it – scatter us apart in the crowd. The Melting Pot has become a raging cauldron
churning its amalgam of diversity. Can we even imagine where this watershed in
history will deposit us?
§
One
of the greatest foibles of The Reasonable
Man – but so very human when you think about it -- was to not take into
account uncertainty. However, we might
be wise now to embrace its consequences.
§
I’m
reminded of the butterfly effect. Coined by Edward Lorenz, I first read about
it the 1988 book by James Glick, Chaos:
Making a New Science. The butterfly effect (sensitive dependence on initial
conditions) simply means that a small change in the beginning can lead to a
drastically different outcome.[5]
§
In
order to make good decisions, people need accurate and sufficient
information. Unfortunately, gathering
and filtering information for its accuracy and sufficiency is not always easy. The
only method I can think of is Bayes Theorem adapted to critical decision making,
since it is perhaps the best method of working backward from an event to the
most probable cause.[6]
§
I’m
not sure what we would call this new paradigm, but its formulation is
inevitable. The Reasonable Man was
the product of the thinking and writing by statistically minded scholars
absorbed in their own revolution of change.
Our
revolution of change requires different thinkers and writers. Those who may be
in the best position to at least write enlightened (and enlightening) treatises
on the subject of a new legal standard to replace The Reasonable Man are legal practitioners absorbed in e-discovery.
Where else is uncertainty and working backwards from an event more prevalent?
[1]
Dolores A. Donovan & Stephanie M. Wildman, Is the Reasonable Man
Obsolete?: A Critical Perspective on Self-Defense and Provocation, 14 Loy.
L. A. L. Rev. 435.
[2]
Victoria Nourse, After the Reasonable Man--Getting Over the Subjectivity
Objectivity Question, 11 New Crim. L. Rev. 33-50 (2008).
[3]
The exact quote is “Men have become the tools of their tools.” Walden - Chapter 1-C,
http://thoreau.eserver.org/walden1c.html (last visited Feb 26, 2014).
[4]
Primer: Adolphe Quetelet, Statistics, and
Social Physics Ether Wave
Propaganda, http://bit.ly/1fOvBJC (last visited Feb 24, 2014).
[5]
Butterfly effect - Wikipedia, the free
encyclopedia, https://en.wikipedia.org/wiki/Butterfly_effect (last
visited Feb 28, 2014).
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