Clarity2018 show
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Who is the reasonable person in modern times
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Clarity2018 show
- 1. The Reasonable Person Standard in Modern Times Cheryl Stephens CLARITY 2018
- 2. The Main Point: reasonable is merely average
- 3. The Main Point: reasonable is merely average 1. The mean or average 2. Entered law as a standard 3. We are only human 4. Average reader is just functional 5. Understanding our understanding 6. Use the science 7. My pet peeve: Big White/Sea to Sky
- 4. L'homme moyen: average man common man Adolphe Quetelet
- 5. Entry into law as a behavioural standard Vaughan v. Menlove (1837) An ordinary, prudent person; not of a particular intelligence or capacity for judgment And Blyth v. Company Proprietors of the Birmingham Water Works (1856)
- 6. Traditional standard evolved does not consider the particular person’s • reasonableness • character • intelligence does consider • circumstances • limitations.
- 7. Hindsight and afterthoughts The rearview mirror is always clearer than the windshield. Warren Buffett
- 8. I’m okay; you’re not. … perhaps, unsurprisingly, the reasonable person often turns out to bear a rather suspicious similarity to the judge. Mayo Moran, Rethinking the Reasonable Person
- 9. Are women reasonable? US Supreme Court 2018: Women, like all humans, are intellectual creatures with the ability to reason, consider, ponder and challenge their own ideas and those of others. Supreme Court of Canada 1990: the perspectives of women, which have historically been ignored, must now equally inform the ‘objective’ standard of the reasonable person in relation to self-defence.
- 10. What is new in modern times? Science! Data! Expert witnesses
- 12. We are only human, and with afflictions Cognitive biases lead to more effective actions in a given context, enabling faster decisions when timeliness is more valuable than accuracy.
- 13. Average person/Average reader 5=Adept 4=Competent 3=Proficient 2=Challenged 1=Struggling 0=Non-reader PIACC 52% of U.S. adults 16-65 13% U.S. adults
- 14. Thinking in a hurry or a panic Cognitive impatience: Skimming and scanning. No time to grasp complexity.
- 15. New challenge to reasonable standard Interspecies cognitive acts requires cross-species analysis: human with seeing eye dog or sniffer dog Cognition distribution is shared task orientation + agency + interaction dominance The task is well defined, and takes both agents to contribute to the outcome.
- 16. Does the reasonable person do this? It would take 76 days to read the standard terms and conditions of websites we use.
- 17. Average, reasonable people? US Supreme Court Chief Justice Roberts admits he doesn’t read the computer fine print Judge Posner admits he didn’t read boilerplate for home equity loan FTC Commissioner Noah Phillips agrees to online terms and conditions without reading them Professors of consumer law do not routinely read consumer contracts and disclosures. 57% said they rarely or never read contracts 48% said they rarely or never read required disclosures None always read them
- 18. The Ballad of Big White
- 19. Use the science Cheryl Stephens email@CherylStephens.com CherylStephens.com This presentation and a much fuller version are available at https://www.slideshare.net/CherylStephens Also see the audience profile article The Facets of the General Public as Audience https://www.dropbox.com/s/2u2cybl7c57u0tr/AudienceIssues.pdf? dl=0
Editor's Notes
- A Treatise on Man and the development of his aptitudes. His concern was defining the characteristics of ‘normal man’ and fitting the distribution around the norm. …A polymath (equally versed in the arts and sciences) and a polyglot (in addition to his native French, fluent in English, Spanish, Italian, German and Latin, in which he defended his doctoral thesis)… Belgian astronomer, mathematician, statistician and sociologist. The Bell Curve=normal distribution https://academic.oup.com/ndt/article/23/1/47/1923176
- The court may need to be informed by evidence of circumstances which bear on… the standard of the reasonable man in any particular case; but it is then for the court to determine the outcome, in those circumstances, of applying that impersonal standard. Healthcare at Home Limited v. The Common Services Agency [2014] UKSC 49
- The court may need to be informed by evidence of circumstances which bear on… the standard of the reasonable man in any particular case but it is then for the court to determine the outcome, in those circumstances, of applying that impersonal standard. Healthcare at Home Limited v. The Common Services Agency [2014] UKSC 49
- Mayo Moran, Rethinking the Reasonable Person (2003, Oxford Press) at 17 As quoted in letter of October 5, 2005 from Robert F. Bauer, Perkins Coie to Brad Deutsch, Office of General Counsel, Federal Election Commission Only in In the 1990 decision of R v Lavallee, the Supreme Court of Canada concluded that “the perspectives of women, which have historically been ignored, must now equally inform the ‘objective’ standard of the reasonable person in relation to self-defence.”
- Skim reading is the new normal. When the reading brain skims over texts, we don’t have time to grasp complexity.
- Richard Branson has dyslexia. Says he us just wired differently.
- The Supreme Court of Canada says, to be informed means to: know rights affecting legal processes know which rights apply to what is happening understand them be able to make informed choices be able to use them to take action in what we each consider our own best interests Standard should consider: Physical, medical, mental disabilities effect on cognition, memory, reading
- PIACC: 39% of U.S. adults with an Associate’s degree, 25% of those with a Bachelor’s degree, and 19% of those with more than a Bachelor’s degree have low literacy skills To learn more about the PIAAC: The international OECD website at http://www.oecd.org/skills/piaac, the U.S. Department of Education’s Institute of Education Sciences website at https://nces.ed.gov/surveys/piaac, and the PIAAC gateway website at http://piaacgateway.com. “If the dominant medium advantages processes that are fast, multi-task oriented and well-suited for large volumes of information, like the current digital medium, so will the reading circuit. As UCLA psychologist Patricia Greenfield writes, the result is that less attention and time will be allocated to slower, time-demanding deep reading processes, like inference, critical analysis and empathy, all of which are indispensable to learning at any age.” Ideas for America Internet Skim reading is the new normal. The effect on society is profound Maryanne Wolf neurosciences indicates, the acquisition of literacy necessitated a new circuit in our species’ brain more than 6,000 years ago. That circuit evolved from a very simple mechanism for decoding basic information, https://www.theguardian.com/commentisfree/2018/aug/25/skim-reading-new-normal-maryanne-wolf https://www.theguardian.com/commentisfree/2018/aug/25/skim-reading-new-normal-maryanne-wolf
- When the reading brain skims over texts, we don’t have time to grasp complexity. Cognitive impatience: inability to read with enough critical analysis to comprehend the complexity of thought and argument in more demanding texts.
- Cognitive impatience: inability to read with enough critical analysis to comprehend the complexity of thought and argument in more demanding texts. Dr Suzy J Styles @suzyjstyles Psycholinguist. Brain, Language & Intersensory Perception at Nanyang Technological University, Singapore. July 27, 2018 reporting on CognScience Conference: Mary Jean Amon presenting on distributed cognition (that is, sharing the job of cognition between, say, 2 people), and how to investigate it between species... Joint work with Zachariah Neemar & Louis Favela
- Braille, won’t fit through the mail slot; audio takes 4 hours
- http://www.abajournal.com/news/article/chief_justice_roberts_admits_he_doesnt_read_the_computer_fine_print/ http://www.abajournal.com/news/article/judge_posner_admits_he_didnt_read_boilerplate_for_home_equity_loan/ Sovern, Jeff, The Content of Consumer Law Classes III (June 27, 2018). Journal of Consumer & Commercial Law, Vol. 22, Forthcoming 2018; St. John's Legal Studies Research Paper No. 18-0014. Available at SSRN: https://ssrn.com/abstract=3203898 http://pubcit.typepad.com/clpblog/2018/09/does-an-ftc-commissioner-click-accept-without-reading-if-practically-no-one-reads-these-things-why-d.html Saturday, September 22, 2018 Does an FTC commissioner click accept without reading? If practically no one reads these things, why do we hold people to them? by Jeff Sovern Regular readers of this blog know that I collect instances of people agreeing to contracts without reading them. Among my examples: Chief Justice Roberts, Judge Posner, Hillary Clinton, and consumer law professors. Now I think we can add FTC Commissioner Noah Phillips to the list, though his remarks are ambiguous enough that I can't be certain. During a July hearing before the House Commerce Committee, about 2:17 in, Commissioner Phillips said, as best I can transcribe it: I hope in my own life and I hope that everyone in their own lives always make informed decisions. That's not always how we do things. I will admit to you I have repeatedly in the last few weeks clicked on any number of accept, accept, accept online. It is possible that all Commissioner Phillips meant was that he clicked accept without reading carefully enough to make an informed decision. But the way he said "accept, accept, accept" makes it sound as if he clicked "accept" without reading anything. And I certainly don't criticize him for not reading, if indeed he did not. But if even an FTC commissioner charged with protecting consumers doesn't read these things, why do we pretend everyone does? Posted by Jeff Sovern on Saturday, September 22, 2018
- Fillingham v. Big White Ski Resort Limited, 2017 BCSC 1702 http://www.courts.gov.bc.ca/jdb-txt/sc/17/17/2017BCSC1702.htm As a condition of use of the ski area and other facilities, the Ticket Holder assumes all risk of personal injury, death or property loss resulting from any cause whatsoever including but not limited to: the risks, dangers and hazards of skiing, snowboarding, tubing, skating, cycling, hiking and all other recreational activities; the use of ski lifts; collision or impact with natural or man-made objects or with skiers, snowboarders or other persons; travel within or beyond the ski area boundaries; or negligence, breach of contract, or breach of statutory duty of care on the part of Big White Ski Resort Ltd. and its directors, officers, employees, instructors, volunteers, agents, independent contractors, subcontractors, representatives, sponsors, successors and assigns (hereinafter collectively referred to as the “Ski Area Operator”). The Ticket Holder agrees that the Ski Area Operator shall not be liable for any such personal injury, death or property loss and releases the Ski Area Operator and waives all claims with respect thereto. Union Steamships Limited v. Barnes, [1956] S.C.R. 842; Mayer v. Big White Ski Resort Ltd., 1997 CanLII 4261 (B.C.S.C.), aff’d 1998 CanLII 5114 (B.C.C.A.); Dixon v. B.C. Snowmobile Federation, 2003 BCCA 174; and Dyck v. Manitoba Snowmobile Association, [1985] 1 S.C.R. 589.