Stern on From Clapham to Salina: Locating the Reasonable Man @ArsScripta @LawLitJournal

Simon Stern, University of Toronto Law, has published From Clapham to Salina: Locating the Reasonable Man at 36 Law & Literature 391 (2024). Here is the abstract.

“The man on the Clapham omnibus” is an often cited but poorly understood name for the standard of reasonable care in tort. It originated in a 1903 decision in which this formula was used not to articulate a legal standard but to describe an average person whose views have no legal significance. This figure finds a cousin in another personification, as “the man who takes the magazines at home, and in the evening pushes the lawn-mower in his shirt sleeves.” Both formulations have complex histories that help to underscore their inaptness as descriptors for the standard they are used to represent. These two examples also help to show, more generally, why a personified standard (“the reasonable person”) tends to introduce problems that do not arise with a more abstract one (“reasonableness,” “reasonable care”). Many critics have shown that the “reasonableness” standard is susceptible to problems of bias and framing. Personifying the standard invites the inappropriate use of individuated figures with particular features (e.g., a bus rider from a London suburb) that only worsen these problems. This article traces the history of these two standards, tries to explain how they moved from descriptive to normative use, and then turns to problems with personified standards more generally, showing how some superficially appealing reasons for using a personified standard prove to be unpersuasive.

The full text is available by subscription.