Monday, July 12, 2021
I apologize for being a bit MIA these past weeks. We went on a family "vacation" (aka--I watched my kids in a different city where there was no daycare), and I came home with a head cold. But, I can now breathe out of my nose, so it is time to start blogging again.
Over the past few months I have blogged about the articles in the most recent issue of The Journal of Appellate Practice and Process. I saved the longest article for last--Judge Jon O. Newman's extensive look at the concept of Reasonableness. Judge Newman is a prolific scholar, and I was thrilled that we had a chance to publish something that he had written. I was even more thrilled when I read his piece. The article tackles a tricky question--what does "reasonableness" mean in the law. Consider this anecdote that Judge Newman uses to start his article:
The idea of exploring the concept of reasonableness first occurred to me during my years as a District Judge. I noticed that in a wide variety of cases, when I reached the critical portion of a jury charge, I frequently told the jurors that the applicable standard was “reasonableness” or its antonym “unreasonableness.” In criminal cases, I told them that conviction required proof beyond a reasonable doubt. In antitrust cases, I told them that agreements in restraint of trade were unlawful if they were unreasonable. In civil rights cases seeking damages for police searches, I told them to apply the standard twice: the homeowner had to prove that the police officer’s search was unreasonable, but, even if it was, the officer had a qualified immunity defense if the officer had a reasonable belief that the action taken was lawful.
The more I spoke the word “reasonable,” the more I wondered why the jurors never came back and asked, “Judge, could you explain exactly what you mean by ‘reasonable’?” Fortunately, they never asked.
Judge Newman identifies four different approaches to how appellate courts try to give meaning to the term reasonableness. Within each approach, he looks at three separate contexts, with "the hope that the resulting twelve sections will promote some understanding of what courts are not just saying, but actually doing in cases where 'reasonableness' is the applicable standard."
Of particular interest given current events is his discussion of use of unreasonable force in making arrests (pp. 39-44), in which courts have been instructed to use the "weighing metaphor," even though it is an imperfect instrument. I also enjoyed his discussion of reasonable doubt on pp. 4-11, which looks at reasonableness as a continuum. Judge Newman also looks at the difficult topic of agency constructions of statutes and whether those are "reasonable" (pp. 80-83).
In truth, the whole article is fascinating! He brings his 40+ years of experience as a judge, and his extensive law practice prior to assuming the bench, to provide much-needed insights into this difficult legal.