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105 Cornell L. Rev. Online 81 (2020)
The Nature of Reasonableness

handle is hein.journals/clro105 and id is 81 raw text is: ESSAY THE NATURE OF REASONABLENESS Alan Calnant Though the notion of reasonableness dominates Anglo- American law, its meaning has been clouded by traditional conceptual analysis. This Essay argues that greater clarity can be gained by taking a scientific approach to the subject, exposing the natural foundations beneath the concept's varied interpretations. INTRODUCTION Reasonable legal minds agree that reasonableness is one of the foundational concepts of American law, infiltrating everything from administrative, corporate, and constitutional law to crimes, torts, and contracts.' Yet the concept's importance and prevalence have not necessarily bred clarity. In fact, a recent flurry of analytic interpretations has only clouded the term's meaning.2 While some scholars say reasonableness is a prescriptive standard,3 others believe it describes existing community values,4 and still others see it as a combination of the two.5 This split is deepened by t Professor of Law, Southwestern Law School. Many of the ideas in this Essay were inspired by the groundbreaking work of neuroscientist Antonio Damasio, though any unreasonable interpretations or applications remain mine alone. On the back end, the Essay was greatly enhanced by the diligence and professionalism of the Cornell Law Review Online. 1 See Brandon L. Garrett, Constitutional Reasonableness, 102 MINN. L. REV. 61, 69-70 (2017) (recounting the concept's significance and use within multiple legal fields); Fr~d&ric G. Sourgens, Reason and Reasonableness: The Necessary Diversity of the Common Law, 67 ME. L. REV. 73, 74-75 (2014) (same). 2 The latest entry appeared just last year in the Yale Law Journal Forum. See Alan Z. Rozenshtein, Fourth Amendment Reasonableness After Carpenter, 128 YALE L.J.F. 943 (2019). 3 See Alan D. Miller & Ronen Perry, The Reasonable Person, 87 N.Y.U. L. REV. 323, 326 (2012) (We put forward and defend the argument that normative definitions [of reasonableness] are categorically preferable to positive definitions because the latter are logically unacceptable.). 4 See Kevin P. Tobia, How People Judge What is Reasonable, 70 ALA. L. REV. 293, 299-300 (2018) (describing this view of reasonableness as a search for the statistically average characteristics of people within a community). 5 See id. at 296 (arguing that [r]easonableness is best understood as a

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