Psychology, Department of


Date of this Version



Arizona State Law Journal 45:2 (2013), pp. 703–732.


First published by Arizona State Law Journal, Volume 45, Issue 2.


This article will consist of four main parts. Part I will review the historical and current Reasonable Person Standard. More specifically, it will discuss a brief history of the common law negligence standard leading to the current commonly used Reasonable Person Standard, review the current American Law Institute ("ALI") language of the Reasonable Person Standard, and briefly outline the three most common legal theorist conceptualizations of the negligence standard in order to provide a review of the current understanding of the negligence standard. Part II will then examine the importance of the jury and the limited instruction they are provided in negligence cases. I will review commonly used jury instructions to provide the context in which jurors are interacting with the standard. Part III will argue that it is important to consider a new perspective of the Reasonable Person Standard based on how juries actually interpret and apply the standard. I will also argue that the best way to understand the jury is by reviewing existing research and conducting new, systematic empirical research on how juries interpret and apply the Reasonable Person Standard. I will then examine a few empirical findings, primarily from the discipline of social psychology, to demonstrate the influence that human cognition may have on jurors' interpretation of the Reasonable Person Standard. Finally, Part IV will conclude the article by emphasizing the importance of systematically studying jurors' perceptions of the Reasonable Person Standard.

I. The Reasonable Person Standard: Its Origins, Current Formulation, and Academic Conceptualizations … A. Origins of the Negligence Standard … B. The Reasonable Person Standard According to the ALI … C. Academic Interpretations of the Negligence Standard … 1. Oliver Wendell Holmes, Jr.: The Importance of Foreseeability … 2. Cost-Benefit Analysis: The Hand Formula … 3. Applying Prevailing Community Norms

II. The Importance of Juries and Jury Instructions in Applying the Reasonable Person Standard … A. The Importance of the Jury … B. Influence of Jury Instructions

III. Understanding the Reasonable Person Standard from the Juror’s Perspective … A. Limitations on Systematic Evaluation: The Theory of Bounded Rationality … B. Dual Systems of Processing: Central Route vs. Peripheral Route Processing … C. Understanding Initial, Gut Reactions: The Importance of Heuristics … 1. Framing Effects … 2. The Outcome Bias … 3. The Hindsight Bias … 4. Counterfactual Thinking—A Helping Heuristic

IV. Conclusion: Will the Real Reasonable Person Please Stand Up?