From: Scott Brickner <sjb@universe.digex.net>
Date: Wed, 24 Apr 1996 14:41:57 -0700 (PDT)
To: Black Unicorn <unicorn@schloss.li>
Subject: [NOISE] Reasonable people
In-Reply-To: <Pine.SUN.3.93.960423183933.10274D-100000@polaris.mindport.net>
Message-ID: <199604241648.MAA05361@universe.digex.net>
MIME-Version: 1.0
Content-Type: text/plain


Black Unicorn writes:
>On Tue, 23 Apr 1996, Scott Brickner wrote:
>> O.W. Holmes suggested out in "The Common Law" that the law delineates a
>> certain minimum level of competence in forseeing the outcomes of our
>> actions which all members of society are expected to attain.  We'll
>> hold you responsible for actions a "reasonable person" should have
>> avoided because of their danger.
>
>With you so far.  (Though Holmes is by no means the litmus by which
>today's legal world tests its process).

I know.  I've no formal legal training, and picked up "The Common Law"
to try to get an understaning of "lawyer-think", not to learn the law.
You use what you know, though.

>> As such, persons with limited
>> training in manipulating biological viruses are expected to avoid doing
>> so.  Individuals *with* training are expected to take adequate
>> precautions to avoid their spread.  I see no reason why electronic
>> viruses shouldn't be treated similarly.  If you're going to write them,
>> you *better* take steps to prevent their release, or you are liable for
>> the damages.
>
>Now you jumped the argument a bit.  There is a difference in holding
>someone to a reasonable standard generally, and defining several standards
>based on the experience of the person to which the standard is being
>applied.

I'd argue that I'm holding everyone to the same standard:  either know
the safe ways of handling viruses and follow them, or don't handle them
at all.  You seem to imply that I'd hold the untrained virus writer
harmless.  No way.  He's reckless and *should* be liable.  When one has
training, it's no longer reckless to simply handle (or write) the
virus, but disregarding safe procedures is negligent.

>This latter approach is often called (jokingly by some) the Objective
>Subjective Standard.  (Objective standard being without consideration of
>the view of the individual being judged, subjective including that view,
>and object subjective being the consideration of what the general class of
>individual would do without consideration of the individual's specific
>view).
>
>(What would a reasonable virus writer do is distinct from what a
>reasonable Bob Dwyer, Ph.D. Computer science might do is distinct from
>what a reasonable person might do).
>
>Many courts reject higher (or lower- there are arguments for this 
>too) standards of care for experts than for lay persons or other
>non-experts in tort cases, prefering to impose the "reasonable person"
>(Reasonable man for those of you who went to law school before 1985)
>standard universially.

I assume that a canonical example of the lower-standard case is the
"Good Samaritan" laws which reduce the liability of a trained person
performing rescue activities (e.g., administering CPR).

It seems to me that the "reasonable person" isn't the real issue
there.  Someone with training ought to be expected to do the "right"
thing.  If you're trained to administer CPR, and you do it *wrong*, you
shouldn't be absolved of liability -- you're negligent.  If you don't
know anything about CPR (except what you've seen on "Baywatch"), then
we're back to what a "reasonable person" should do.  If you're trained
and you do it right, but the person is still injured by your actions,
limiting your liability is society's way of encouraging you to use
your training for the common good.

In my mind, the difference between the objective standard and the
subjective one marks the difference between recklessness and
negligence.  If an objective "reasonable person" wouldn't do it, it's
reckless.  If a subjective "reasonable person" wouldn't, it's
negligent.

Perhaps these aren't the "legalese" usages of the terms, but it seems
reasonable to me.

>If there is interest, I will post exerpts of the arguments on both sides
>of this issue with the header [Noise].

I'd be interested.