Murder and the Reasonable Man: Passion and Fear in the Criminal Courtroom

By Cynthia Lee | Go to book overview

8
The Elusive Meaning of Reasonableness

AFTER THE SEPTEMBER II ATTACKS on the World Trade Center and the Pentagon, in an effort to tighten security, Congress passed legislation requiring that security screeners at U.S. airports be U.S. citizens employed by the federal government.1 According to the Washington Post, seventeen hundred federal screeners were hired as of May 1, 2002.2 The overwhelming majority of the newly hired employees were White, two-thirds were male, 58 percent had college degrees, and 60 percent had military backgrounds. Commenting on the new airport security personnel, John Magaw, former Undersecretary of Transportation for Security, told the Washington Post, “They look like America.”3

Actually, the new screeners do not look like America. America is not a place where the overwhelming majority of people are White males with college degrees and military backgrounds. When jurors are instructed to compare the defendant's beliefs or actions to those of the Reasonable Person, they too may imagine the Reasonable Person as well-educated, White, heterosexual, middle-class, and male, even though this image may not be an accurate reflection of the average or ordinary person who lives in America.4

Even though we live in a heterogeneous society with peoples of different cultural and religious backgrounds, different income levels, and different outlooks on life, the law assumes the existence of a typical or average person whom it calls the Reasonable Person. One example of this is reflected in Guido Calebresi's description of the Reasonable Man in tort law as “the man who takes the magazines … home and in the evening pushes the lawn mower in his shirt sleeves.”5

Nancy Ehrenreich deconstructs this image of the Reasonable Man, arguing that the man in his shirt sleeves conveys a message of mediation, but in fact excludes and renders invisible certain viewpoints.6 Ehrenreich explains how the image conveys a message of mediation:

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Murder and the Reasonable Man: Passion and Fear in the Criminal Courtroom
Table of contents

Table of contents

  • Title Page iii
  • Contents vii
  • Acknowledgments ix
  • Introduction 1
  • Part I - Crimes of Passion (The Doctrine of Provocation) 15
  • 1: Female Infidelity 17
  • 2: Unreasonable Women, Gay Men, and Men of Color 46
  • 3: Gay Panic 67
  • 4: Culture and Crime 96
  • Part II - Crimes of Fear (The Doctrine of Self-Defense) 125
  • 5: An Overview of the Doctrine of Self-Defense 127
  • 6: Race and Self-Defense 137
  • 7: Race and Police Use of Deadly Force 175
  • Part III - Rethinking Reasonableness 201
  • 8: The Elusive Meaning of Reasonableness 203
  • 9: Toward a Normative Conception of Reasonableness 226
  • 10: The Act-Emotion Distinction 260
  • Conclusion 276
  • Notes 279
  • Bibliography 349
  • Index 365
  • About the Author 371
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