Kevin Tobia (Georgetown University Law Center) has posted Reconstructing Reasonableness with Social Science, 75 DePaul Law Review 619 (2026) on SSRN. Here is the abstract:
The social science of legal decision-making often emphasizes judgment bias. That empirical project reflects the legacy of legal realism and grows in the shadow of law and economics, both of which embody skepticism about legal concepts. These theoretical influences encourage empiricists to “deconstruct” legal concepts by identifying illicit, improper, or pernicious influences on judgment. For example, empiricists demonstrate hindsight bias in judgments of reasonableness and recommend interventions to remove that bias. Identifying legal biases, their sources and remedies are critically important. But these are not the only social scientific questions one could ask of legal concepts. This Essay poses another: What is the concept of the “reasonable” that would remain after successful debiasing, and what can social science tell us about it.
This Essay begins by introducing legal theories of reasonableness and recent empirical studies about the concept. The empirical results count against the view that ordinary reasonableness reflects intuitive cost-benefit analysis or a demanding moral criterion. Instead, the results favor a lay notion of reasonableness as an intermediate standard, reflecting a hybrid of descriptive and prescriptive norms. At a broader level, this exercise serves as a case study on the relationship between legal concepts and empirical studies. Social science can bolster conceptual skepticism by identifying biases in judgment, but it can also enrich our understanding of legal concepts’ features.
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