When the Coffee Starts to Burn
An Essay on the Reasonable Person
Content Warning: sweet old lady gets badly scalded by hot coffee; resulting corporate apathy.
“I tried being reasonable. I didn’t like it.”
-Clint Eastwood
1.
Are you a reasonable person?
How would you know?
It’s probably important to find out. In practically every state, you can be dragged before a court and held liable to your coworkers, house guests, customers, lovers, or even strangers, just for being unreasonable. It’s not an exaggeration to say that a huge chunk of the laws governing our behavior in America boil down to “be reasonable, or else.”
If a cop kicks in your door and kills you, they get to go back to work the next day if they had a reasonable suspicion you might be violent. If you get sexually harassed at work and your employer does nothing, it’s not enough that you were offended, it only matters if a reasonable person would also agree that the harassment was severe. If you commit a crime because someone threatened you, you’re probably going to jail, unless “a person of reasonable firmness in his situation would have been unable to resist” the threats. Wouldn’t it be nice if we were all so reasonably firm?
Someone can kill you, if they were reasonably provoked. Someone can rape you, if they make a reasonable mistake. Someone can con you out of your life savings, unless your reliance on their lies was reasonable. The state can take away your child, if you’re not a reasonable parent.
It would be nice, then, if a concept so central to our lives was an objective one, right? But we’ve tried that: the alternative to fuzzy, ill-defined reasonableness is a bunch of bright line rules. Those are plenty objective, but they over-correct in the other direction. They are incredibly strict to most modern sensibilities, and they often result in manifestly unfair outcomes. Drug possession is a clear example of a bright line rule: it doesn’t matter why you have that kilo of cocaine, or what the context was, or who you are (well, almost). Hell, the entire War on Drugs is a nation-wide experiment in bright line rules. That experiment is a lot of things, but it’s definitely not a shining example of fair outcomes.
Objective standards are pretty damn seductive, though. They’re simple. They prioritize clear definitions of good and bad, right and wrong. It’s no surprise, then, that we’ve tried really hard over the past couple hundred years to come up with an objective definition of “reasonable.” (For those interested, some arguments by people smarter than me as to why this has been so hard, and why we keep trying: 1, 2, 3. My argument in this essay is that it would do us a lot of good to stop trying, but we’ll get there.)
Here’s the best our legal system has come up with so far: to be reasonable, act like a reasonable person would. Simple!
Who’s this “reasonable person”? Well, he (and it’s usually a “he”) is a completely hypothetical, ostensibly-if-not-statistically average person who takes the kind of precautions an ordinary person would take, cares about the kind of things an ordinary person would care about, and generally maps to the center of public opinion. That’s the theory. From The Many Faces of the Reasonable Person:
“The reasonable person (once known as the ‘reasonable man’) is the longest-established of ‘the select group of personalities who inhabit our legal village and are available to be called upon when a problem arises that needs to be solved objectively.’ These days, partly because of his runaway success as the common law’s helpmate, he has neighbours as diverse as the ordinary prudent man of business, the officious bystander, the reasonable juror properly directed, and the fair-minded and informed observer.”
Cute.
A gentle reminder, though: you can have police officers take your stuff, throw you in prison, or even kill you, if you don’t behave as one of these “reasonable people” should.
So what does it mean in practice? If you were dragged before a court and all that mattered to whether you went free or went to prison was whether your conduct was reasonable, what would you do? We can’t exactly put this hypothetical cast of characters on the stand and ask them what they think. We don’t have some kind of objective measure or formula to look at (although judges have definitely tried, even pretending to do it algebraically). And we won’t correct in the other direction, either, by asking for a subjective opinion about whether you (or the police, or the judge) thought you were a reasonable person.
Instead, we ask twelve random people what they think, and whatever they decide, that’s law. “Reasonableness” in our system is considered a question of fact, and juries in most cases decide whether something is a fact or not. The consensus opinion of the jury stands in for our “reasonable person” and, through that, we find the objective standard of reasonableness we’ve been seeking. Objectivity through consensus.
Or, at least that’s what we say we’re doing. I think we’re doing something else, something beyond subjectivity or objectivity (or, at least, something that doesn’t require us to think about the difference between the two).
It’s a bit hard to explain, so let’s get at it sideways. To do that, let’s consider what it means for coffee to be unreasonably hot.
2.
When a 79-year-old Stella Liebeck had her grandson drive her to McDonald’s for some coffee, only to have the flimsy 90’s era Styrofoam cup detach from its lid to spill scalding, 180-degree coffee all over her lap, did McDonald’s serve her coffee that was “unreasonably” hot? The answer to that single question would decide whether McDonald’s would pay almost $3 million as compensation for third-degree burns on the most sensitive parts of her body, eight days in the hospital, and an experimental skin graft.
McDonald’s argued that the National Coffee Association recommended serving coffee at 180-185 degrees (and still does today), and it’s objectively reasonable to make decisions based on expert guidance, so the coffee was not unreasonably hot. But, a world-renowned expert in the treatment of burns (and, turns out, one of the doctors who tried to save President Kennedy’s life in Dallas) testified that 180 degrees is way too hot to safely drink, and it was objectively unreasonable of McDonald’s to rely on the expert opinion of coffee brewers as opposed to burn treatment specialists. So, is “reasonableness” defined by deference to authority? Is there an objective way to decide ahead of time which expert is the better authority? What measure do we use to weigh opinions on coffee temperature between coffee brewers and medical doctors?
McDonald’s was in a great position to answer all of these questions, well before Stella ever bought her cup of coffee, because what McDonald’s cares about is selling as much coffee as possible. That’s hard to do when their coffee is unreasonably dangerous, so it’s probably safe to say they’re not actively trying to kill people with their breakfast menu (counterpoint: the Big Breakfast with Hotcakes). To strike the right balance between maimed grandmothers and satisfied coffee drinkers, they’d probably hire some experts, probably from the National Coffee Association, to help them figure out the best (not safest) temperature for making the most popular coffee. They’d probably have a meeting (or twelve; they are a public company, after all) where they weighed the right balance between maximizing sales and paying the medical bills of injured grandmas, pick whatever coffee temperature lands in the sweet spot, and then they’d go for it.
It’s not that they don’t care about the grandmothers, it’s that they only care about those grandmothers as customers. Their customers are in the best position to tell them if the coffee is too hot. If the customers stop buying their coffee because it’s too hot, McDonald’s will listen. But if they keep buying hot coffee, McDonald’s will listen then, too. And if they don’t, Starbucks will.
Is that reasonable? It depends on what we care about. Under McDonald’s values, the answer is obviously yes, that’s completely reasonable. Those values prioritize the cheap, easy delivery of delicious coffee to as many people as possible, and deprioritize the pain and suffering of grandmothers. If we believe that businesses responding to their customers (that is, the market) are best positioned to decide how to give people what they want, even if it’s dangerous sometimes, then we might think that a system that breaks some grandmas to make some lattes is entirely reasonable (especially if it’s just a few grandmas per billion cups of coffee).
Or, after some thought, we might think the entire analysis above reflects a twisted, corrosive capitalistic worldview that poisons the souls of everyone exposed to it. We might think that, in a humane society, its unreasonable to leave decisions about safety to the person creating the danger. In other words, if we care about different things, we are going to think different things are reasonable.
Stella was in a great position to answer those questions, too, because what Stella cares about is her physical safety and comfort. McDonald’s doesn’t provide some essential service, without which we would all be less safe and less comfortable. Coffee is a luxury, not a need, and so the correct balance of satisfied coffee drinkers to maimed grandmothers is no maimed grandmothers. To figure out that balance, we should ask medical doctors to give their neutral opinion on whether coffee is unreasonably hot, because they don’t care about maximizing profits (well, maybe), they care about minimizing harm. It’s not that they don’t care about McDonald’s, it’s that they only care about McDonald’s as a service provider — a fungible one. If they get shut down for being unreasonable, then Starbucks will get the hint, fall in line, and take all their customers.
Is that reasonable? Again, depends what we care about. Under those grandmotherly values, the answer is obviously yes. Those values prioritize the safety of those most vulnerable in our society, and deprioritize the freedom to buy and sell anything that could threaten that safety. Here, we might believe that a watchful and inquisitive government is best positioned to decide how to protect grandmothers from the dangers of the world, so a system that makes coffee above a certain temperature illegal is entirely reasonable (even if it means the quality of coffee will be, on average, shit).
But, aren’t those both subjective? What’s the objective standard? To find it, we do what we always do in these situations — we kick it over to the jury and let them decide. Both sides are allowed to help them with that decision, by presenting arguments and evidence. What kind of evidence? Courts limit what we can present. I can’t bring scalding coffee to court, slap an exhibit marker in, and pour it on the laps of the jurors; so, the evidence of visceral experience is out of bounds. Courts will accept the testimony of experts, though — consultants from the National Coffee Association, or doctors from the burn ward. Jurors, as non-experts, are then asked a simple question: who do you believe?
Is that reasonable? Well, at least one thing is clear: the court values experts with knowledge, skill, experience, training, or education relevant to the question, and the ability of the jury to judge the credibility of those experts. Those values prioritize credentials and a meritocratic (or, at least, technocratic) hierarchy, and deprioritize other values like the efficient distribution of coffee, or the pain and suffering of Stella Liebeck, or the safety of other grandmothers not before the court, or economic freedom. The court might believe that an open debate between well-credentialed experts to a jury of normies (that is, the marketplace of ideas) is best positioned to decide the truth of whether a cup of coffee is unreasonably hot.
But is that “objectively” reasonable? It seems that all the court is doing is setting aside the values of McDonald’s and Stella Liebeck and imposing its own. It didn’t do that after some kind of neutral evaluation of those values. The court hasn’t weighed whether a society with access to cheap, easy, delicious coffee is happier, or stronger, or wealthier or more cohesive, or more loving, or more intelligent, or otherwise better than the alternative. The court didn’t analyze whether Stella Liebeck and people like her feel more safe, secure, and protected in a world where twelve random people decide the right temperature for coffee. The founders and keepers of the constitutional republic, the one that provides the court with the values it’s upholding, didn’t weigh those specific values, either. No one did. Is that reasonable?
What it seems we’re saying here, is that a system that gets it wrong sometimes, or that discounts the values of the parties before the court (or the community in which the court sits), is entirely reasonable as long as everyone gets a chance to pit their experts against everyone else’s experts.
You might agree with that system — for the record, I do (mostly). I believe the American civil justice system is one of the greatest wonders of the world (the criminal justice system, not so much). That it was not only conceived, but put into practice successfully (mostly), is a daily miracle. That system is a lot of things — a lot of good things — but it’s not objective. It might not even be reasonable.
Unless, of course, you share its values.
3.
What is reasonable is hopelessly tied to what we adopt as our preferences and our values, the things we like and the things we care about. I’m not sure we can escape that, and I’m not sure there’s some higher measure we can use to definitively say, “but these preferences and values are superior to those ones.”
How might I convince you that a preference for blue is better than one for red? Or a preference for a rave is better than one for an opera? How would I definitively show that happiness is more important than success? Or that equality is more important than freedom? How would I prove to you that safety is more important than plenty? Or that life is more fulfilling with a little more risk, even if it means a little more suffering? Maybe I could convince you all those are better for me, more important to me.
I’d probably try to point to some shared values, or to other values I believe you care about more than the ones you’re applying to operas or success or freedom or the color red. At best, I think, this really just amounts to me trying to convince you that you should see the world as I do. But I’m not sure I could do that “objectively” — maybe, hopefully, you could convince me otherwise.
But, as I sit here sipping my unreasonably lukewarm coffee, I’m not sure it’s worth your effort, because I think it might be nice to be free of the burden of trying to find an objective standard. Let’s rid ourselves of the legal fictions and the mind-reading, too. Instead, let’s try to do the hard internal and interpersonal work of stating clearly and honestly what we want, and what we care about. That’s a big ask, and maybe a ridiculous one for those who can’t, or won’t, do that kind of work (if so, it’s the fatal flaw in this framework, I suppose). What about our multitudes, our contradictions? What if we don’t know? What if it’s too painful?
I think our obsession with “objective” standards gives us permission to avoid engaging with those contradictions, those questions, those hard conversations with each other about what matters and where we might disagree. The stakes are never clearly defined, the tradeoffs never fully negotiated. Instead, we insist that other people should like and care about the same things we do because our preferences and values are “objectively” better; or, more charitably, we try our best to neutrally enforce a set of preferences and values that we have adopted from those around us. Less charitably again, we try to indoctrinate other people so they can see the world as we do.
Not that there’s anything wrong with moral indoctrination, in theory. People are busy, they’re trying to focus on their lives, and there’s a real cost to constantly questioning whether everything you do is right or wrong, good or bad. Professors and preachers, journalists and comedians, scientists and philosophers, they all serve an important role by teaching us (or, at least, exposing us to) what we should care about and what we should value. Some conformity helps grease social grooves, and keep the peace.
But, it’s important to be aware of what’s happening. Our moral teachers shouldn’t pretend they’re doing something else. There’s nothing wrong with individuals trying to persuade their neighbors as to what they think their preferences and values should be, or trying to persuade each other which tradeoffs between competing wants and cares are best. Let’s just be clear about what we’re doing.
You might say this sounds like an exhausting way to try to run a social circle, much less a society. I agree. Maintaining a multicultural, multiethnic, multi-ideological, democratic society is hard. But the alternative is disrespect for the ability of others to decide for themselves what matters. The alternative is a coercive hierarchy not clearly defined. The alternative, in other words, is what we’re dealing with today.
But we don’t have to build a new world order quite yet. Start with yourself. State your own preferences and values, out loud. What matters to you? What do you like? What do you care about? For most of us, this is actually a lot harder than it seems, because we don’t know. But it’s worth figuring that out.
It would be unreasonable not to.
Thanks to Vineeth Narayanan for helping me think through these ideas.