Line Drawing

By Professor David Phillips

A key activity of those involved with “law,” whether it’s in the context of creating law or applying law to given facts, is either to draw lines or to decipher on which side of a line a certain activity falls. The speed limit on a particular street or highway presents an obvious example.  Let’s say that the speed limit on a superhighway is 65 mph; one drives legally at or below that “line,” whereas one drives illegally above that speed limit and possibly subjects him or herself to a fine.  But when I say that law is about line-drawing, I mean such on a more embracing and hopefully sophisticated level.  And, to be realistic, even this simple initial example of a speed limit is far more complex than would at first appear, as we shall discover when returning to it later.  Read on to try some other examples first and through these examples discover some of the ideas you’ll struggle with as you proceed through the first-year of law school.

Let’s begin with regulation restricting emissions from a coal-fired utility plant to below a certain level. The regulation is a line drawing exercise.  Have regulators arbitrarily drawn this line?  Hopefully not.  The real work goes into determining the values sought to be achieved or protected when drawing such a line, with particular attention to the risk of an error in line-drawing one way or another.  What are these values?  Chief among these would be protection of the environment, but the costs of such regulation would also have to considered, including the cost of economic activity that is proscribed or at least inhibited by such a restriction.  Otherwise, substantially all such plants would be forbidden, regardless of the level of emissions involved.  Nor do all considerations that regulators take into account have equal weight, particularly when health, especially human health, would be adversely affected by drawing a too lenient line.  Since emissions can adversely affect the air we breathe, we expect regulators to draw a line that gives an extra margin of safety to the environmental values over the economic ones.  At times, however, regulators, bowing to moneyed-industrial interests, are tardy in formulating the necessary regulations, that is, in drawing necessary lines.

“Applying” a line drawn by others (whether by a legislature or regulatory agency or precedent formed by prior judicial decisions) poses its own challenges. As an illustration, consider “reasonableness,” a seemingly simple standard that cuts across many legal fields.  Reasonable conduct or acting on the basis of a reasonable belief usually results in a lack of legal liability; falling on the other side of the line, unreasonable action or belief usually spells liability.  This legal line also usually connotes that the actor is being judged by some external standard, for example, what would most other people do or believe under similar circumstances. Let’s explore the task that fact finders confront in deciding whether conduct or belief is reasonable or unreasonable in three different first year courses.

In Contracts, for example, a key question is whether particular words or actions of the parties have even formed a legally enforceable contract. (Presumably we don’t want every utterance to give rise to legal liability.) So let’s say that two parties in a bar trade numerous barbs about the other’s economic circumstances.  Perhaps to test the other party’s financial ability and after numerous drinks, one of these parties, a farmer, offers to sell his farm for a relatively low sum, an utterance recorded on a napkin, and the other party jots “agreed” on the napkin.  Does this situation create legal liability if the farmer then says, “only kidding?”  Has a contract been formed?  True, formation of a contract requires intent on both sides, but regardless of what’s in the farmer’s mind, to determine contractual intent the fact finder is called to make a determination of whether the other party reasonably believed that the farmer made a serious offer.  In an actual case with similar facts — studied in just about every law school — the fact finder determined that a contract existed.  As you might imagine, this particular application of the line of reasonableness is hotly debated.

Perhaps no subject requires fact finders to determine on which side of the line of reasonableness conduct falls than in Torts, another first year law school subject. The dominant standard for liability is negligence, and whether a defendant has been negligent depends upon whether she has acted reasonably in the circumstances.  But why not use a standard that would be easier for a fact finder to apply, such as strict or absolute liability.  If the actor sought to be held liable committed a particular act that caused harm, the actor would be liable regardless of whether the actor acted reasonably.  Determination of an act and causation, without more, is easier than one that adds to the mix the reasonableness or unreasonableness of the actor.  While there are quite a few situations where the law replaces negligence with strict liability, ease of determination is only one factor that counts in determining a correct standard or line.  Another is whether the particular activity gives rise to a heightened risk of harm.  If it doesn’t, we don’t want to discourage people from those normal activities such as driving, biking, gardening and the like that might incidentally but without fault result in harm to another.  But, just like in the law of Contracts, the fact finder’s task of differentiating the reasonable from the unreasonable poses challenges.

To cite a hot topic studied in Criminal Law, another first year course, reasonableness is a standard to determine whether the use of force by police officers in self-defense is justified, particularly where that use of force results in the suspect’s serious injury or death.  The officer’s claim of self-defense will depend upon whether he reasonably believed that force was about to be used against him and responded with only proportionate force. The lines of reasonable belief and proportionality implicate many considerations, among them the relative sizes of the officer and suspect, the existence and danger posed by a suspect’s weapon – was the weapon poised for a strike? — proximity of the parties, and the like. This challenging exercise in line application, moreover, is fraught with broader political and social implications in a diverse society where disproportionately police officers and criminal suspects differ in ethnicity and/or color.

Let’s return, finally, to the seemingly simplistic line drawing and line application we started with – the speed limit of 65 miles/hour on a highway. Will a driver probably get a ticket for going 66 mph? 68 mph? Or even 70 mph? My guess is that, in most jurisdictions, drivers only face a serious risk of fine by driving significantly above the speed limit.  So if one definition of “law” is a prediction of what law creators and law appliers will do when faced with certain actions, we must draw a key distinction you will also confront in law school – namely, the distinction between law “in action” and law “on the books.”  To which of these should we pay greater attention?  Get ready for a challenging ride in the first year of law school.  Line drawing and line application may appear simple, but in reality they pose difficult, interesting questions.


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