Clapham Omnibus Research Articles

From Clapham to Salina: Locating the Reasonable Man

“The man on the Clapham omnibus” is an often cited but poorly understood name for the standard of reasonable care in tort. It originated in a 1903 decision in which this formula was used not to articulate a legal standard but to describe an average person whose views have no legal significance. This figure finds a cousin in another personification, as “the man who takes the magazines at home, and in the evening pushes the lawn-mower in his shirt sleeves.” Both formulations have complex histories that help to underscore their inaptness as descriptors for the standard they are used to represent. These two examples also help to show, more generally, why a personified standard (“the reasonable person”) tends to introduce problems that do not arise with a more abstract one (“reasonableness,” “reasonable care”). Many critics have shown that the “reasonableness” standard is susceptible to problems of bias and framing. Personifying the standard invites the inappropriate use of individuated figures with particular features (e.g., a bus rider from a London suburb) that only worsen these problems. This article traces the history of these two standards, tries to explain how they moved from descriptive to normative use, and then turns to problems with personified standards more generally, showing how some superficially appealing reasons for using a personified standard prove to be unpersuasive.

Law, Coercion and Folk Intuitions.

In discussing whether legal systems are necessarily coercive, legal philosophers usually appeal to thought experiments involving angels or other morally driven beings who need no coercion to organise their social lives. Such appeals have invited criticism. Critics have not only challenged the relevance of such thought experiments to our understanding of legal systems; they have also argued that, contrary to the intuitions of most legal philosophers, the 'man on the Clapham Omnibus' would not hold that there is law in a society of angels because the view that law is necessarily coercive 'enjoys widespread support among laypersons'. This is obviously an empirical claim. Critics, however, never systematically polled the 'man on the Clapham Omnibus'. We boarded that bus. This article discusses findings from five empirical studies on the relationship between law and coercion.

Reasonableness as Normality

A classic debate concerns whether reasonableness should be understood statistically (e.g., reasonableness is what is common) or prescriptively (e.g., reasonableness is what is good). This Article elaborates and defends a third possibility. Reasonableness is a partly statistical and partly prescriptive “hybrid,” reflecting both statistical and prescriptive considerations. Experiments reveal that people apply reasonableness as a hybrid concept, and the Article argues that a hybrid account offers the best general theory of reasonableness. First, the Article investigates how ordinary people judge what is reasonable. Reasonableness sits at the core of countless legal standards, yet little work has investigated how ordinary people (i.e., potential jurors) actually make reasonableness judgments. Experiments reveal that judgments of reasonableness are systematically intermediate between judgments of the relevant average and ideal across numerous legal domains. For example, participants’ mean judgment of the legally reasonable number of weeks’ delay before a criminal trial (ten weeks) falls between the judged average (seventeen weeks) and ideal (seven weeks). So too for the reasonable num- ber of days to accept a contract offer, the reasonable rate of attorneys’ fees, the reasonable loan interest rate, and the reasonable annual number of loud events on a football field in a residential neighborhood. Judgment of reasonableness is better predicted by both statistical and prescriptive factors than by either factor alone. This Article uses this experimental discovery to develop a normative view of reasonableness. It elaborates an account of reasonableness as a hybrid standard, arguing that this view offers the best general theory of reasonableness, one that applies correctly across multiple legal domains. Moreover, this hybrid feature is the historical essence of legal reasonableness: the original use of the “reasonable person” and the “man on the Clapham omnibus” aimed to reflect both statistical and prescriptive considerations. Empirically, reasonableness is a hybrid judgment. And normatively, reasonableness should be applied as a hybrid standard.

Entanglement and the Metaphysician on the Clapham Omnibus

This paper explores some of the consequences of quantum entanglement for the mainstream metaphysician. The basic idea that entanglement has metaphysical consequences in the form of some kind of “holism” is familiar in the philosophy of physics literature, and finds its way into recent metaphysics, in discussions of failure of Humean supervenience, monism and emergence, for example. The principle aim here is to highlight some questions of detail that occur when attempting to make contact with those metaphysical debates as they occur in the metaphysics literature-details that matter less when the aim is just to show that there is some novelty in entanglement, but more when articulating its precise nature. The conclusion is broadly that the differences are not as great as is sometimes supposed between entanglement and more familiar phenomena already accommodated in prominent metaphysical schemes.

The Skilled Person: an Evolving Concept

The skilled person is a concept central to patent law, underpinning the analysis of obviousness, sufficiency, claim construction, novelty, added matter and priority. Identifying such a person correctly, particularly the level of skill and the common general knowledge that they should possess, is critical to determining whether a patent is valid and/or infringed and has significant implications for the pharmaceutical industry. However, the concept can be difficult to define. Once referred to as 'The man on the Clapham omnibus' of patent law, the skilled person is a technician who is skilled in the art yet wholly devoid of imagination. Nevertheless, his attributes and knowledge, which are context-dependent and vary from art to art, are continually evolving. This article will look at the evolution of the skilled person, focusing on the implications for the future of pharmaceutical patents and patent litigation.

Book Review: The Man Under the Clapham Omnibus (The search for patient safety and justice)

Book Review: The Man Under the Clapham Omnibus (The search for patient safety and justice)

Review of ‘BipolART’ by D. N. Wheatley (Springer, 2012)

This delightful book comprises just 121 pages of main text, but in that short compass Denys Wheatley manages not only to convey much about bipolar disorder from the sufferer’s point of view but also to provoke the reader into pondering the nature of creativity in art and science. At the same time he contrives to entertain and to please the eye. Wheatley draws in part on his long personal experience of extreme mood swings, making stimulating observations about the value of art (particularly doodling) as therapy, and in part on his profound and wide-ranging scientific knowledge and his love of great paintings and music. The quality of his art work is well above ‘amateur’ standard, and the often abstract forms show the influence of his decades of research in zoology and cell biology, a fascination with geometry, the visual environment, and Europe’s cultural heritage. In addition to the reflective chapters and the analytical comments on individual drawings and paintings, the author gives us a fascinating stage-by-stage guide to the process by which a doodle can grow from insignificant beginnings into an eye-catching piece of art. He almost tempted me to take up doodling, but I doubt whether I could create any end-product to match his. It would have been all too easy for a book of this kind, the personal reflections of a ‘manic-depressive’, to degenerate into navel-gazing and self-pity. But not for a single sentence does ‘BipolART’ commit that literary sin. Once I started to read the book I couldn’t put it down; only the irresistible urge to linger on individual pictures, relishing their beauty and intricacy, retarded my progression from first page to last. There are a few minor editing lapses – typographical errors and grammatical infelicities – but they impaired neither my understanding nor my enjoyment. This is a book that could be read for both pleasure and profit by psychologists, psychiatrists, art critics and philosophers interested in creativity, but above all by the interested non-specialist – the ‘man on the Clapham omnibus’, as Wheatley himself puts it. I recommend it warmly.

Book Review: The Penal Crisis and the Clapham Omnibus: Questions and Answers in Restorative Justice

Book Review: The Penal Crisis and the Clapham Omnibus: Questions and Answers in Restorative Justice

Dual Parental Consent

The President of the Family Division held that operation shall only be carried out with the approval of both parents. This places a binding legal obligation on the surgeon to seek dual parental consent without any latitude in the interpretation of this judgement. Additionally, it is assumed that doctors are familiar with the legal environment in which they have to practice. This is no different from the ‘man on the Clapham omnibus’ who is deemed to be familiar with the law of the land. Language difficulties, absence of one parent, etc. do not exonerate the surgeon from failure to obtain dual consent. Second, the presence of two adults with a child at a consultation may not always imply that the former are the parents of the latter. Also, the question whether they are the genetic parents needs consideration. It is assumed that the judge referred to genetic parents in his judgement. The authors surprisingly view that a breach in professional trust may occur from inquiring about parenthood at a consultation involving a child. On the contrary, it is vital that this be established at the outset. On more than one occasion in the past, the medical profession has been exhorted to ‘think the unthinkable’. Pursuing the need for dual consent requires the surgeon to ensure that: Both adults are the legal parents of the child. The adults understand the matter being discussed and provide consent that is informed and devoid of coercion or misunderstanding. Translation that may be required is independent. The child's view, where practical, is considered. In the absence of dual consent the surgeon should not proceed with the operation, for which there is no medical reason or urgency.

Enteron, Testosterone, and Wildcom

This case highlights the weaknesses of the accrual basis of accounting which provides the theoretical foundations for both the U.S. Generally Accepted Accounting Principles (GAAP) and the International Financial Reporting Standards (IFRS), in light of recent revelations by several high profile instances of fraudulent financial reporting. While accounting theory is often addressed in an accounting doctoral seminar limited to some high priests only, the implications of accrual-deferral accounting are much more profound and beguiling. It projects an aura of objectivity and scientific precision in measurement that are sorely missing in modern accounting practice. Fortunately or perhaps not so fortunately most people (99%) do not understand the degrees of managerial discretion allowed by both the GAAP and the IFRS in preparing financial statements. While the proponents of the the very strong form of efficient market hypothesis (EMH) contend that an efficient market can see through and peep through any potential foul play managers, individual investors are well advised to look at these financial statements with an appropriate degree of skepticism. Financial statements are not prepared for the man on the Clapham omnibus to take a pleasure reading ride. It is an artful handicraft of the accountants, by the accountants, and for the accountants to interpret only! Naive investors might be up for surprises if they are in a self-help mode.

Symposium on ‘Human evolution: ancestors and relatives’

Symposium on ‘Human evolution: ancestors and relatives’

The informed user: a step up from the Clapham Omnibus

In proceedings for infringement of a registered Community design, Lewison J considered who is an ‘informed user’ and what is the ‘overall impression’ of a design.

Miss, Mister, Doctor: how we are titled is of little consequence

Miss, Mister, Doctor: how we are titled is of little consequence

The Reasonable Person, The Pursuit of Justice, and Negligence Law

In common law jurisdictions, the reasonable person is a commonly encountered ¢gure.The reasonable person and the associated idea of reasonableness feature in a number of ¢elds, notably negligence law, criminal law, administrative law, and the law relating to sexual harassment in the workplace. In these areas of the law, judges invoke the reasonable person as a standard by reference towhich they assess the conduct of defendants, claimants, and the decisions of public o⁄cials. But who is the reasonable person? In negligence law, judges and commentators have emphasised the reasonable person’s ordinariness. Thus, they have spoken of the ‘man’ (or, nowadays,‘person’) on the Clapham omnibus or the Bondi tram. This emphasis on ordinariness brings with it a concern with community standards as relevant to the question ‘What is reasonable?’ Hence the reasonable person has been described as ‘the ordinary citizen’ who seeks to act on those considerations that regulate ‘community behaviour’. Here, we are presentedwith a picture of an addressee of the law who is co-operative (perhaps even other-regarding) and, as such, ready to play his or her unremarkable, but practically useful, part in community life. Moreover, descriptions of this sort bespeak negligence law’s com-

Following the Man on the Clapham Omnibus: Social Science Evidence in Malpractice Litigation

This article responds to proposals to admit statistical evidence from empirical studies of actual health care practices to prove prevailing health practice standards in malpractice litigation by arguing that the case for doing so has numerous weaknesses that advocates of admitting such data commonly ignore. A fundamental concern is that the standard of practice defense co-evolved with prevailing modes of proof and might have been different had proof through experts not allowed for an aspirational as well as an empirical element to reach the jury. The article also argues that generating reliable statistical evidence of standard medical practice can be extraordinarily difficult, is likely to disguise expert subjectivity rather than eliminate it and can be expected to replace one kind of expert battle with another. Recognizing the weaknesses of current systems of expert proof, the article suggests a second best solution which would allow a limited role for statistical evidence and argues that the first best solution is to change the prevailing health practice standard defense to a competent physician defense that accommodates both empirical and other expert testimony.

The Clapham Omnibus Revisited: Liberalism against Democracy?

During the 1950s and 1960s, Patrick Devlin and H.L.A. Hart engaged in a heated intellectual exchange over the bases and limits of toleration in democratic societies. By most accounts, Hart is said to have won the debate by successfully refuting Devlin's ‘disintegration thesis’ in favour of liberal principles of political morality. This article draws attention to an unnoticed but essential element in Devlin's case: an appeal to certain principles of democracy. Although Hart is on firm ground in rejecting the disintegration thesis, Devlin's democratic argument confronts Hart with a potentially devastating contradiction, for it rests on a value that liberals themselves accept — that is, equality. Because both supporters and critics of Devlin overlook the element in the debate that poses the most interesting questions about the relation between liberalism and democracy, contemporary students of liberal-democratic thought have good reason to revisit this classic debate.

What is mentoring?

If asked, the man on the Clapham omnibus would probably say that mentoring was a good thing. The assumption is that he was clear what it meant. The word has been around since classical times,1 but it seems to mean something different to each group who uses it. If a review process called mentoring is to be adopted in hospital medicine, all those involved need to agree what it is being done and why.

Microfoundations and the Demand for Money

The reader should note that I write this piece in a style that aims to be accessible to that much neglected representative agent, ‘the woman on the Eurostar train’. Hence, unlike the ‘man on the Clapham Omnibus’ I assume my intrepid traveller has reasonable knowledge of monetary economics and econometrics but not of the details of the demand for money. Space constraints force me to indulge in a certain amount of poetic licence, but I hope this results in poetic justice. There have been many wars fought on this particular battlefield, some with almost religious zeal. On the theoretical side of the debate we sometimes have the equivalent of religious fundamentalists be they Muslims, Jews, Christians etc. who would dismiss almost any ‘evidence’, unless it were associated with a ‘strong microtheoretic’ basis as laid down in the Koran, Talmud or Bible. The empirical side encompasses, agnostics, atheists as well as ‘Born Again Econometricians’, Pure theorists inhabit the sunlit uplands, while applied economists and policymakers flounder in the muddy plain below, occasionally gaining solace from their copy of ‘Zen and the Art of Motorcycle Maintenance.’

Microfoundations and the Demand for Money

The reader should note that I write this piece in a style that aims to be accessible to that much neglected representative agent, 'the woman on the Eurostar train'. Hence, unlike the 'man on the Clapham Omnibus' I assume my intrepid traveller has reasonable knowledge of monetary economics and econometrics but not of the details of the demand for money. Space constraints force me to indulge in a certain amount of poetic licence, but I hope this results in poetic justice. There have been many wars fought on this particular battlefield, some with almost religious zeal. On the theoretical side of the debate we sometimes have the equivalent of religious fundamentalists be they Muslims, Jews, Christians etc. who would dismiss almost any 'evidence', unless it were associated with a ' strong microtheoretic' basis as laid down in the Koran, Talmud or Bible. The empirical side encompasses, agnostics, atheists as well as ' Born Again Econometricians', Pure theorists inhabit the sunlit uplands, while applied economists and policymakers flounder in the muddy plain below, occasionally gaining solace from their copy of ' Zen and the Art of Motorcycle Maintenance.' In general, in economics, we do not have the luxury of ' controlled experiments' (as is the case in the natural sciences). What distinguishes good 'microfoundations' from bad, and how to weight priors and statistical evidence is subject to much dispute. (Leamer, I983; Hendry et al., I990). As in religion, sometimes, there is the occasional ' miracle' proclaimed. After a suitable interval a new Saint may be declared and disciples flock to the new shrine. Later, doubts may arise as to whether a miracle really did occur. Human behaviour is difficult to explain let alone predict, so the search for the equivalent of the Holy Grail, Ark of the Covenant etc. is bound to be arduous. In scholarly journals we generally read of the 'success' of the demand for money. Like diplomats, 'who are sent abroad to lie for the good of their country', publication may require applied economists to be somewhat 'economical with the actualite' (Lovell, I983; Leamer, I983). In this article I want to be as honest as possible about our success and failures in this area. The prior information an ' armchair economist' would consider when thinking about the demand for money over the past 40 years in Western industrialised countries which have experienced moderate inflation' might

The Council, the Computer and the Unfair Contract Terms Act 1977

persons or persons with 'protected interests.' Nor does it involve a lot of ad hoc reasoning whenever new factual situations are confronted. Nor does it involve a denial that policy is at the root of all decisions in this area, no matter what language is used to disguise this fact. On the contrary, what this analysis of Marc Rich does do is emphasise that no matter how much judges and others may make protestations to the contrary, they cannot help but give effect to a more or less consistent policy in which theyalbeit perhaps subconsciously-strongly believe. And so it should be, for if no consistent patterns of judicial behaviour were there to be discovered, how could lawyers ever hope to advise their clients more accurately than could be done by the lay passengers on the Clapham omnibus?