The uber-reasonable, Reasonable Test

The reasonable standard is the common law standard (judge-made) that determines liability or guilt based on whether the conduct of the defendant was reasonable or not. If it was, no liability. If it wasn't, liability.

I think it's fair. People (and the law) expect you to act with reasonable due care with respect to the safety of others. You should expect the same. However, it's not the standard with which I take issue, it's how the standard is applied.

Who applies the standard? Hopefully the jury, but very often, well, the judge.

Therein lies my concern.

The standard of due care inferred by a judge will be a more rigid, arbitrary, and ultimately higher standard than the standard of due care inferred by a jury. Compare the mentality of the average citizen v. the mentality of a judge. The lens through which the two groups view the world is different. After all, most people are idiots and most judges aren't.

Therefore, at the end of the day, what we have is not a reasonable test, but an uber-reasonable, reasonable test.

Doesn't seem fair.