What does the law demand when it requirescitizens to conform to standards ofreasonableness? I propose and defend theview that the law should demand thatcitizens conform their behavior to someactual conduct in society. I contrast thisidea against what might be called the``empty vessel'' view of reasonableness,where the standard is understood tofunction like an empty vessel in the law,allowing courts to use various norms andmoral judgments to determine what seemsreasonable in the circumstances. Theempty vessel account is the more commonapproach for understanding reasonableness,but (...) it leaves obscure whether and howassessments about appropriate conductconnect with facts about citizens' actualconduct. I argue for a ``binocular'' viewthat focuses our attention on actualpractices and thereby establishes howthese standards provide a stable guide toconduct and support the rule of law. (shrink)

Courts have resolved a range of controversies by casual appeal to the state's interest in “potential life” that Roe held capable of overriding even fundamental rights. My analysis of this potential-life interest reveals its use to mean not one but four species of concern. I call these prenatal welfare, postnatal welfare, social values, and social effects and demonstrate how they operate under different conditions and with varying levels of strength.